The State of Western Australia v Heijne [No 2]
[2009] WASC 408
•23 APRIL 2009
THE STATE OF WESTERN AUSTRALIA -v- HEIJNE [No 2] [2009] WASC 408
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2009] WASC 408 | |
| Case No: | INS:17/2008 | 17, 20, 22 & 23 APRIL 2009 | |
| Coram: | McKECHNIE J | 23/04/09 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Confession excluded | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA GERARDUS GERRIT HEIJNE |
Catchwords: | Criminal law and procedure Confessions and admissions Whether voluntary Whether unfair to admit |
Legislation: | Criminal Investigation Act 2006 (WA), s 137, s 138, s 139 |
Case References: | Arthurs v State of Western Australia [2007] WASC 209 Beck (1989) 43 A Crim R 135 Mackrell v State of Western Australia [2008] WASCA 228; (2008) 37 WAR 414 Middleton v The Queen (1998) 19 WAR 179 Mule v The State [2005] HCA 48; (2005) 221 ALR 85 Norton v The Queen (No 2) [2001] WASCA 207; (2001) 24 WAR 488 Petty & Maiden v The Queen (1991) 173 CLR 95 R v Ireland (1970) 126 CLR 321 R v Lee (1950) 82 CLR 133 R v Stafford (1976) 13 SASR 392 Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
GERARDUS GERRIT HEIJNE
Accused
Catchwords:
Criminal law and procedure - Confessions and admissions - Whether voluntary - Whether unfair to admit
Legislation:
Criminal Investigation Act 2006 (WA), s 137, s 138, s 139
Result:
Confession excluded
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Mr B Fiannaca SC & Ms K C Cook
Accused : Mr R W Richardson
Solicitors:
Applicant : Director of Public Prosecutions (WA)
Accused : O'Connor Lawyers
Case(s) referred to in judgment(s):
Arthurs v State of Western Australia [2007] WASC 209
Beck (1989) 43 A Crim R 135
Mackrell v State of Western Australia [2008] WASCA 228; (2008) 37 WAR 414
Middleton v The Queen (1998) 19 WAR 179
Mule v The State [2005] HCA 48; (2005) 221 ALR 85
Norton v The Queen (No 2) [2001] WASCA 207; (2001) 24 WAR 488
Petty & Maiden v The Queen (1991) 173 CLR 95
R v Ireland (1970) 126 CLR 321
R v Lee (1950) 82 CLR 133
R v Stafford (1976) 13 SASR 392
Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396
(Page 3)
- McKECHNIE J:
(This judgment was delivered extemporaneously on 23 April 2009 and has been edited from the transcript).
Introduction
1 There is pending in this court an indictment alleging that on or about 3 January 2008 at East Perth, Gerardus Gerrit Heijne (the accused) wilfully murdered Frank Cianciosi. The trial is set to commence on 11 May 2009.
2 The accused makes application pre-trial for an order that his video record of interview with the police officers which commenced about 5.30 am on 5 January 2008 be ruled inadmissible on the following grounds:
(1) that it was involuntary;
(2) by reason of public policy discretion;
(3) on the grounds of unfairness;
(4) further, and alternatively, by reason of the failure of police officers to comply with their obligations under the Criminal Investigation Act 2006 (WA).
3 Evidence proceeded over nearly two days with a further half-day for submissions.
Background to the application
4 The first police became aware of a possible offence was when officers of the Major Crime Squad were telephoned by a solicitor, Mr Luka Margaretic (Margaretic), shortly before lunchtime on Friday, 4 January 2008. They were told that there was a male person at his office and there may be a body in an apartment in East Perth.
5 A number of officers attended the offices of Margaretic and waited while other officers went to the apartment. On confirmation that there was indeed a body inside the apartment, police officers spoke with Margaretic and were introduced to the accused. Margaretic said he had explained his rights to the accused. Detective Sergeant Rowson (Rowson) advised the accused that he was under arrest on suspicion of murder and that he was to accompany him to the offices of the Major Crime Squad at Curtin House for interview.
(Page 4)
6 The accused was interviewed at 3 pm by Rowson and Detective Senior Constable, as he then was, Marsh (Marsh). The interview was short. The accused exercised his right to silence, although he did answer some questions of a background nature. The accused remained in police custody in the offices of the Major Crime Squad in an interview room until 2.26 am when his property was given back to him and he was released onto the street at 2.36 am, a request for a lift back to his business having been declined.
