The State of Western Australia v Heath - [2015] WASC 172

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- HEATH [2015] WASC 172

CORAM: SIMMONDS J

HEARD: 14 & 17 APRIL 2015

DELIVERED : 29 APRIL 2015

PUBLISHED : 18 MAY 2015

FILE NO/S: INS 195 of 2014

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
TAYLOR EDWARD HEATH
Accused

Catchwords:

Criminal law - Admissions and confessions - Admissibility at common law - Whether burden of proof as to voluntariness discharged - Exclusion on ground of unfairness - Admissions to police officer not recorded audiovisually - Admissibility of evidence - Section 118 and s 155 of Criminal Investigations Act 2006 (WA)

Legislation:

Criminal Code (WA), s 570D (repealed)
Criminal Investigations Act 2006 (WA), s 118, s 155
Criminal Procedure Act 2004 (WA), s 98

Result:

Application dismissed

Category: B

Representation:

Counsel:

Prosecution : Ms C A Fletcher
Accused: Mr M A Perrella

Solicitors:

Prosecution : Director of Public Prosecutions (WA)
Accused: Perrella Legal

Case(s) referred to in judgment(s):

Bentink v Nguyen [2004] WASCA 211
Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138
Floyd v The State of Western Australia [2013] WASCA 33
MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512
Petty v The Queen [1991] HCA 34; (1991) 173 CLR 95
R v Lee [1950] HCA 25; (1950) 82 CLR 133
R v Murcott; R v Johnston [2005] WASC 30; (2005) 31 WAR 198
R v Ostojic (1978) 18 SASR 188
R v Williams (1992) 8 WAR 265
The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285
Wells v The State of Western Australia [2013] WASCA 124
Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1
SIMMONDS J:
(This judgment was delivered extemporaneously on 29 April 2015 and has been edited from the transcript.)

Introduction

These are the reasons for decision on an application (the application) under Criminal Procedure Act 2004 (WA) s 98 for an order to permit the admission of evidence of certain admissions (the admissions) for the purposes of a forthcoming criminal trial.
The application dated 9 January 2015 is for an order that:
In any trial on indictment 195 of 2014 the State is permitted to lead evidence of unrecorded admissions made by the accused to Constables Shane Edward Osborne and Jacob Mitchell Kenny on 4 June 2012, and referred to at [9] of Constable Osborne's witness statement dated 2 August 2012 and [9] of Constable Kenny's witness statement dated 30 August 2012.
This decision follows a hearing of the application at which the two named police officers to whom the admissions referred to were made testified. In addition, another police officer, Constable Cheryl Anne Bell, testified. She was present at the scene for at least part of the time the other two officers were there.
As both counsel accepted, the application raises questions of:
(1)whether the State has shown a basis at common law for the receipt into evidence of the admissions;
(2)if the State has done so, whether the defence has made out that the admissions should be ruled inadmissible on the ground of unfairness;
(3)if the defence has not done so, whether the rule concerning the inadmissibility of unrecorded admissions in Criminal Investigation Act 2006 (WA), s 118(3) (the inadmissibility rule) applies; and
(4)if the inadmissibility rule does apply, whether one or other of the two classes of exception to the inadmissibility rule applies, being the exception in s 118(3)(b)(i), read with (1) ('reasonable excuse'); and the exception in s 118(3)(b)(ii), referring to s 155(2) ('the desirability of admitting the evidence outweighs the undesirability of admitting the evidence').
From now on, I refer to these as question (1), question (2), question (3) and question (4), respectively.
It will be seen that I am of the view that on my conclusions on question (1) and question (2), I do not have to arrive at final conclusions on question (3) and question (4).
It will further be seen that I have determined I should not grant the application.

The statutory background

I set out Criminal Investigation Act s 118 in relevant part, as follows:
118.Admission in serious case inadmissible unless recorded
(1)In this section -
admission means an admission made by a suspect to a police officer or a CCC officer, whether the admission is by spoken words or by acts or otherwise;
…
reasonable excuse, for the absence of an audiovisual recording of an admission, includes -
(a)the admission was made when it was not practicable to make an audiovisual recording of it;
(b)equipment to make an audiovisual recording of the admission could not be obtained while it was reasonable to detain the suspect;
(c)the suspect did not consent to an audiovisual recording being made of the admission;
(d)the equipment used to make an audiovisual recording of the admission malfunctioned.
…
(3)On the trial of the suspect for the offence, evidence of any admission by the suspect is not admissible unless -
(a)the evidence is an audiovisual recording of the admission; or
(b)in the absence of an audiovisual recording of the admission -
(i)the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for the absence; or
(ii)the court decides otherwise under section 155.
(4)Subsection (3) does not apply to an admission by a person made before there were reasonable grounds to suspect that he or she had committed the offence.
Criminal Investigation Act s 155 reads as follows:
155.Inadmissible evidence, court may allow admission
(1)This section applies if under another section a court may make a decision under this section in relation to evidence that is not admissible in proceedings in the court.
(2)The court may nevertheless decide to admit the evidence if it is satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.
(3)In making a decision under subsection (2) the court must take into account -
(a)any objection to the evidence being admitted by the person against whom the evidence may be given;
(b)the seriousness of the offence in respect of which the evidence is relevant;
(c)the seriousness of any contravention of this Act in obtaining the evidence;
(d)whether any contravention of this Act in obtaining the evidence -
(i)was intentional or reckless; or
(ii)arose from an honest and reasonable mistake of fact;
(e)the probative value of the evidence;
(f)any other matter the court thinks fit.
(4)The probative value of the evidence does not by itself justify its admission.
The State accepts that, of the listed specifics in Criminal Investigation Act s 118(1) 'reasonable excuse', only (a) is possibly relevant. I note that the specifics are not exhaustive: see Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1 [55] (McLure P, Buss JA agreeing). However, the State does not rely on the generality of 'reasonable excuse'.
The State further accepts that in order to show the admissions are admissible it is necessary to show a basis upon which they are admissible at common law. It will be seen that the State at first contended that there were two such bases, either of which the State submitted was sufficient. However, ultimately the State pressed only one.
In the remainder of these reasons I describe the allegations in the prosecution for the forthcoming trial.
I then turn to the evidence before me as to the admissions, including the circumstances under which the admissions were made.
I then describe and apply the law applicable to each of question (1) to question (4) above.
The final section of these reasons is my overall conclusion and call for orders.

