The State of Western Australia v Holmes - [2019] WASC 413

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- HOLMES [2019] WASC 413
CORAM:   MCGRATH J
HEARD:   27-28 AUGUST & 26 SEPTEMBER 2019
DELIVERED          :   13 NOVEMBER 2019
FILE NO/S:   INS 11 of 2019
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
DEBRA JANE ALICIA HOLMES
Accused

Catchwords:

Criminal law - Evidence - Admissibility of unrecorded admissions - Whether reasonable excuse for absence of recording - Discretion to exclude evidence on grounds of voluntariness, reliability and unfairness - Effect of intoxication - Turns on own facts

Legislation:

Criminal Code (WA), s 279
Criminal Investigation Act 2006 (WA), s 115, s 118, s 154, s 155

Result:

Part of admissions not audiovisually recorded admissible

Category: B

Representation:

Counsel:

Prosecution	:	Mr B E F Tooker
Accused	:	Ms H E Prince

Solicitors:

Prosecution	:	Director of Public Prosecutions (WA)
Accused	:	Curt Hoffman & Co

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

Blum v The State of Western Australia [No 2] [2012] WASCA 40
Collins v The Queen (1980) 31 ALR 257
R v Lee (1950) 82 CLR 133
R v Swaffield [1998] HCA 1; (1998) 192 CLR 159
Sinclair v The King (1946) 73 CLR 316
The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285
Van Der Meer v The Queen [1988] HCA 56; (1988) 62 ALJR 656
Wendo v The Queen [1963] HCA 19; (1963) 109 CLR 559
Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1

MCGRATH J:

The accused, Ms Holmes, has been charged on indictment which pleads that on 15 July 2018 at Muja she murdered Wayne Kenneth Chappell. Ms Holmes has pleaded not guilty to that count and is proceeding to trial in December 2019.
By application dated 16 May 2019 the State seeks leave to adduce evidence of the admissions allegedly made by the accused to police officers who attended the scene which were not audiovisually recorded, pursuant to s 118(3)(b) and, in the alternative, s 155 of the Criminal Investigation Act2006 (WA) (CIA).
The State's application is opposed by the accused. The accused, in opposition, raises issues of voluntariness and reliability due to her level of intoxication and emotional state at the time she made the alleged admissions.
For the following reasons, I have determined that only part of the contended admissions made by the accused to the attending police officers are admissible.
In these reasons for decision, I will consider the following:
(a)The factual background.
(b)The admissions which the State seeks to adduce.
(c) The relevant legal principles.
(d)An assessment of the merits of the application.

Factual background - State's case

The State's case is that the accused deliberately shot her partner, Mr Chappell, with a rifle at close range. The State contends that the accused did so with the intention to kill Mr Chappell or, in the alternative, with the intention to inflict a bodily injury of such a nature as to endanger, or be likely to endanger, his life.
The State has provided a short statement of material facts which may be summarised as follows.[1]
[1] State's Outline of Submissions in relation to an Application to Adduce Unrecorded Admissions [4] - [14].
The accused was in a relationship with the deceased for approximately 35 years. They have two children and four grandchildren together. The accused and the deceased lived together at 393 Hebb Road, Muja, which is a rural property of some 160 acres.
The State's case is that on Sunday 15 July 2018, the accused and the deceased were at their residence. The deceased was spending the afternoon in the shed watching an AFL game. Both the accused and the deceased were drinking alcohol throughout the afternoon. The accused was intoxicated with a Blood Alcohol Concentration (BAC) of 0.204% at the relevant time.
An argument commenced between the accused and the deceased which led to the deceased grabbing the accused by her hair and dragging her along the bitumen outside the shed. The accused was fed up with the way that she had been treated over the course of their 35‑year relationship and, in particular, the way she was being treated that day.
The accused went to the main house and retrieved a .22 calibre rifle and returned to the shed. The accused then shot the deceased once in the torso. The deceased fell to the ground. The accused returned to the main house at 7.28 pm and telephoned 000. An ambulance arrived shortly after. At 8.06 pm Mr Chappell was pronounced dead.
A forensic examination was completed at the scene. The expended firearm cartridge was located approximately 1.5 m from the deceased.
A post-mortem examination was conducted on the deceased and the cause of death was determined to be a gunshot injury to the abdomen.
The State contends that a likely issue at trial may be a claim of self-defence by the accused.[2] Consequently, the State submits that a significant fact in issue at trial will be the location from which the rifle was retrieved, being either from inside the main house or from inside the shed.[3] The accused gave different accounts regarding that issue to the attending officers and in her police interview. The defence did not identify the likely issues at trial during the directions hearing.
[2] State's Outline of Submissions in relation to an Application to Adduce Unrecorded Admissions [16] - [17].
[3] State's Outline of Submissions in relation to an Application to Adduce Unrecorded Admissions [18] - [20].
At the directions hearing the State tendered material including the State's brief of evidence,[4] the recording of the 000 call made by the accused[5] and the DVD and transcript of the record of interview conducted with the accused on 16 July 2018.[6] The State called nine witnesses at the directions hearing, being police officers Mr Taylor,[7] Mr Ngari,[8] Mr Avellino,[9] Mr Soutar,[10] Mr Bradley,[11] Mr Henderson,[12] Ms Page,[13] Mr Simpson[14] and Mr Morgan.[15] In addition to the respective witnesses' oral testimony, each officer had previously provided a written statement which formed part of the State's brief of evidence.
[4] Exhibit 1.
[5] Exhibit 4.
[6] Exhibits 2 and 3.
[7] ts 17 - 55.
[8] ts 56 - 94.
[9] ts 94 - 120.
[10] ts 120 - 144.
[11] ts 146 - 170.
[12] ts 170 - 192.
[13] ts 193 - 204.
[14] ts 226 - 258.
[15] ts 204 - 226.