7 During his period in the interview room, various forensic procedures were carried out. Late in the evening the accused was observed to be asleep on the floor of the interview room. He was given a meal around 10 pm.
8 While the accused was in police custody, other investigations were proceeding apace. Jason Mitchell (Mitchell), who had been at Margaretic's office when the police arrived, was interviewed by Detective Bragg (Bragg). That interview was reduced to writing and signed at 21.25 hours on the evening of 4 January 2008. Mr X was also interviewed.
9 Shortly after the accused was released from custody, the investigating officers were given information by Detective Ayling (Ayling) about admissions said to have been made by the accused to Mr X. This caused officers to disperse to locate the accused. Bragg, travelling alone, located the accused at his work premises and brought him back to Curtin House. The accused was placed in an interview room again about 3.20 am. Mr X's statement indicates that it was signed at 5.24 hours on 5 January 2008. The challenged record of interview commenced at 5.35 am and concluded nearly an hour later at 6.25 am.
10 During the course of that interview, the accused consistently declined to comment on the circumstances surrounding the death of the deceased but did answer questions relating to Mr X and his statement, together with other matters. The prosecution asserts that the statements the accused made were statements against interest and therefore admissible.
Was the interview voluntary?
11 The parties are in broad agreement as to the legal principles which govern this aspect of the application. Indeed, those principles are very well settled. They found recent expression in Arthurs v State of Western Australia [2007] WASC 209. Voluntariness was explored in detail in
(Page 5)
- Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396. The fundamental principle is that set out in R v Lee (1950) 82 CLR 133:
An accused must speak in the knowledge of a free choice to speak or remain silent in order for any admission to be classified as voluntary (144).
13 Counsel for the accused raised a number of matters which might impact on the voluntariness of the confession, but the matters raised are not the subject of evidence. The evidence I do have in the form of video records of interview in relation to the accused's demeanour is at odds with the impression sought to be portrayed of a man giving in to persistent importuning.
14 I take account also of the volunteered statement in answer to a standard question at the conclusion of the interview, 'You guys have been great', and further, 'We haven't threatened you in any way?' 'Not at all'. I find the accused was well aware of his right to silence, exercised it when he considered it appropriate to do so and answered the questions, particularly in relation to Mr X, when he felt it appropriate to do so. I find on the balance of probabilities that the challenged interview was conducted voluntarily.
The first arrest - was there a reasonable suspicion?
15 The accused challenges the first arrest on the basis that it was unlawful. A police officer has the power to arrest a person for a serious offence if the officer reasonably suspects that the person has committed the offence. 'Reasonably suspects' is a defined term; Criminal Investigation Act, s 4.
(Page 6)
16 Rowson had limited information when he attended. Detective Correia (Correia) conveyed the essence of the following conversation:
I want to advise you that I have a person in my office who has told me that his partner is dead in an apartment in East Perth.
Luka provided the following details over the phone. Persons in the office are Gerrit Heijne, date of birth 4/12/1963, and Jason Mitchell. Person dead believed to be Gerrit's business partner, Frank Cianciosi, date of birth 8/8/1954. Frank is at apartment 98, 76 Terrace Road, East Perth. (ts 76).
17 He had information that the officers went to the apartment, located a person who was dead, secured the premises and arranged for the attendance of forensic officers. Rowson was not sure at that stage whether the apartment was generally occupied by both the deceased and the accused. Nevertheless, in my opinion Rowson had a reasonable suspicion for suspecting that an offence had been committed by the accused. The fact that the accused knew of the location of the body of his business partner and had gone to lawyers instructing them to call police would excite a reasonable person to a suspicion that some offence may have occurred in which the accused was involved.
18 In any event, the status of the accused during the first period of detention until he was released does not bear on his status following re-apprehension. Of course his experience during the period of detention is relevant to the issue of both voluntariness and unfairness with which I am yet to deal. An unlawful detention may become lawful: Norton v The Queen (No 2) [2001] WASCA 207; (2001) 24 WAR 488. In any event, the arrest on suspicion brought into play rights that flowed to the accused under the Criminal Investigation Act, s 137 and s 138. These rights were afforded to him. There is an issue with s 139(3) which I will explore later.
The second arrest - did Bragg have a reasonable suspicion to justify an arrest?
19 The first issue arising is whether Bragg had a reasonable suspicion that the accused had committed an offence. A reasonable suspicion can be held by the arresting officer personally or by the delegor of the function of arrest, in this case Detective Sergeant Rakich (Rakich). Rakich was not called by the prosecution to give evidence of his state of mind and suspicion.