Factual background as alleged

The following are matters of allegation that are the basis for the prosecution.
The accused faces four charges on his indictment dated 6 August 2014. There are two charges of wilful and unlawful damage, of a Mitsubishi Magna (the Magna) and of a Holden Caprice (the Caprice), respectively. There is a further charge of doing an act as a result of which bodily harm was caused to another. The final charge is of wilful and unlawful destruction of a motor vehicle, a Toyota HiLux (the HiLux), by fire, that is, an offence of arson.
The statements of material facts for this alleged offending are to the following effects.
On Monday, 4 June 2012, at about 2.15 am, the accused went to an address in Morley (the complainant's residence). There he spoke to the complainant. She asked him to leave. He did.
Immediately thereafter the complainant heard a loud smashing noise from the front of the complainant's residence. She went outside where she saw that the rear window of the Magna had been broken.
The complainant then moved towards the roadway where she observed the accused sitting in the driver's seat of his vehicle, a Toyota Ascent (the Ascent).
The Caprice was parked on the roadway in front of the complainant's residence.
The accused began to drive past the complainant's residence. The complainant saw him swerve the Ascent, striking the Caprice.
The accused then called out to the complainant, saying 'Move your fucking car out of the way'.
The accused then reversed the Ascent and drove forward, striking the Caprice again.
The complainant, fearing for her safety, attempted to move off the roadway. The accused again drove the Ascent striking the Caprice, causing it to move forward.
The complainant seeing the Caprice moving had jumped towards the lawn area and fallen to the ground. At that time the Caprice had again been struck by the Ascent, causing the Caprice to lift off the ground. Upon dropping back to the ground the Caprice had struck the complainant on the lower leg area.
The complainant managed to get off the ground and return inside the complainant's residence.
The accused left the area and returned to his home address in Morley (the accused's home address). The accused's home address was two streets from the complainant's residence.
Upon returning to the accused's home address, the accused had entered the rear yard where the HiLux was parked.
The accused set fire to the HiLux. It was completely destroyed.
Fire and Emergency Services (FESA) attended at the scene at the accused's home address to extinguish the flames. Police attended there also where they spoke to the accused.
The accused stated, when spoken to, 'I set fire to my own car'.
Enquiries revealed that the accused had never owned the HiLux.
All three of the Magna, the Caprice and the HiLux belonged to the complainant.
It was not in contest that the principal issue for the trial of the accused will be that of identity.