Evidence sought to be adduced by the State

The State seeks leave to adduce the following evidence of the alleged admissions made by the accused to the attending police officers.[16]
(1)Statement of First Class Constable Avellino made 30 July 2018 at [77] - [89], [100] - [111], [116] and [130] - [136].[17]
(2)Statement of Constable Ngari made 3 August 2018 at [60] ‑ [66], [70] - [75] and relevant parts of his notes.[18]
(3)Statement of Senior Constable Taylor made 23 July 2018 at [85] - [89].[19]
(4)Statement of Senior Sergeant Soutar made 18 September 2018 at [13] - [20], [24] - [25] and relevant parts of his notes.[20]
(5)Statement of Detective Senior Constable Bradley made 19 July 2018 at [52] - [53] and relevant parts of his notes.[21]
(6)Statement of Detective First Class Constable Henderson made 25 July 2018 at [51] - [53] and relevant parts of his notes.[22]
(7)Statement of Senior Constable Page made 23 July 2018 at [16] - [17] and [26] - [28].[23]
(8)Statement of Detective Senior Constable Morgan made 19 July 2018 at [11] - [20] and relevant parts of his notes.[24]
[16] Application dated 16 May 2019; State's Outline of Submissions in relation to an Application to Adduce Unrecorded Admissions [21].
[17] Exhibit 1, State's Brief of Evidence, 28 - 43.
[18] Exhibit 1, State's Brief of Evidence, 44 - 52, 53 - 59.
[19] Exhibit 1, State's Brief of Evidence, 60 - 70.
[20] Exhibit 1, State's Brief of Evidence, 96 - 100, 405 - 406.
[21] Exhibit 1, State's Brief of Evidence, 101 - 112, 115 - 118.
[22] Exhibit 1, State's Brief of Evidence, 119 - 132, 133 - 138.
[23] Exhibit 1, State's Brief of Evidence, 150 - 154, 155 - 159.
[24] Exhibit 1, State's Brief of Evidence, 165 - 170, 179 - 181.