20 In evidence-in-chief (ts 112) Marsh asserted that the people present were Rowson, Rakich, Correia, Prins and himself. He could not
(Page 7)
- remember whether Bragg was there. In cross-examination, (ts 120), the following question and answer were given:
This briefing you referred to about where [sic] Detective Ayling came into the office, I think your evidence was you weren't sure which detectives were there but you were there?---Definitely.
22 Rakich did not give any information to Bragg. He said, 'We need to bring him in here. He needs to be re-interviewed'. Bragg was not then aware of new information but was aware at the time that 'he had spoken to a witness and they had received information and that was the reason for Mr Heijne's arrest'. Bragg had earlier taken a statement from Mitchell which included par 143:
I was present when Gerrit said to Luka, 'That's when the argument started yesterday afternoon. Now there's a dead person in my apartment and I am responsible'.
23 Bragg's evidence was that the instruction from Rakich reinforced his own belief which was:
My belief was that Mr Heijne was responsible for the death of Mr Cianciosi. By him saying that Mr Heijne needed to be brought back again that reaffirmed that belief (ts 46).
24 I consider that Bragg had a reasonable suspicion that the accused may have committed an offence which would justify arrest and do not need to explore further the question of whether the delegor had a reasonable suspicion.
Was the accused arrested by Bragg at 3.10 am on 5 January 2008?
25 Bragg's evidence was that when detectives were despatched he waited for a time for another officer and then went on his own. He drove to the accused's business premises arriving at about 3.10 am. At the rear of the premises he saw a roller door up and tail lights of a vehicle parking. He went to the sallyport area, spoke to the accused who was on his own, carrying food, and advised him that he was under arrest 'for suspicion' of being involved in the death of Mr Cianciosi. The accused appeared to be
(Page 8)
- upset as he had just bought some food which he wished to eat. Bragg said that was okay but denied him the opportunity to get changed. After the accused secured the premises they travelled back to the Major Crime Squad office.
26 Bragg said that in the car there was:
[light] conversation. I was trying to make Mr Heijne relaxed because I was on my own. We spoke of how he got into chicken and he said that he liked chicken (ts 27).
27 Bragg did not handcuff the accused. Although the accused was in the front seat this was not the usual practice. The officer was not armed. In the car park he was met by Rowson and other officers and the accused accompanied them. Bragg kept a journal in which he recorded significant events. The journal does not record his arrest of the accused.
28 Bragg agreed that it was important to record in his journal the fact that he had arrested somebody. He agreed that the COPs manual provided that where people were afforded rights or arrested under the Criminal Investigation Act those matters were to be recorded. He acknowledged that he did not record the fact that the accused had been arrested or the charge upon which he had been arrested in his journal. Some time after the delivery of the accused to the other officers, Bragg filled in the computer custody system for recording persons in police custody, noting that he was 'on custody'.
29 At the commencement of the challenged record of interview the following questions and answers occurred between Rowson and the accused (page 2):
Q. Okay. As a result of new information that we received Detective Bragg re-arrested you at 3.10 this morning at your workplace. Is that correct?
…
A. Asked me to come with him, yeah.
Q. Yeah, yeah.
A. Didn't arrest me.
Q. Is that correct?
A. Yes, that's correct.
(Page 9)
30 This led to an interesting submission by Mr Fiannaca that what was said on the record of interview was hearsay and not evidence because it was not an admission against interest. I could have no regard to it. He later backed away from the submission somewhat, suggesting rather that the statement had little weight.
31 I say this is an interesting submission because the prosecution itself had tendered the video record of interview and in other submissions asked me to take account not only the demeanour of the accused in the record of interview but also his responses to questions, choosing to answer some and not others.
32 A recognised exception to the rule against hearsay concerns the use that can be made of a mixed statement by an accused which is led in evidence by the prosecution. In that event the whole of the evidence is admissible in evidence including any exculpatory parts: Middleton v The Queen (1998) 19 WAR 179; Beck (1989) 43 A Crim R 135, Mule v The State [2005] HCA 48; (2005) 221 ALR 85 [141]. The spontaneous answers of the accused in response to Rowson's questions in the statement are relevant bearing in mind of course that it is not on oath.
33 On all the evidence I am unable to be satisfied that the accused was formally arrested by Bragg. The circumstances were that Bragg was there on his own, in the dead of night, approaching a person whom he reasonably suspected may have recently killed another person. He had no weapon and no handcuffs. In those circumstances it is natural that he would be conciliatory rather than confrontational.