The admissions in their context

I turn now to the evidence before me for the purposes of the application.
It is common ground that on 4 June 2012 Officers Osborne and Kenny were on night shift at Mirrabooka Police Station, conducting uniformed patrols. At 3.33 am they were dispatched to the accused's home address. However, there was a difference between the evidence of the two police officers as to the purpose for their dispatch.
Officer Kenny, who was operating the computer in the police vehicle displaying the relevant information, testified it was to execute an arrest warrant and prior to their arrival he was not aware of a fire (14 April 2015, cross‑examination, ts 55).
Officer Osborne, who was driving the police vehicle, testified that the purpose as he recalled it was to assist with a vehicle fire (14 April 2015, examination‑in‑chief, ts 72; following some questions of my own, cross‑examination, ts 86 ‑ 87).
When Officers Osborne and Kenny arrived at the accused's home address, on the evidence of both of them, they saw a FESA vehicle and officers. However, they did not see a fire or a burnt vehicle, although Officer Osborne testified he smelt smoke (14 April 2015, examination‑in‑chief, ts 69).
There was some difference in the evidence whether there were other police officers there when Officers Osborne and Kenny arrived. Officer Kenny testified that, when the police vehicle Officer Osborne was driving arrived at the accused's home address, another police vehicle was there as well as FESA (14 April 2015, examination‑in‑chief, ts 51). For his part, Officer Osborne initially testified he was 'not sure' if other officers were there at that time (14 April 2015, cross‑examination, ts 87, source of quotation). However, he later testified that Officer Bell arrived after him and Officer Kenny (14 April 2015, cross‑examination, ts 95). Officer Bell, who was with her partner, an Officer Lawrence, testified that when she and her partner arrived at the accused's home address Officers Osborne and Kenny were already there talking to a male in the driveway, who I understood to be the accused (14 April 2015, examination‑in‑chief, ts 97 ‑ 98). On the testimony of Officer Bell, she and her partner were present at at least one point when the accused was speaking to Officers Kenny and Osborne, although it is not apparent from her evidence or any other evidence whether she was present when he made the admissions. Officer Bell testified she did hear one of the two officers ask the accused who owned an orange vehicle in the rear of the premises, and he replied he did (see 14 April 2015, cross‑examination, ts 99 ‑ 100). However, Officer Bell did not hear the officers or either of them say anything else other than that the accused was under arrest on a bench warrant (14 April 2015, examination‑in‑chief, ts 100 ‑ 101).
Both Officers Kenny and Osborne testified that not long after they got out of the police vehicle the accused approached them (Officer Kenny: 14 April 2015, examination‑in‑chief, ts 50, 'fairly much immediately'; Officer Osborne: examination‑in‑chief, ts 67 '[a]fter [Officer Osborne had got out and had been] speaking to the fire officer and [had been] told that there was a vehicle they were attending to'). However, there are sharp divergences between their evidence as to what happened next.
Officer Kenny testified he was approached by the accused, from whom he requested details as to his name, and after the accused provided them, Officer Kenny then 'immediately' placed the accused under arrest on an outstanding warrant, stating those matters to the accused and placing one of his arms on the accused (14 April 2015, examination‑in‑chief, ts 50). Officer Kenny further testified that immediately after he stated the accused was under arrest in that way the accused said he thought he had something outstanding (14 April 2015, examination‑in‑chief, ts 52). Officer Kenny also testified that at that time Officer Osborne cautioned the accused, by which Officer Kenny indicated Officer Osborne did not simply inform the accused he was under arrest and explain why (14 April 2015, cross‑examination, ts 57). I understood Officer Kenny to refer to a caution in the sense of an indication to the accused he had a right to silence and anything he said could be used against him: see, on that understanding of a caution, Bentink v Nguyen [2004] WASCA 211 [21] (Barker J).
Officer Kenny testified that the two officers began to escort the accused back to their police vehicle. Officer Kenny testified it was at that point, 'the best part of between, maybe, five to 10 seconds. It was a very short span' after Officer Osborne's caution (14 April 2015, examination‑in‑chief, ts 50 ‑ 51, read with ts 57, the latter is the source of the quotation), that the accused made the admissions, in the following terms (14 April 2015, examination‑in‑chief, ts 50 ‑ 51):
Once we have got, I would say approximately five metres towards the vehicle, Mr Heath stated, 'It's my vehicle. I torched it. It doesn't matter.'
In his cross‑examination, there was an exchange with Officer Kenny as to the words the accused used as follows (14 April 2015, ts 56 ‑ 57):
Did he say, 'It's my vehicle. I torched it. Would it matter,' those words? Instead of, 'It doesn't matter,' 'Would it matter'?   Sorry. Could you - could you say that question again. I don't understand.
I'm just asking you to think back to what he said to you about the torching of a vehicle?   Okay. Yes.
First of all, can you remember if he put an inflection on any of those words or a particular emphasis on any of those words?   No, not at all.
And do you recall if he said it as in a rhetorical question?   No. He said it more as a statement rather than a rhetorical question.
That's how you perceived it?   That's how I perceived it. Correct.
But he was slurring his words?   He was.
And how long after he had been cautioned did he say this, these words, the words, 'It's my vehicle. I torched it. It doesn't matter'?   It would be the best part of between, maybe, five to 10 seconds. It was a very short span.
Officer Osborne testified that after the two officers had got out of the police vehicle, and Officer Osborne had spoken to fire officers, the accused came up to the two police officers where they were behind their vehicle. He tried to speak. Officer Osborne understood him to say something about a burnt or torched car, uttering the words 'I burnt me car' or something like that, which the accused repeated. It was at that point on Officer Osborne's testimony that Officer Kenny asked the accused for his name, after which Officer Kenny checked the name against a computer screen in the police vehicle and then got out of the vehicle and told the accused there was a warrant for him (see 14 April 2015, examination‑in‑chief, ts 67 ‑ 68, 70; and cross‑examination, ts 94, sources of quotation). Officer Osborne testified he did not think that at that time he had previously known there was an outstanding warrant for the accused (14 April 2015, examination‑in‑chief, ts 68).
Officer Osborne testified that it was at that point Officer Kenny 'cautioned' the accused, in the sense of informing him he was under arrest on a warrant and would be taken to a named police station (14 April 2015, cross‑examination, ts 91 ‑ 92; ts 91 is the source of the quotation). A little later in his cross‑examination Officer Osborne testified Officer Kenny also 'cautioned' the accused in the sense of telling him he had a right to silence and anything he said could be used against him in court (cross‑examination, ts 93 ‑ 94; ts 93 is the source of the quotation).
Officer Kenny testified that after he placed the accused in the police vehicle he went back to talk with the other two officers, informing them of what the accused had said about torching a vehicle (see 14 April 2015, examination‑in‑chief, ts 53). Officer Osborne testified that he could not recall discussing what was said by the accused with other police officers (see 14 April 2015, examination‑in‑chief, ts 70). However, later in his evidence he accepted it was possible he was involved in a conversation with other police officers, and it was possible the question of the appropriateness of interviewing the accused arose (see 14 April 2015, cross‑examination, ts 95).
For her part, Officer Bell testified she could not remember if there had been a conversation with other police officers at the scene concerning the possibility of interviewing the accused (14 April 2014, cross‑examination, ts 103).
All three of Officers Kenny, Osborne and Bell testified that it was their view at that time that it would not have been appropriate to interview the accused. They all referred for that purpose to his condition as they perceived it. They explained their views in somewhat different terms, however.
There was also some relevant evidence from another source, being a 000 call the accused placed not long beforehand. A recording of the call was played and made exhibit 1 in the directions hearing.

