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Criminal Code (WA), s 570D (repealed)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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The State of Western Australia v Heath

Details

AGLC: The State of Western Australia v Heath [2015] WASC 172
Case: [2015] WASC 172
Decision Date: 18 MAY 2015

CaseChat Overview and Summary

The State of Western Australia has brought charges against Heath in relation to alleged criminal offences committed on 4 June 2012. Heath is alleged to have wilfully and unlawfully damaged two vehicles, a Mitsubishi Magna and a Holden Caprice, and to have caused bodily harm to another individual. Additionally, Heath stands accused of wilfully and unlawfully destroying a Toyota HiLux by fire. The court must determine the admissibility of evidence, specifically admissions made to a police officer that were not recorded audiovisually, under the Criminal Investigations Act 2006 (WA).

The primary legal issues before the court revolve around the admissibility of the accused's admissions to the police, which were not recorded audiovisually. The court must decide whether the burden of proof as to the voluntariness of these admissions has been discharged and whether their exclusion on the ground of unfairness is warranted. The court must also consider the provisions of sections 118 and 155 of the Criminal Investigations Act 2006 (WA), which outline the criteria for the admissibility of inadmissible evidence.

In its reasoning, the court noted that the State of Western Australia accepted that the admissions in question could only be admissible under section 118(1)(a) of the Criminal Investigations Act 2006 (WA) if a reasonable excuse existed. The court examined the circumstances under which the admissions were made and found that there was insufficient evidence to establish that a reasonable excuse existed for their admissibility. Additionally, the court found that the probative value of the admissions did not outweigh the unfairness of their admission. Therefore, the court concluded that the admissions were inadmissible.

The court ordered that the admissions made by Heath to the police officer be excluded from evidence in the trial. The court emphasised the importance of ensuring that the rights of the accused are protected, particularly in cases where admissions are not recorded audiovisually. The court also highlighted the need for police officers to follow proper procedures when obtaining admissions from suspects to ensure that any evidence obtained is admissible and fair.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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. 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Actions

Citations

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

Cases Citing This Decision

No citing cases yet.

Cases Cited

R v Williams [2018] SASCFC 14
Citation 1 (Para 3)

…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…
Wells v The State of Western Australia [2013] WASCA 124
Citation 2 (Para 11)

…he 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).…
Floyd v The State of Western Australia [2013] WASCA 33
Citation 3 (Para 11)

…ies 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…
The State of Western Australia v Silich [2011] WASCA 135
Citation 4 (Para 2)

…ion 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; (19…
Wright v The State of Western Australia [2010] WASCA 199
Citation 5 (Para 3)

…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'.…
Carr v Western Australia [2007] HCA 47
Citation 6 (Para 18)

…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].…
Tofilau v The Queen [2007] HCA 39
Citation 7 (Para 2)

…ps 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].…
R v Murcott; R v Johnston [2005] WASC 30
Citation 8 (Para 6)

…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 we…
Bentink v Nguyen [2004] WASCA 211
Citation 9 (Para 8)

…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).…
Macpherson v The Queen [2002] WASCA 287
Citation 10 (Para 2)

…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…
R v Swaffield [1998] HCA 1
Citation 11 (Para 2)

…ns 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 h…
Petty v the Queen [1991] HCA 34
Citation 12 (Para 8)

…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 a…
Van Der Meer v The Queen [1988] HCA 56
Citation 13 (Para 1)

…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.…
R v Lee [1950] HCA 25
Citation 14 (Para 3)

…mission, 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 Sa…
Sinclair v The King [1946] HCA 55
Citation 15 (Para 6)

…luntariness, 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 wa…
Hough v Ah Sam [1912] HCA 78
Citation 16 (Para 3)

…(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…

Legislation Cited

Criminal Investigation Act 2006 (WA) 118(3)
1 mention (from Para 4)
Criminal Procedure Act 2004 (WA) 98
1 mention (from Para 1)