34 This conclusion is reinforced by the lack of any contemporaneous note. I do not overlook the entry on the custody computer thereafter but that entry merely records the obvious fact of the status of the accused at the time when the entry was made - he was in police custody. It does not confirm whether he was there by way of arrest. The lack of a record in his journal militates against there being a formal arrest. Bragg is relying solely on his recollection of events nearly 15 months ago. I find the accused was not formally arrested by Bragg. It follows that he was not then advised of the offence for which he was being arrested.
Was there a breach of the Criminal Investigation Act?
35 There is no evidence that the accused was ever told he was under arrest following his reapprehension by Bragg at any point until after the completion of the record of interview. He may well have assumed so by
(Page 10)
- reason of the similar treatment he had received earlier in the day when he had been arrested.
36 Although not formally notified of being arrested, he nevertheless was in fact arrested in the sense that he was unable to move freely or leave police custody. He therefore attracted rights, including the rights under s 137 and s 138. These were afforded to him at the commencement of the record of interview.
37 Rowson purported to exercise powers under the Criminal Investigation Act by interviewing the accused who was in fact an arrested suspect. If the Criminal Investigation Act was not complied with, the non-compliance was immaterial in the circumstances. The non-compliance was that the arrested suspect was not informed as soon as practicable of the offence for which he (or she) had been arrested. However, the accused well knew the basis of the police investigation. He had instituted the investigation in the first place.
38 There is a real issue whether the Criminal Investigation Act, s 154, applies to a DVD of an interview. On the assumption but without deciding that it does, and also on the assumption that there was a contravention of the Act, having regard to s 155 of the Criminal Investigation Act, I am amply satisfied on this aspect: that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence having regard to the matters in s 155(3), noting that the seriousness of the contravention in the circumstances is not great.
Was the accused advised of his rights to communicate or attempt to communicate with a legal practitioner?
39 An arrested suspect's right is a right to a reasonable opportunity to communicate or attempt to communicate with a legal practitioner. Under s 138(3), the officer in charge must inform him of this right. Plainly from the earlier events of the day the accused was aware of this right. He did not request an adjournment to seek further legal advice. I have noted Mr Richardson's submissions about it being early in the morning and the practical difficulties of obtaining advice. Had the accused indicated a wish to seek further legal advice, then the continuation of the interview would have likely rendered it inadmissible. He did not do so. He had already received legal advice. What had changed was that the police now had further information to put to the accused, but as is clear from the record of interview, the legal advice which he had received continued to operate on his mind. The topic was the same as before.
(Page 11)
The place of confinement; the Criminal Investigation Act s 139
40 During the first period of custody, the accused was detained in an interview room, kept under observation and supplied with food. From time to time it appears that he was allowed out, under supervision, to smoke outside the building. The door to the interview room was unlocked at the time of his occupation of it. He was certainly not free to depart or even leave the room. His sister visited on one occasion. He was observed to be asleep on another one or two occasions.
41 During the second period of detention and after arrival with Bragg, the accused was taken by Rowson to the interview room where he was left for about two hours.
42 An arrested suspect detained for interview must be detained in the company of an officer and not in a lockup or other place of confinement unless the circumstances make it impracticable to do so: s 139(3).
43 The first inquiry is whether the section should be read ejusdem generis, the 'generis' being established by the word 'lockup'. I am inclined to the view that for the purpose of the Criminal Investigation Act the expression 'other place of confinement' should be read ejusdem generis to denote some place set apart and used for the confinement of prisoners. An interview room may not fit that definition. However, it is not necessary for me to determine this issue.
44 Assuming, without deciding, that the interview room was a 'place of confinement' under s 139, Marsh gave evidence that it was impracticable to detain the accused elsewhere. The office was an open plan arrangement. I take note of Mr Richardson's point that the open plan rendered the room perfect, but I am not persuaded by it. There are lots of reasons why the detention of a suspect in a working police open plan room would be unsuitable, not to say impracticable. Although there may not have been an officer in the interview room with the accused the entire time, the evidence satisfies me that he was at all times relevantly in the company of a police officer. I do not consider there was any breach of s 139(3).
Conclusion on the Criminal Investigation Act
45 Although I have found that the accused was not arrested in a formal sense at approximately 3.10 am by Bragg, and consequently not informed of the offence for which he was being detained, in the circumstances I
(Page 12)
- regard this as an immaterial breach which does not lead to the exclusion of any evidence.