Officer Kenny testified that the accused was 'slurring his words', 'walking very unsteadily', 'acting very erratically' and 'not walking straight', 'quite all over the shop', 'very agitated', 'as if he was in a state of almost anger' (14 April 2015, cross‑examination, ts 52). Officer Kenny's opinion was that the accused was 'under the influence of an unknown substance' (ts 52). In cross‑examination it was put to Officer Kenny that the accused did not say what Officer Kenny testified he had said about him torching his own vehicle. Officer Kenny replied that, while the accused was slurring his words he was 'quite easy to understand' (see 14 April 2015, cross‑examination, ts 59). The accused 'wasn't at a state of say someone who is severely intoxicated by alcohol and you can't make out what they were saying' (ts 59). At the same time, Officer Kenny testified it was his opinion that it would not have been fair to interview the accused. In cross‑examination Officer Kenny testified as to his reason for that view in the following exchange (ts 59):
Who made the decision not to interview Mr Heath about that statement? It was a collective decision, I would say, between all four police officers present. I obviously expressed my honest opinion that I thought it wouldn't be fair to interview him at this time due to the fact of his level of intoxication or use of a substance, which was supported by the other officers in attendance.
Sure. And would it be fair to say that you also didn't think it would be fair to interview him at that point because he may not know what he's saying because of his level of intoxication and being under the influence of some substance? It was more a fact of I think he wouldn't be able to understand that he didn't need to speak with me and didn't - wouldn't be able to understand that he was entitled to certain rights while he was in our custody and speaking with us. I think he was quiet. Like I said, he wasn't - I had an easy ability to understand what he was saying at the time so I think he knew what he was saying. However, I don't believe that it would have been fair on him to interview him because I don't adequately think he would understand his rights.
Officer Osborne, for his part, testified as to the condition of the accused as Officer Osborne perceived it, that the accused was 'fairly intoxicated', 'staggering around', and could not 'speak properly', 'slurring his words', making it difficult to understand what he was saying. The accused was able to stand up, but was 'uneasy' on his feet (see 14 April 2015, examination‑in‑chief, ts 67, source of quotations; see also cross‑examination, ts 89). Officer Osborne agreed with the proposition put to him in cross-examination that he 'certainly wouldn't have seen him fit to be interviewed', because of his 'clearly intoxicated state' (ts 95), after which there was the following exchange (ts 96):
And that because of his intoxicated state that he may not know what he is saying? Well, that would be the reason why I wouldn't interview him.
For her part, Officer Bell testified that she observed the accused as 'jittery', 'moving around constantly', 'just not focussing on the question that were being asked by the Officers' and 'just really incoherent at times' (14 April 2015, examination‑in‑chief, ts 99). He was 'unsteady on his feet', 'slurring his words' and he 'wasn't making any sense at all when the officers were asking him some questions in relation to a vehicle' (14 April 2015, examination‑in‑chief, ts 98). The accused needed no assistance to hold himself up when talking to the officers. However, based on her observation of him over two to three minutes, he 'certainly' was not in a 'fit state' to be interviewed (14 April 2015, cross‑examination, ts 103); immediately after which there was the following exchange (ts 103):
Because he didn't even know what he was saying, that's the impression you got? No.
Would you agree with that? Occasionally he would understand one or two questions but most of the time it was impossible to get an exact answer.
Exhibit 1 was an archive recording of the conversation between the accused and the police 000 operator commencing at 2.52 am on 4 June 2012, that is, about one hour before Officers Kenny and Osborne came to the accused's home address. The accused appears to be very agitated. It is not always easy to make out what he is saying. The operator has considerable difficulty interrupting him to ask him questions, as to the address of the accused's home address, the accused's name and the name of the person whose mobile telephone the accused is using. However, answers to all those questions are ultimately given. The accused can be clearly heard calling for a police presence at the accused's home address because of fire there, as well as because of shots fired there and dangerous conditions the accused indicates he faces there.