Outline of relevant paragraphs

The relevant paragraphs of the officers' statements are reproduced below.
(1)Statement of First Class Constable Avellino made 30 July 2018 at [77] - [89], [100] - [111], [116] and [130] - [136]:
77.     The accused began talking about what had happened.
78.It was apparent that the accused had been drinking alcohol. I could smell alcohol on her breath and she had a slight slur in her speech, which would come and go.
79.     I commenced to caution the accused at 8.20 pm.
80.S/C TAYLOR also made attempts to caution the accused.
81.She understood that she did not need to speak to police, but said that she did not care and wanted to tell us what happened.
82.While the accused was talking, I continued to interrupt her to tell her not to talk to us without speaking to a lawyer. Each time she would just tell us that she wanted us to know.
83.The accused said that she had been drinking with the victim in the shed, when the victim began arguing about the footy.
84.The accused said that she did not know why, but he just got angry, grabbed her by the back of the hair and dragged her down to the ground.
85.The accused said that she left the shed and went into the house.
86.She came back and the shed was locked.
87.She said she wanted to scare him and told the victim to open up and let her in.
88.The victim told her to "get fucked" so she left and came back with the keys to the shed.
89.The accused opened the shed and shot him.
…
100.   The accused continued to talk about what happened.
101.S/Sgt SOUTAR and I kept interrupting and telling her that it is best if she does not say anything until she speaks to a lawyer.
102.S/Sgt SOUTAR told the accused that this is as serious as it gets and she should take our advice.
103.She said that he can't be dead because she only shot him once in the groin.
104.We were reminding her that whatever she told us could be used as evidence in court and to wait until she spoke to a lawyer.
105.The accused was saying that she wasn't going to lie and wanted to tell us what happened.
106.The accused said many things while we were waiting for Detectives to arrive.
107.She was regularly advised not to say anything by myself and S/Sgt SOUTAR, but continued talking regardless.
108.The accused said that she always keeps the .22 rifle under her bed. The reason is because her husband works night shift and the world is crazy, so she needs to protect herself.
109.When asked about the victims guns, the accused said that she did not know where the gun safe keys were, or how many guns the victim had.
110.The accused said that for 35 years, the victim has been mean to her. She has tried everything, but he is always critical of everything.
111.We would try and divert her conversation away from taking about what happened.
…
116.The accused would say that she was going to jail for ten years, so the least we could do is let her finish the wine.
…
130.The accused began talking about the victim again and appeared angry.
131.She said that he was an arsehole and called her fat every day.
132.The accused stood up and turned around saying do I look fat to you.
133.I left the house again to speak to S/Sgt SOUTAR, leaving her with PC NAGARI.
134.I came back in and told the accused that the Detectives should not be too far away now.
135.She said why do you need Detectives here. It's simple. I shot my husband because he's an arsehole. I haven't done anything wrong. I just stood up for myself after 35 years.
136.I told the accused not to say anything and that the Detectives were not far away, so she could speak to them about what happened.
(2)Statement of Constable Ngari made 3 August 2018 at [60] ‑ [66], [70] - [75] and relevant parts of his notes.
60.     At 8.20 pm 1/C AVELLINO cautioned the accused.
61.I observed SC TAYLOR cover the accused hands with disposable coverall and seal them with evidence tape.
62.The accused did not heed the caution and instead stated she did not care as she wanted us to know the truth.
63.The accused stated that the victim and she had an argument and the victim got angry out of nowhere.
64.The victim then started hitting the accused and dragged her out of the shed by her hair.
65.Victim asked the accused why he was being so mean and horrible but the accused told her to fuck off.
66.Victim then went and got the rifle, took a set of keys, opened the shed and shot the victim.
…
70.I was present when the accused was further arrested by Detective Senior Constable BRADLEY PD15124 (Det S/C BRADLEY) on suspicion of Murder.
71.The accused was further cautioned by Det S/C BRADLEY) and given her CIA rights.
72.The accused repeated that she did not care and wanted police to know the truth.
73.During the time I was present with the accused, she kept telling police what had happened despite being asked to wait for the interview.
74.I made notes on the running sheet I was keeping numbered 1 - 7.
75.I now present those notes.
(3)Statement of Senior Constable Gregory Taylor made 23 July 2018 at [85] - [89].
85.As I did this the accused started making comments about what had happened.
86.I attempted to caution the accused but she stated it was ok and she just wanted us to know what had happened.
87.1/C AVELLINO and I made several further attempts to ensure she understood the caution.
88.I eventually managed to advise her of the full caution saying 'You are not obliged to say anything unless you wish to do so but anything you say can be taken down and may be given in evidence.'