46 The rights he acquired as an arrested suspect were given to him, although not as soon as practicable, and were administered at the commencement of the record of interview. The accused had had legal advice and I am satisfied that advice continued to operate on his mind. There was no breach relating to his place of confinement.
Exclusion on the grounds of general unfairness discretion
47 There is a judicial discretion to reject a confession if in all the circumstances it would be unfair to use it in evidence against him. There is also a judicial discretion to reject a confession on public policy grounds. The extent to which these are separate heads of the discretion power or part of an 'overall discretion' has been of interest to academic writers; see The Criminal Law in Queensland and Western Australia (5th ed), ch 26, par 22.
48 In the present case, I consider there is no relevant unfairness to justify exclusion of the record of interview in relation to the length of time or sleep deprivation. The Criminal Investigation Act is, amongst other things, remedial in nature. At common law there is no power for police to detain any suspect for the purposes of questioning, detention for such purposes in light of the discretion to exclude on the basis of unfairness or unlawfulness of police conduct.
49 Cases from the High Court in which this was a central issue now have to be viewed in light of the statutory power to detain for a period, with possibility of an extension. Neither the first period in custody nor the second exceeded the specified times in the Criminal Investigation Act, s 140, the first being subject to an extension. Even though the accused was left alone for two hours before the challenged interview, detention during that period was lawful.
50 The accused, through counsel, asserts that he was sleep deprived at the time of the second interview. Although in the interview the accused acknowledged that he did not require much sleep, that was in a slightly different context and it was not a direct response, because he was never asked, as to whether he was too tired to be interviewed. It was relevantly unfair of the police not to inquire about his fatigue and whether he felt he was in a fit state be interviewed.
(Page 13)
51 The evidence would suggest that he had not slept for 24 hours, apart perhaps for a short time on the floor of interview room. Common experience would suggest that a normal person would be fatigued to some degree. The accused certainly showed signs of fatigue during the challenged interview. That said, the responses he gave are lucid, coherent and display no misunderstanding of the questions.
52 Police who choose to interview suspects in the early morning after the suspect has had an extended period without sleep run the risk of exclusion of the subsequent interview. There does not appear to be any particular reason why it was necessary to interview the accused without giving him the opportunity to sleep. Nevertheless, having regard to the interview in all the circumstances, I am not persuaded that the discretion should be exercised on fairness grounds in respect of that matter.
The form of the questions
53 The form of the questions asked is worrying. During the first interview the accused made it clear that on legal advice he was not prepared to answer questions about the matter. Nevertheless, the officers persisted in questioning him. Of course officers have a duty to investigate offences and have a right to ask questions. Provided the questioning does not become persistent or importuning, they may put facts to a suspect for comment or challenge a suspect's version of events. That however is a different thing from persisting with questioning after the suspect has firmly exercised a right to silence. In R v Ireland (1970) 126 CLR 321 the Chief Justice, Sir Garfield Barwick, said:
In Reg v Evans referred to in the judgment delivered in the Supreme Court, the Supreme Court of South Australia in conformity with its earlier decisions in Lenthall v Curran and Bailey v The Queen decided that it was improper for police investigating the commission of a crime to persist in questioning a suspect after an indication that he did not wish to answer any more questions. In those cases, police questioning had so persisted but no statement or admission by the suspect had resulted. None the less the Court condemned the further questioning and excluded evidence of it in the exercise of what is now a clearly established judicial discretion to exclude evidence otherwise admissible because of the unlawfulness or unfairness of the manner of its discovery or creation.
In these cases a rule of practice for the conduct of police officers was laid down. I agree with them in so far as they do so. I also agree that the evidence of the questioning in those cases was rightly excluded but for the reason that it was irrelevant. But evidence of relevant statements or admissions obtained by conduct in breach of that rule will not for that reason become irrelevant and inadmissible. The breach of the rule will
(Page 14)
- afford a ground for considering the exercise of a judicial discretion to exclude such evidence (333).
54 Subsequently in R v Stafford (1976) 13 SASR 392 Bray CJ notes:
The law confers the right of silence on suspected persons except insofar as any statute takes it away. That right must be respected by the police and enforced by the courts (399).
55 In the present case the following exchange occurred in the challenged record of interview:
Q. Okay, Gerrit, obviously a lot has gone on during the evening in regard to forensics attending your residence and us speaking to people?