Question (1): admissibility at common law

The two bases at common law, either of which the State at first contended was sufficient for the reception into evidence of the admissions, were, respectively, the admissibility of a statement made spontaneously by an observer or participant during or immediately after an event which culminated in the charging of a criminal offence (admission as part of the res gestae); and the admissibility of a confessional statement or admission by an accused person if there is proof on the balance of probabilities that it was made voluntarily (admission as a voluntary confessional statement or admission).
At the hearing before me the State conceded that a confessional statement or admission by an accused person that was not susceptible to admission as a voluntary confessional statement or admission could not be admitted on any other basis, such as admission as part of the res gestae. I consider that concession was rightly made. See the statement as to admission as a voluntary confessional statement or admission in The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285 [46] (Martin CJ, Hall J agreeing) (emphasis added), referring to among other authorities MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512:
It is, of course, well established that in order to be admissible, a statement by an accused person that contains admissions against interest must have been made voluntarily; that is, 'made in the exercise of a free choice to speak or be silent': R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 [50] (Toohey, Gaudron and Gummow JJ). A statement will not have been made voluntarily if the will of the maker of the statement has been overborne, perhaps as a consequence of a threat or promise made by a person in authority: MacPherson v The Queen … 519 (Gibbs CJ and Wilson J); Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396 [2] (Gleeson CJ).
For statements to a like effect, see Silich [153] (Buss JA); and Wright [44].
Turning to admission as a confessional statement or admission, I note the following as to such admission from Silich [47], referring to, among other authorities, R v Williams (1992) 8 WAR 265 and R v Lee [1950] HCA 25; (1950) 82 CLR 133:
In the absence of evidence to the contrary, it is presumed that an admission against interest was made voluntarily: Hough v Ah Sam [1912] HCA 78; (1912) 15 CLR 452, 457 (Barton J); R v Williams … 271 (Rowland and Owen JJ). However, if there is evidence which casts doubt on the voluntariness of the statement, the State must prove on the balance of probabilities that the statement was made voluntarily: R v Lee … 144; MacPherson (522) (Gibbs CJ and Wilson J)
Here the only 'evidence to the contrary' as in Silich (see [50]), that of the accused's intoxication at the time of the admissions. I have previously referred to that evidence, from the three police officers, Officers Osborne, Kenny and Bell. I have also referred to what I have drawn from exhibit 1.
That evidence, it seems to me, is sufficient to require the State to discharge the burden as to voluntariness. No contrary submission was put to me.
Intoxication is relevant to the matter of voluntariness, as explained in Silich [51] ‑ [54] (part), referring to R v Ostojic (1978) 18 SASR 188 among other authorities:
In Sinclair v The King [1946] HCA 55; (1946) 73 CLR 316, Dixon J observed that mental impairment by the maker of a statement against interest did not necessarily mean that the statement was inadmissible in criminal proceedings brought against the maker of the statement, even if, as a consequence of the mental impairment, the maker of the statement was 'confusing the products of his disordered imagination or fancy with fact' at the time of making the statement (338). The statement will be admissible if the mental state of the accused did not 'disable him from observing, appreciating, recollecting and recounting real occurrences, events or experiences' (337). In the same context, Dixon J cited Commonwealth v Howe (1857) 9 Gray 110 as authority for the proposition that a confession made by an intoxicated defendant is admissible in evidence against him unless 'the degree of intoxication is so great as to deprive him of understanding what he was confessing' (336). Accordingly, a statement made against interest will be admissible if, despite mental impairment, the accused was capable of giving a true account of events.
In R v Ostojic … an admission made by an intoxicated accused was ruled to be admissible on the basis of the trial judge's conclusion that, notwithstanding his intoxication, the accused was capable of giving a detailed account of his movements and actions on the night in question. The admission of the confession into evidence was upheld on appeal. Wells J (with whom King and Hogarth JJ agreed) observed:
'I could imagine one type of drunken person who is far gone in liquor and who, in the circumstances, is so plainly unaware of his surroundings, of the identity of his interrogator, and of the drift of the questions put, that he is incapable of choosing whether to speak or not, and is just gabbling. It would not be a wholly unacceptable proposition that what he said was not voluntary.
…'
It is a question of fact and degree (197).
Similarly, in R v Williams, the majority upheld a ruling by the trial judge to the effect that a confession was made voluntarily by the accused notwithstanding his intoxication (277), although the confession was ultimately excluded on the ground of unfairness.
Accordingly, in the present case, the question of voluntariness is to be determined by asking whether, on the balance of probabilities, the appellant was so intoxicated at the time of his interview by police that he was incapable of choosing whether or not to participate in the interview, or to understand the questions being asked and provide reasonable responses to those questions.
The State put to me that, notwithstanding the evidence referred to, they had discharged the burden of proof with respect to the voluntariness of the admissions. For this purpose, the State laid emphasis on the testimony of Officer Kenny that it would not have been fair to interview the accused because he would not be able to understand he did not need to speak with the officer and otherwise would not be able to understand his rights, more than that the accused did not understand what he was saying. The State also relied on Officer Kenny's evidence that at about the time he arrested the accused on the outstanding warrant, the accused had said he had something outstanding.
The defence for its part relied on the evidence of Officer Osborne that the reason he would not have interviewed the accused was because he might not have known what he was saying. The defence also relied on the evidence in exhibit 1 of the accused referring to shots fired at the accused's home address. It appeared to be common ground that the only evidence of any basis for such an account was incidents outside the residence, not outside the accused's home address.
Counsel for the State invited me to put aside the evidence of Officer Osborne, or give it little weight, on the basis that the officer indicated, at many points in his evidence (although not in this particular respect), difficulties with his recollection greater than any Officer Kenny indicated with his. Indeed, Officer Kenny testified in a manner suggesting his recollection was very good. Counsel for the State also invited me to approach the evidence of Officer Osborne in the particular respect taking account of the fact he was adopting a proposition put to him in cross‑examination.
Further, counsel for the State invited me to take account of the fact that there was at least some factual support for the matter of shots referred to by the accused in exhibit 1, in a witness statement in the prosecution brief from the mother of a person with whom she indicates the accused had had a fight earlier in the night in question (see prosecution brief page 6, [29] ‑ [30]).
However, it seems to me I am not in a position where I should simply prefer Officer Kenny's evidence to that of Officer Osborne. I am of that view because of my assessment of the difficulty I have with another aspect of Officer Kenny's evidence, to do with the purpose for the two Officers' visit to the accused's home address on the night in question. I reach the difficulty below in relation to question (3).
I am of that view also because of my assessment of exhibit 1. I consider that exhibit 1 indicates the accused was, in the words of Wells J in R v Ostojic (197), quoted in Silich [52], 'incapable of choosing whether to speak or not and [was] just gabbling'.
I accept there was no evidence the accused consumed additional intoxicating substances after the call the subject of exhibit 1 was made. But equally, I consider I have no evidence or other basis to conclude that the time between the call and the admissions was such that I should consider indications of capacity of the accused in the call were of little weight in relation to the accused's capacity at the later time.
I further accept that the evidence, particularly in exhibit 1, was that the accused was not so intoxicated as to be plainly unaware of his surroundings, of the identity of persons with whom he was dealing and of the drift of any of the questions put to him. I have already referred to the accused having ultimately responded to certain questions the operator in the call recorded in exhibit 1 put to him. I have also referred to the evidence of Officer Bell in relation to questions by Officers Osborne and Kenny of the accused and his responses to them. Compare the state of the accused referred to in R v Ostojic (197).
However, I am of the view that exhibit 1 indicates the accused overall was there speaking in an uncontrolled way, to the point of 'just gabbling': R v Ostojic (197).
I also note in the present respect, the evidence of Officer Bell in respect of the accused '[o]ccasionally he would understand one or two questions' (14 April 2015, cross‑examination, ts 103, emphasis added).
For the reasons in the previous six paragraphs, I conclude that the State has not discharged its burden in relation to the matter of voluntariness.
However, even arriving at a different conclusion I have concluded it would be unfair to admit the admissions, which is the subject of question (2).