89.1/C PC AVELLINO broke it down for her further however she said something similar to 'He got angry about a footy team he doesn't even support. He was shouting at me and he even dragged me around the ground by my hair. I had enough and went inside and grabbed the gun from under my bed. I went back outside to the shed. I was only going to scare him but when he opened up the door he started shouting abuse at me again and I shot him. I 'shouldn't have.'
(4)Statement of Senior Sergeant Soutar made 18 September 2018 at [13] - [20], [24] - [25] and relevant parts of his notes.
13.I eventually got het to sit at the table so she could be more comfortable, Senior Constable AVELLINO advised her of her rights after arresting her on Suspicion of Grievous Bodily Harm and cautioned her.
14.The accused continually wanted to talk about what had occurred and asked if Wayne was alright or okay.
15.We repeatedly told her not to discuss the matter, it was very serious and unfortunately Wayne was dead.
16.At various stages she asked that friends and different lawyers be contacted but she could not provide numbers for them. It was explained that her friends could not come to the address, we were dealing with a serious crime scene. It was also explained attempts would be made to contact a lawyer once their details were fully known.
17.I tried to explain how serious the incident was but she did not appear to listen and kept wanting to talk about it.
18.She did not want to be examined by staff from SJA despite our requests.
19.The accused stated on several occasions: 'Wayne and I argued. He dragged me by my hair. He should not have done that. He was mean to me all the time, he called me fat. I didn't mean to shoot him. I didn't even aim it. I only wanted to scare him.'
20.I kept interrupting her and trying to divert the conversation away from what had happened but she continued to talk about the incident.
…
24.The accused continued to engage me upon re-entering the premises to explain what had occurred. I kept reminding her she was under caution, the situation was very serious and she should not discuss the matter with us.
25.The conversations with the accused where in the same mould as before with her trying to explain what had happened and with me trying to divert her from the subject and talk about other things including her family, farm and pets.
(5)Statement of Detective Senior Constable Bradley made 19 July 2018 at [52] - [53] and relevant parts of his notes.
52.HOLMES stated 'I didn't mean to kill him, I ended up shooting him, I don't understand what all the fuss is about.'
53.I recorded these direct comments in my Police daybook.
(6)Statement of Detective First Class Constable Henderson made 25 July 2018 at [51] - [53] and relevant parts of his notes.
51.At 11.25pm, Constable LEES and PAGE completed seizing the items from the accused and came out of the bedroom sitting her down on the same seat where she was before.
52.As she sat down the accused stated, 'My husband was an arsehole so I shot him.'
53.She also said, 'I feel relieved. I've been pushed too far.' 'For 35 years.'
(7)Statement of Senior Constable Page made 23 July 2018 at [16] ‑ [17] and [26] - [28].
16.She said 'I shot him, I meant to injure him, but not kill him.'
17.She further said 'I should be the victim, I've suffered 35 years of domestic violence.'
…
26.Whilst in the bedroom the accused was saying 'I've been on a diet because I get told I'm fat every day, do you think I'm fat.'
27.She said 'I'll go and ask those Detectives if they think I'm fat.'
28.She further said 'Why do you need my clothing, I shot him, I admit it.'
(8)Statement of Detective Senior Constable Morgan made 19 July 2018 at [11] - [20] and relevant parts of his notes.
11.At 11.40pm a female who I now know to be Debra HOLMES was sat in a chair next to the dining table.
12.The accused appeared intoxicated but understood what was happening and reacted with an understanding according to what was asked of her.
13.The accused kept asking for a glass of wine which I declined and she was given a glass of water.
14.Out of nowhere the accused looked up at me and said 'What is there to say. Wayne is an arsehole. I went out to speak with him and he went rah rah rah. He was horrible. I went and got the gun and shot him in the guts. I didn't think it would kill him.'
15.I advised the accused that she did not have to talk to police and told her that in fairness to her she should wait until she had spoken to a lawyer and she could speak with other detectives on video.
16.The accused replied 'I shot him. I'm not going to mess you around or deny it. If I go to prison it will be a holiday. I shot him and killed him.'
17.I recorded the comments in my day book there and then.
18.I was unable to get the accused's signature as she had her hands covered for any possible forensic evidence.
19.I asked Constable NGARI to endorse my notes as he was standing next to me when the accused made the comments.
20.I now produce these notes as exhibit SM/02.
At the directions hearing the State also relied on evidence of Officer Simpson.[25] At [29] of his statement Officer Simpson states that the accused 'was making unsolicited comments to the room in general about what had happened'. Officer Simpson states that he observed Officer Morgan recording the utterances of the accused in his daybook.[26] Whilst the State's application did not particularise that the recollections of Officer Simpson would be adduced by the State, I will, necessarily, consider his proposed evidence.
[25] Exhibit 1, State's Brief of Evidence, 291 - 298; ts 226 - 257.
[26] Exhibit 1, State's Brief of Evidence, 295; Statement of Officer Simpson made 24 July 2018 [30].

