The State of Western Australia v Hedgeland
[2011] WASC 302
•1 NOVEMBER 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- HEDGELAND [2011] WASC 302
CORAM: HALL J
HEARD: 26 OCTOBER 2011
DELIVERED : 1 NOVEMBER 2011
FILE NO/S: INS 77 of 2011
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
ANDREI PETER HEDGELAND
Defence
Catchwords:
Criminal law - Evidence - Admissibility of parts of police interview - Fairness of questioning - Turns on own facts
Legislation:
Nil
Result:
Rulings made
Category: B
Representation:
Counsel:
Prosecution : Ms A L Forrester
Defence: Ms L B Black
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Defence: Kate King Legal Pty Ltd
Case(s) referred to in judgment(s):
Nil
HALL J: The defence objects to certain passages in the record of interview between the accused and the police of 9 April 2010.
The passages have been marked in red on a copy of the transcript of the interview provided by the prosecution. Argument as to the admissibility occurred at a directions hearing held on 26 October 2011. As the trial is listed to commence on Monday, 7 November 2011, I will state my reasons briefly.
Counsel for the accused urged me to watch the video of the interview in assessing the objections. This was in order for me to see the demeanour and hear the tone of voice used by the interviewing police officers and the accused. I have now taken the opportunity to watch the video of 9 April 2010.
I will identify the passages by reference to the transcript pages.
Transcript 1
Page 8
This passage is objected to on the basis that the question is long and contains too many propositions such that it is not clear what the accused is agreeing to.
The prosecution says that the question contains reference to the contents of text messages sent by the accused to the female deceased. In essence, it is said that the accused was being confronted with evidence that was inconsistent with what he had previously told the police. The fact that these matters are put to the accused is said to be relevant in understanding his subsequent change of position.
I accept that this passage is relevant for the reasons given by the prosecution. It is clear that the prosecution case is that the accused has changed his story of what occurred on a relevant day. It is also apparent that the prosecution will allege that the accused has made these changes to accommodate other evidence as it became available. In those circumstances, this passage is relevant to place subsequent answers into context. There appears to be one exception to this, that is the sentence commencing with the words 'because Stefan …'. The prosecution agrees that that sentence is not a quote from a text message and also agrees that it should therefore be excluded.
Accordingly, I rule that this passage can be led in evidence (other than for the sentence referred to earlier).
Page 9
The question objected to here is said to be an unnecessary repetition of the interviewer's belief that the accused was not telling the truth.
The prosecution submits that the question is relevant because it shows the accused to be evasive in respect of matters that he later conceded. Any such evasion is not apparent without the context of the question.
I accept that the interviewing officer adopts an insistent tone but that, in itself, does not lead to a conclusion of unfairness. It is the case that the accused later concedes the issue raised in the question. His answer at this point is non‑responsive. I accept that the course of the interview and the timing of concessions made by the accused are relevant. Accordingly, I rule that this passage is admissible.
Pages 10 and 12
These passages are said to be further examples of unnecessarily vigorous questioning by the interviewer and are prejudicial as they are statements of the interviewer's opinion.
I accept that the interviewer forcefully expresses the view that the accused is lying. There is, of course, no evidential value in such views in themselves. The jury will determine for themselves whether the accused is telling the truth and whether, if not, his failure to do so is deliberate and, if so, why. The jury will be directed that the views of the interviewer are not relevant. However, in this case, the accused did, in fact, go on to make concessions and, in that context, it is relevant to know why those concessions might have been made. The course and tone of previous questioning are relevant in this regard. Accordingly, I rule that these passages are admissible.
Pages 14 and 16
Agreement was reached between the parties as to these passages.
Page 28
This passage involves the interviewer putting to the accused a scenario as to what had occurred. It is said that the interviewer is over‑bearing and dominating and that the responses of the accused that appear to be agreement should be understood as simple acknowledgement that the interviewer is speaking, rather than being any agreement with the content.
The prosecution submits that the interviewer is presenting a summary of what has been previously put and agreed to. It is suggested that it is clear that the accused is being given an opportunity to dispute the summary. It is said that it is plain that he takes the opportunity to agree with the summary. There is one exception and that is that the sentence commencing with the words 'She didn't trust you …' is not something that the accused had previously admitted. On that basis, the prosecution concedes that that sentence should be excluded.
Having observed the video, I am unable to accept that all the accused is doing is acknowledging that the interviewer is speaking. It is open to conclude that the accused is in fact agreeing with the summary that is put to him. Even if there are earlier admissions to the same effect, confirmation would nonetheless be relevant in ensuring that there has been no misunderstanding. Accordingly, I am of the view that this passage is admissible (apart from the agreed sentence).
Page 50
Agreement was reached between the parties as to this passage.
Page 51
This passage involves the interviewer suggesting that the accused has given conflicting accounts of what he did when he went to the house of the female deceased. The objection is that the accused makes no response and thus the question has no evidential value.
The prosecution submits that it is the fact that the accused makes no response that gives this evidence probative value. It is said that the jury can draw conclusions from the fact that the accused does not answer but sits thinking.
I have viewed the relevant section of the interview. In my view, no inference is properly available from the accused's silence. Furthermore, the passage is followed immediately by further suggestions from the interviewer as to what occurred which have been agreed to be excluded. The passage in question appears to form part of a larger section involving the interviewer putting a theory to the accused. To present only part of that section and suggest that the accused is hesitating because he cannot think of a response would have the potential to mislead. In those circumstances, I rule that this passage should be excluded.
Transcript 2
Page 8
This passage involves one of the interviewers presenting a summary of what has previously been said to the accused. The defence submits that the accused does not agree to every proposition that is put and that therefore there is no clarity as to what the accused is or is not agreeing to.
Having viewed this passage, it is clear that it involves the police officers seeking confirmation that what they have understood the accused to say is correct. The female police officer who has, from the commencement of the interview, been taking notes gives the summary. She commences by saying that she wishes to 'go over' everything that the accused has told them. In doing so, she reads from her notes. As she does so, the accused nods at various times and, on occasions, articulates his agreement. At the conclusion of the summary, he adds one aspect. In my view, it is clear that the police officers are seeking confirmation that what they have understood the accused to say is correct. His responses are consistent with that. I do not accept that this passage involves any unfairness or lack of clarity. Accordingly, I rule that it is admissible.
Pages 15 and 16
Agreement was reached between the parties as to these passages.
Pages 21 and 22
This passage forms the end of a section of the interview in which the accused has sought an opportunity to clarify a number of matters. The interview concludes shortly thereafter. After saying that he has clarified all of the matters that he wishes to, he is asked whether he wishes to provide any explanation in respect of the burning of a car. The accused states that he does not want to answer that question until after he seeks legal advice. The defence concedes that the portion up to that answer can be admitted. However, thereafter, the police officer presses the question and seeks to draw a distinction between matters relating to the alleged murders and the burning of the motor vehicle. The accused maintains his position that he does not wish to answer any questions in relation to the car.
The prosecution submits that there is evidence that the accused admitted to lighting the car fire. It is suggested that the challenged passage is relevant because it shows that the accused did not take the opportunity to explain why he would have lit the car fire but did not murder the two deceased.
I have viewed the passage and, in my view, there is no probative value in the questions that follow after the accused has said that he does not wish to answer questions regarding the car fire. It is clear from that that he has been afforded the opportunity of providing an explanation and nothing can properly be inferred from his maintaining his right to silence in respect of that subject in response to further questions. Accordingly, I rule that the passage commencing on page 21 with the words 'Okay. But do you understand' and finishing with the words 'ramifications of what my answers are' on page 22 is excluded.
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