Question (2): unfairness

A sufficient general statement of the relevant principles is in my view to be taken from Wright [115] ‑ [116] (Blaxell J) as follows:
Once the prosecution proves that a confession was made voluntarily, it is prima facie admissible. The onus is then on the accused to establish on the balance of probabilities a 'substantial reason' why the confession should be excluded in the exercise of the court's discretion (Lee (152 ‑ 154)). There are three possible bases for a discretionary exclusion of a voluntary confession. These are that it is unfair to the accused to admit the confession, that public policy considerations make admission of the evidence unacceptable, or that the prejudicial effect of the statement outweighs its probative value (R v Swaffield (1998) 192 CLR 159 [51]). The focus of the unfairness discretion is on the rights of the accused whereas the public policy discretion is concerned with matters of public interest. The third discretion focuses on the probative value of the evidence and guards against a miscarriage of justice (Swaffield [52]). Depending upon the particular circumstances, these various considerations may well overlap (Swaffield [74]).
The unfairness discretion is not concerned with whether the police acted unfairly, but with whether it would be unfair to the accused to use his confession against him (Lee (154); Van der Meer v The Queen [1988] HCA 56; (1988) 82 ALR 10, 26). The prime concern of the unfairness discretion is the potential unreliability of the confession, but it is not the only concern. There may be unfairness to the accused because the confession might not have been made at all, or might have been made in a different form, if the interrogation had been conducted properly (Van der Meer (20); Swaffield [71])
For the defence, the sole basis of exclusion is the unfairness ground.
For that purpose the defence directed me to the evidence of the intoxication of the accused referred to in the previous section of these reasons, and to the evidence in exhibit 1.
I note that the fact that the same matter, intoxication, is relied upon in relation to fairness where it was not sufficient in relation to voluntariness does not prevent the fairness ground being made out: see R v Williams (276 ‑ 277) (Rowland & Owen JJ) and the reference to that authority in Silich [53]. This may especially be so where it is found an accused was not in a fit state to understand questions and answer intelligently, that is to say, to undergo a police interview about the subject matter of his admissions: see R v Williams (277), referring to R v Ostojic. I note that R v Williams is also referred to in Silich [53].
As to that point, counsel for the State put to me that the capacity the accused indicates in exhibit 1 he had was, as I understood the submission, to understand questions and respond to them. I further understood counsel for the State again to direct my attention to the terms of Officer Kenny's evidence as to why, in his opinion, it would have been unfair to interview the accused.
However, I have previously described my view of exhibit 1, that the accused was then speaking in an uncontrolled way, to the point of just gabbling.
Further, it seems to me that the evidence of all three police Officers, including that of Officer Kenny, as to the conclusion that it would have been unfair to interview the accused, tends to indicate a substantial reason to doubt that the accused was in a state to exercise his right to speak or remain silent when he made the admissions.
That right is of course one of the 'fundamental rights retained by an accused': R v Williams (277), referring to Petty v The Queen [1991] HCA 34; (1991) 173 CLR 95. To exercise that right, the accused would at the least have had to understand he had a right to remain silent, which was an understanding that the accused lacked on Officer Kenny's evidence, a lack to which, in my view, Officer Osborne's and Officer Bell's evidence also points.
For the reasons in the previous three paragraphs, I conclude that the defence has discharged its burden by reference to the matter of unfairness.
I further conclude that, for those reasons, I should exercise the discretion to exclude the evidence of the admissions.
On that conclusion, I consider it is not necessary for me to answer question (3) or question (4). However, in deference to the arguments put to me, and because certain matters in relation to question (3), having to do with the purpose of the despatch of Officers Kenny and Osborne to the accused's home address, is of relevance to my answer to question (1), I will address each.