Relevant legal principles

Section 118 of the CIA provides:
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;
adult means a person who has reached 18 years of age;
child means a person who is under 18 years of age;
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.
(2)This section applies in respect of a suspect who is -
(a)a child charged with an indictable offence, irrespective of whether, if an adult were charged with it, it could be dealt with by a court of summary jurisdiction; or
(b)an adult charged with an indictable offence that cannot be dealt with by a court of summary jurisdiction.
(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.
Section 154 of the CIA provides:
154.Evidence obtained improperly
(1)In this section -
authorisation includes a warrant and an order.
(2)If in the purported exercise of a power conferred by this Act or by an authorisation issued or purportedly issued under this Act -
(a)a thing relevant to an offence is seized or obtained; and
(b)a requirement of this Act in relation to exercising the power or issuing the authorisation, including a requirement that arises before or after the exercise of the power or the issue of the authorisation, is contravened,
any evidence derived from the thing referred to in paragraph (a) or from the exercise of the power is not admissible in any criminal proceedings against a person in a court unless -
(c)the person does not object to the admission of the evidence; or
(d)the court decides otherwise under section 155; or
(e)if the power exercised was exercised in relation to a protected person (as that term is defined in section 73), the court is of the opinion that the contravention arose out of a mistaken but reasonable belief as to whether the person was a protected person.
Further, s 155 of the CIA provides:
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.
Section 118(3) of the CIA provides that unrecorded admissions are prima facie inadmissible. There are limitations concerning the categories of admissions that fall within s 118(3) of the CIA. First, the subsection only applies to admissions made by a 'suspect' as defined in s 115 of the CIA, that is, a person suspected of having committed an offence whether or not he or she has been charged with the offence. Second, pursuant to s 118(4) there must be reasonable grounds for that suspicion. The third limitation is that s 118(3) only applies to admissions made to a police officer or a Corruption and Crime Commission officer.
At the directions hearing there was no dispute between the parties that the three limitations of s 118(3) of the CIA had been satisfied in this case. It is clear that the police officers attended the scene having been informed that the accused told the 000 call operator she had shot her husband. Accordingly, each officer had a reasonable ground for suspecting that the accused had committed an offence by discharging a firearm. Further, the accused's statements were made to serving police officers.
The definition of the term 'reasonable excuse' in s 118(1) of the CIA is not, in its terms or effect, exclusive. There may be a reasonable excuse which does not fall within those matters referred to in the subsection.[27] Whether there is a reasonable excuse requires an examination of all the circumstances relevant to the making of the alleged admission.[28]
[27] Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1 [55].
[28] Blum v The State of Western Australia [No 2] [2012] WASCA 40 [63].
An issue in this case is whether there was a reasonable excuse to not record the admissions for the reason that they were made when it was not practicable to make an audiovisual recording under s 118(1)(a). In Wright v The State of Western Australia, Blaxell JA stated that, consistent with the meaning of 'practicable', the issue whether a given task is practicable involves an enquiry as to the means and resources available to accomplish it.[29] Accordingly, Blaxell JA observed that the question of whether or not it was 'practicable' to record an admission will always involve a consideration of what resources (in terms of personnel and equipment) were available.[30] Other factors include the time that was available to organise those resources, the degree of expectation that an admission might be made and whether or not this justified the effort and cost involved in utilising the resources.[31]
[29] Wright v The State of Western Australia [148].
[30] Wright v The State of Western Australia [150].
[31] Wright v The State of Western Australia [151].
Section 155 of the CIA takes effect when any other section of the CIA determines that it is applicable to evidence which is otherwise inadmissible. Therefore, pursuant to s 118(3)(b)(ii) of the CIA, s 155 applies to the proposed evidence of the unrecorded admissions of the accused.