A. Yes.
Q. Okay. Do you have anything you want to say about this matter in relation to Frank passing away?
A. No (ts 4).
56 Questioning then continued concerning Mr X. The accused answered several questions about that before saying:
No. Look, I'm not going to talk about this, right, because [Mr X] has obviously told you crap. I'll just leave it at that (ts 88).
57 Shortly after he was asked:
Well, I believe through speaking with your family members that you have actually been through a marriage ceremony and stuff like that. Is that correct or not?
A. Well, I won't comment on any of this (ts 8).
58 That was repeated:
Q. Do you remember seeing him Thursday morning before you went to work?
A. No, I won't. I'm not going to talk about any of this.
Q. Well, I've got to ask the questions.
A. I know. I know you do. I know you have got to do your job.
Q. And that - that's your right. Do you understand?
A. I know. I know.
(Page 15)
- Q. But like I said before, there are some hard questions that need to be asked.
A. I know.
Q. Whether you choose to answer or not is entirely up to you.
A. I know.
Q. Thursday that you believed Frank didn't come to work, was that because he was already dead Thursday when you left for work?
A. I don't want to make any comment.
Q. Do you remember the last time you saw Frank alive?
A. I'm not going to (indistinct) make any comment (ts 10 - 11).
59 The prosecution argue that the accused freely exercised his right not to comment, which was respected, but chose to respond to other questions and wished to find out what was in Mr X's statement. However, my firm impression gained from viewing both the earlier interview and the challenged interview is that the accused wished to exercise his right not to incriminate himself by declining to comment to specific allegations or volunteering information against his interest. That right should have been respected by police after being emphatically stated. Instead, questioning continued for a time in the first interview and more relevantly continued extensively in the challenged interview.
60 Although the accused did choose to answer some questions, he did so in a situation where police had not fairly respected his right, on legal advice, to decline to answer questions, kept at him, and changed tack. The right to silence once emphatically asserted is not to be undermined by continued questioning. In the exercise of both a fairness discretion and on the grounds of public policy, if they are different discretions, I exclude the record of interview.
Inadmissible material within the record of interview
61 In any event, I would exclude the record of interview on the grounds that its probative value is slight and its prejudicial value is great and I make it clear this is a different discretion.
62 It may be accepted, as the prosecution argued, that a record of interview can contain mixed statements and it is proper for the whole record of interview, in some circumstances, to go before a jury to place certain answers in context. However, that principle is not to be confused
(Page 16)
- with the basic requirement that evidence must be relevant. Where information contained in a question is admitted the answer is relevant. Where a question is denied, context may make the answer relevant in some circumstances. Where, however, there is neither admission nor denial but simply an assertion of a right to silence by words such as 'I don't wish to comment on this', the question is not admissible as evidence of a fact and the question and answer are not admissible as context because it is simply the exercise of the right.
63 This appears to be the view expressed by Miller JA in Mackrell v State of Western Australia [2008] WASCA 228; (2008) 37 WAR 414 at [103] although strictly this was obiter dictum. The direct authority for inadmissibility is Petty & Maiden v The Queen (1991) 173 CLR 95.
64 The prosecution acknowledged that what the accused's counsel described as Palmer-style questions are inadmissible. The accused lodged specific objections to portions of the video record of interview. The prosecution has responded to each numbered objection. In some cases the prosecution has conceded the material is inadmissible or does not press for its inclusion. In other instances the prosecution accepts that the answers are repetitious. In response to the accused's other objections the prosecution contends that the material contains an admission against interest which is admissible and that non responsive answers suggesting that the accused does not wish to comment must be seen in the context of the whole document.
65 I have considered both the application and the responses. In view of the short time between now and the trial I will not now set them out, but I conclude that each objection is made out and should be upheld for the reasons advanced on behalf of the accused. That would leave a document so truncated or a record of interview so truncated as to have little evidential value.
66 The prejudice in allowing the record of interview to go to the jury in such a truncated form is dangerous in that the jury may speculate impermissibly as to why it is so and give greater weight than necessary to what remains. A careful direction by me may overcome some of the prejudice, but I am not persuaded that a direction in these circumstances would necessarily prevent a miscarriage of justice.
67 I am aware that some of what remains might be statements against interest, but nevertheless conclude that, taken as a whole, its probative value is not outweighed by its prejudicial value and it should be excluded.
(Page 17)
- For these reasons also I would exclude the challenged record of interview on the basis that its probative value is slight and its prejudicial value is great.
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