Question (3): the inadmissibility rule

It is not in contest that the admissions are each an 'admission' within Criminal Investigation Act s 118(1).
Nor is it in contest that the burden of proof in relation to Criminal Investigation Act s 118 (4) was on the defence, to show that the admissions were not 'an admission by a person made before there were reasonable grounds to suspect that he or she had committed the offence'.
No authority on the application of that provision was cited to me, and I could not find one.
For the purposes of the discharge of its burden under that provision, the defence relied on three matters.
One matter was what was accepted, for the purposes of the hearing, as to the time at which FESA called the police to notify them of the fire at the accused's home address. That time was 3.28 am, which may be compared with the time, 3.33 am, at which Officers Kenny and Osborne were dispatched to the accused's home address.
The defence also relied on the fact the accused was cautioned at the scene, as has been seen, on Officer Kenny's evidence by Officer Osborne, and on Officer Osborne's evidence by Officer Kenny, being a caution in the sense of informing the accused of his right to silence and that anything he said could be used against him.
Finally, the defence relied on the evidence of Officer Bell that she had heard one of the officers ask the accused who owned an orange vehicle at the rear of the premises.
As to the first, I consider the matter referred to by the defence makes it difficult not to accept that the purpose or at least the principal purpose, of dispatch of the two Officers was, contrary to Officer Kenny's evidence, and in accordance with that of Officer Osborne, to assist in relation to the fire at the accused's home address. I note Officer Kenny's evidence that there was no discussion in relation to a fire in the police vehicle going to the accused's home address (14 April 2015, cross‑examination, ts 55). However, I also note the evidence of Officer Osborne that in that journey '[n]o doubt we would have had general chat, but I can't remember exactly what we would have said' (14 April 2015, examination‑in‑chief, ts 66).
As to the second matter relied upon by the defence, it is of course the duty of the officer to give a caution in the sense described, which arises when there are reasonable grounds for an investigating police officer to suspect that a person has committed an offence: see Bentink v Nguyen [21] (Barker J), citing authorities.
Further, both Officer Kenny and Officer Osborne testified it would not be required or normal procedure to provide a caution in that sense in relation to an arrest on an outstanding warrant (see Officer Kenny 14 April 2015, cross‑examination, ts 57 (such arrest did not 'require' such a caution); Officer Osborne 14 April 2015, cross‑examination, ts 95 (not 'normal procedure')).
I further note the evidence of Officer Kenny, albeit contrary to that of Officer Osborne, that the admissions were made after the caution.
In all of those circumstances, I consider it strongly arguable, without finally deciding, that the defence has discharged its burden under Criminal Investigation Act s 118(4). However, I do not consider I have to reach a final conclusion on the matter because of my conclusions on question (1) and question (2).