Section 155(2) of the CIA provides that the court may nevertheless decide to admit the evidence which is otherwise inadmissible if it is satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence. In making such a decision, there are numerous factors the court must take into account as outlined in s 155(3) as well as any other matter the court thinks fit.
Section 155 of the CIA does not impact upon the common law determination of the issue of whether a confession or admission was made voluntarily. In determining the admissibility of a confession or admission under s 155(2), the court must consider any objection that the confession or admission was involuntary. Therefore, a concurrent determination of the issue of voluntariness must be made. If a determination is made that the confession or admission was involuntary, the undesirability of admitting the evidence would necessarily outweigh the desirability of admitting the evidence. If a determination is made that the officer had a reasonable excuse under s 118(1) of the CIA then the issue of voluntariness must still be considered.
The word 'voluntary' does not mean volunteered. Rather, it means made in the exercise of a free choice to speak or to be silent.[32] The issue of voluntariness focuses upon the will of the accused and must be applied according to the age, background and psychological condition of the accused and the circumstances in which the confession was made. Voluntariness is not an issue to be determined by reference to a hypothetical standard. It requires a careful assessment of the effects of the actual circumstances of the case upon the will of the particular accused.[33]
[32] R v Lee [1950] HCA 25; (1950) 82 CLR 133, 149.
[33] Collins v The Queen (1980) 31 ALR 257, 307 (Brennan J).
In a case where the accused's mind was affected by intoxication with alcohol or drugs, the issue of voluntariness will depend on whether or not the accused understood what she was doing.[34] A confession made by an intoxicated accused is admissible unless 'the degree of intoxication is so great as to deprive him of understanding what he was confessing'.[35]
[34] Wright v The State of Western Australia [113].
[35] Sinclair v The King (1946) 73 CLR 316, 336 (Dixon J).
If the issue of voluntariness is raised, the State has the onus of establishing, on the balance of probabilities, that the confession was voluntary.[36]
[36] Wendo v The Queen [1963] HCA 19; (1963) 109 CLR 559.
In circumstances where an accused is intoxicated, to some extent, a confession will not be voluntary unless the evidence demonstrates that, on the balance of probabilities, the accused was capable of appreciating that she had a free choice as to whether to speak or remain silent and was capable of exercising sufficient volition to give effect to what she knew was this right.[37]
[37] The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285 [155].
The basis for the rule excluding admissions which are not voluntary is a combination of the potential unreliability of a confessional statement that is involuntary and the common law privilege against self‑incrimination.[38]
[38] The State of Western Australia v Silich [152].
If the admissions of the accused which are not audiovisually recorded are admissible for the reason that the officers had a reasonable excuse for not so recording and the confession was voluntary then circumstances may require a further determination as to whether the admissions should be rendered inadmissible in exercising the discretion under common law on the basis of unreliability or unfairness. There are three possible bases for discretionary exclusions. They are that it is unfair to the accused to admit the confession, that public policy considerations make the admissions unacceptable or that the prejudicial effect of the evidence outweighs its probative value.[39]
[39] R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 [52].
In determining whether a confessional statement should be excluded, the question is not whether the police have acted unfairly; the question is whether it would be unfair to the accused to use her statement against her.[40] The discretion to exclude a voluntary admission on the basis of unfairness is not limited to cases in which the admission has been procured by unlawful or improper conduct on the part of the police but extends to other relevant factors. Unreliability is an important aspect of the discretion to exclude evidence on the ground of unfairness.[41]
[40] Van Der Meer v The Queen [1988] HCA 56; (1988) 62 ALJR 656, 666 (Wilson, Dawson & Toohey JJ).
[41] R v Swaffield [54].