Question (4): the exceptions to the inadmissibility rule

There are two subsidiary questions raised in this regard. They correspond to Criminal Investigation Act s 118(3)(b)(i) ('reasonable excuse') and (ii) (s 155), respectively.
As to s 118(3)(b)(i), 'reasonable excuse', as I have previously indicated, the only application of Criminal Investigation Act s 118(1) 'reasonable excuse' for which the State contends here is the specific in (a). This is that 'the admission was made when it was not practicable to make an audiovisual recording of it'.
Neither the State nor defence referred me to any authority on this provision, or its predecessor, former Criminal Code (WA) (Code) s 570D(4)(a), which is in similar, if not identical, terms.
Former Code s 570D read in material part as follows:
570D.Accused's admissions in serious cases inadmissible unless videotaped
(1)In this section -
'admission' means an admission made by a suspect to a member of the Police Force or an Officer of the Corruption and Crime Commission, whether the admission is by spoken words or by acts or otherwise;
…
(2)On the trial of an accused person for a serious offence, evidence of any admission by the accused person shall not be admissible unless -
(a)the evidence is a videotape on which is a recording of the admission; or
(b)the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for there not being a recording on videotape of the admission;
(c)the court is satisfied that there are exceptional circumstances which, in the interests of justice, justify the admission of the evidence.
…
(4)For the purposes of subsection (2), 'reasonable excuse' includes the following -
(a)The admission was made when it was not practicable to videotape it.
(b)Equipment to videotape the interview could not be obtained while it was reasonable to detain the accused person.
(c)The accused person did not consent to the interview being videotaped.
(d)The equipment used to videotape the interview malfunctioned.
However, I note there are at least two authorities from which guidance may be taken.
One is R v Murcott; R v Johnston [2005] WASC 30; (2005) 31 WAR 198 [47] ‑ [49] (Owen J), on the former Code provision. In Murcott, his Honour was dealing with a case where police officers had visited a suspect in prison whom they had previously interviewed in relation to the offence. No videotaping facilities were available at the prison. His Honour concluded that evidence both of the availability of videotaping facilities at a proximate police station and of the capacity for the police officers to have taken a hand held camera with them, 'especially' where they appreciated there was 'a possibility, even a likelihood', the suspect would speak to them, disposed of s 570D(4)(a) ([49]).
However, rather closer to the present matter is Wright [56] ‑ [57], concerning Criminal Investigation Act s 118(1) 'reasonable excuse' (a), as follows:
The trial judge held that the oral statement was made by the appellant when it was not practicable to make an audiovisual recording of it and thus there was a reasonable excuse for its absence. He accepted the evidence of Detective Leonhardt which was to the effect that there was no intention to speak to or interview the appellant but rather to take him into custody and that the main objective of police upon entering the house was to secure the premises and secure the people inside the premises in which case it was not practicable to run into the premises with video equipment running.
In this case the admission was made at a private home where the police secured entry for the purpose of locating and arresting the appellant for a very serious offence, with the possibility that the appellant may seek to avoid or resist arrest and with no intention of questioning the appellant. Those being the surrounding circumstances leading up to the unexpected admission, the trial judge was correct to conclude that it was not practicable to make an audiovisual recording of it.
Here of course there is evidence, from Officer Bell, of questions asked of the accused by Officers Kenny and Osborne. However, it seems to me that those questions were of a kind that would tend to have emerged out of the admissions. The evidence before me tends to satisfy me that neither of the two officers went to the accused's home address with the possibility in mind of speaking to or interviewing the accused about an offence that may have been committed there.
I consider that the presence of the factors of spontaneity and timing in relation to the admissions that emerge on all of the evidence before me, and which I took to be relied upon by the State in the present context, tend to make out Criminal Investigation Act s 118(1) 'reasonable excuse' (a).
However, I do not consider I have to reach a final conclusion on the matter because of my conclusions on question (1) and question (2) above.
As to Criminal Investigation Act s 155, I consider that the relevant authorities are Wright [11] ‑ [12], [41] (McLure P, Buss JA agreeing), [175] ‑ [188], [206] ‑ [211] (Blaxell J); Floyd v The State of Western Australia [2013] WASCA 33 [41] ‑ [47] (McLure P, Newnes & Mazza JJA agreeing); and Wells v The State of Western Australia [2013] WASCA 124 [13] ‑ [16], [28] ‑ [31] (McLure P, Newnes & Mazza JJA agreeing).
From those authorities I extract the following principles as to the approach I should adopt in this case to Criminal Investigations Act s 155(2) and (3):
1.The discretion in s 155(2) is to admit otherwise inadmissible evidence, and is to be exercised by reference to the considerations in s 155(3), which are both mandatory and exhaustive: Wright [12].
2.The burden of persuading the court to exercise the discretion under s 155(2) rests on the prosecution; and to the extent its discharge rests on disputed questions of fact the prosecution must prove those on the balance of probabilities: Wright [188](d) (Blaxell J).
3.In relation to s 155(3)(a), favouring the admission of the evidence of the admissions is that it is not objected that the evidence is unreliable; however, matters of objection might include an objection based on common law grounds, such as unfairness to the accused from admission of the evidence: Wells [31]; Wright [183], [207].
4.In relation to s 155(3)(b), favouring the admission of the evidence of the admissions is the greater seriousness of the offence; and in assessing the seriousness of the offence account should be taken at least of the maximum penalty and where on the scale of seriousness the offending in the particular case may be placed: Wright [178] read with [117], [179] and [208]; and Floyd [43].
5.In relation to s 155(3)(c) and (d), while the inadmissibility rule might be said not strictly to describe a 'contravention', it is treated as such for the purposes of (c) and (d): see Wright [208].
6.In relation to s 155(3)(c) and (d), favouring the non‑admission of the evidence of the admissions is the greater seriousness of the contravention; and in assessing such seriousness, account should be taken of the matters in (d), with much greater weight to be given to the contravention if it was intentional or reckless than if it arose from an honest and reasonable mistake of fact; and in cases of a contravention not fitting within the categories in (d), such as carelessness, the court will assess its seriousness and give the factor such weight as it thinks fit: Wright [180]; and Floyd [44].
7.In relation to s 155(3)(e), the greater the probative value of the evidence the greater the weight to be given to this factor as one favouring the admission of the evidence of the admissions; the probative value of the evidence of an admission will depend not only on the evidence's content and whether the admission can readily be established by other admissible evidence, but also on the evidence's reliability and unequivocalness; but by reason of s 155(4) the weight to be given to probative value can never be enough on its own to justify admission. See Wright [181], [209]; Floyd [45].
For present purposes, the defence placed particular reliance on s 155(3)(f), by reference to the matters going to unfairness on which the defence relied as I have previously indicated.
I turn to apply these principles.
As to s 155(3)(a), I understood it to be the contention of the defence that the condition of the accused at the time of the admissions made them unreliable. I consider that contention has a reasonable basis.
I should note, as I have indicated, that the defence referred their objection on the ground of unfairness not to s 155(3)(a) but to s 155(3)(f). I see no difference made by that allocation.
As to s 155(3)(b), the offending in relation to the charge of arson was undoubtedly very serious, by reference to the maximum penalty (see Floyd [43]), although not as serious as that in Wright (sexual penetration and murder). At same time, I am of the view that the offending here was not at the highest level of seriousness of offending of its type, notwithstanding the attendance of FESA personnel and their call to police. That is because of the nature of the property destroyed.
As to s 155(3)(c) and (d), the State put to me the contravention of s 118(3) was not serious and was not intentional or reckless, given the factors of spontaneity and timing which I took to be relied upon by the State in relation to s 118(1) 'reasonable excuse' (a). I agree. I should note that I have assessed the seriousness of the contravention as I have described it having regard also to the purpose of Criminal Investigations Act s 118(3) in Floyd [39] referring to Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138 [57] (Gummow, Heydon & Crennan JJ) and Wright [52] ‑ [53], [131].
As to s 155(3)(e), it was not in serious contest the evidence had significant probative value in relation to the offence charged of arson. However, that value is qualified to the extent of the matter of the reliability of the admissions to which I have previously referred.
As to s 155(3)(f), I have already indicated my view as to the matters unfairness on which the defence relies.
In my view, on balance, taking account of all material considerations in s 155(3), weighing all the relevant factors, the desirability of admitting the evidence of the admissions that the prosecution seeks permission to lead tends not to outweigh the undesirability of admitting that evidence.
However, I do not consider I have to reach a final conclusion on the present matter because of my conclusions on question (1) and question (2).

Conclusions

I have determined that as to question (1), whether the unrecorded admissions are admissible at common law, they are not, as the State has not discharged its burden as to the matter of voluntariness.
I have also determined that, in any event, as to question (2), whether I should rule the admissions inadmissible on the ground of unfairness, I should do so.
Those conclusions make it unnecessary for me to reach a final conclusion as to question (3), whether the inadmissibility rule in Criminal Investigation Act 2006 (WA) s 118(3) applies in this case.
Those conclusions also make it unnecessary for me to reach a final conclusion or conclusions as to question (4), whether one or other of the two classes of exception to the inadmissibility rule applies in this case.
Thus, I would not grant the prosecution's application.