State's evidence - analysis

The police officers' conversations with the accused may be divided into two distinct periods, namely the period when the first responders arrived and the period marked by the subsequent arrival of further officers, including the investigating detectives. At approximately 8.00 pm the accused was apprehended by the first responders. The accused then remained at her residence in the company of the attending police officers until midnight, at which time the accused was taken from the premises. Throughout this period, the accused made various admissions. The officers kept the accused at her residence and did not attempt to record her utterances by audiovisual means at any time during that period. I will now particularise the arrival times of the officers.
At 7.28 pm on 15 July 2018 the accused called 000 from her residence at 393 Hebb Road, Muja.
At 7.35 pm officers at the Collie Police Station were advised over the police radio that a female had shot her husband in the abdomen with a .22 calibre gun and he was in the shed not breathing.[42]
[42] Exhibit 1, State's Brief of Evidence, 28; Statement of Officer Avellino made 30 July 2018 [4].
At 7.50 pm Officers Avellino and Ngari arrived at the property.[43] At 7.59 pm Officer Taylor arrived at the property.[44] Upon the three officers' arrival the accused presented to them holding a firearm.[45] The accused released the firearm and the officers then entered the premises. After the firearm was secured, the three officers remained with the accused. I will refer to Officers Avellino, Ngari and Taylor as the first responders.
[43] Exhibit 1, State's Brief of Evidence, 28; Statement of Officer Avellino made 30 July 2018 [9].
[44] Exhibit 1, State's Brief of Evidence, 60; Statement of Officer Taylor made 23 July 2018 [8].
[45] Exhibit 1, State's Brief of Evidence, 60; Statement of Officer Avellino made 30 July 2018 [12].
At approximately 8.20 pm the accused commenced making utterances in the presence of Officers Avellino, Ngari and Taylor. I have particularised the utterances above at [17], being [77] - [89] of Officer Avellino's statement, [60] - [66] of Officer Ngari's statement and [85] - [89] of Officer Taylor's statement.
At approximately 8.20 pm Officer Soutar arrived at the residence.[46] Officer Soutar, in the presence of Officer Avellino, informed the accused that Mr Chappell was dead.[47] At that time the accused made further utterances that the State relies upon as admissions. From the evidence relied upon by the State, it is not possible to find that Officer Soutar formed part of the first responders. Further, it is not possible for a finding to be made that Officer Soutar was present when the initial admissions were made by the accused to Officers Avellino, Ngari and Taylor.
[46] Exhibit 1, State's Brief of Evidence, 60, 96; Statement of Officer Soutar made 18 September 2018 [4]; Statement of Officer Avellino made 30 July 2018 [91].
[47] Exhibit 1, State's Brief of Evidence, 96; Statement of Officer Soutar made 18 September 2018 [11].
At 7.30 pm Officer Page, whilst on duty with Officer Green, received a call from Police Communications to attend 393 Hebb Road, Muja.[48] At 10.22 pm Officer Page arrived at the property.[49]
[48] Exhibit 1, State's Brief of Evidence, 150; Statement of Officer Page made 23 July 2018 [4].
[49] Exhibit 1, State's Brief of Evidence, 58.
However, Officer Page did not enter the residence until the officers from Bunbury Detective's Office arrived. Therefore, Officer Page did not interact with the accused until 10.50 pm.[50]
[50] Exhibit 1, State's Brief of Evidence, 101, 150; Statement of Officer Bradley made 19 July 2018 [22]; Statement of Officer Page made 23 July 2018 [10] - [12].
At 10.30 pm the Bunbury detectives arrived, being Officers Bradley and Henderson.[51] At approximately 10.50 pm Officers Bradley and Henderson entered the residence along with Officers Page and Lee.[52] Upon entering the residence Officer Page was introduced to the accused.[53] In the presence of Officers Bradley and Henderson, Officer Page heard the accused make an admission.
[51] Exhibit 1, State's Brief of Evidence, 58, 101, 119; Statement of Officer Bradley made 19 July 2018 [12]; Statement of Officer Henderson made 25 July 2018 [9].
[52] Exhibit 1, State's Brief of Evidence, 58, 101, 119; Statement of Officer Bradley made 19 July 2018 [22]; Statement of Officer Henderson made 25 July 2018 [22].
[53] Exhibit 1, State's Brief of Evidence, 150; Statement of Officer Page made 23 July 2018 [12].
At 11.09 pm Officers Simpson and Morgan arrived.[54] At midnight the accused was taken from the property.[55] The contemporaneous notes of Officer Ngari made at the scene record the respective arrival times of the officers.
[54] Exhibit 1, State's Brief of Evidence, 58, 165, 291; Statement of Officer Simpson made 24 July 2018 [17]; Statement of Officer Morgan made 19 July 2018 [6].
[55] Exhibit 1, State's Brief of Evidence, 58.
I will now consider the admissions made to the first responders, being Officers Avellino, Ngari and Taylor, prior to any other officers arriving.
At 8.10 pm Officers Taylor, Avellino and Ngari secured the crime scene after apprehending the accused who was initially holding a firearm.[56] The officers then declared the scene a protected forensic area.[57] Between 8.10 pm and 8.18 pm the accused made admissions to Officer Taylor.[58] The utterances were made while Officer Taylor was securing the hands of the deceased with polypropylene coveralls.[59] At 8.20 pm Officers Taylor and Avellino cautioned the accused but the accused stated that she wanted the officers to know what happened and made further admissions.[60] At 8.28 pm Officer Taylor made a recording in his notebook.[61] Officer Ngari was present. Therefore, the accused continued to speak to the officers securing the crime scene immediately after she was apprehended.
[56] Exhibit 1, State's Brief of Evidence, 58.
[57] Exhibit 1, State's Brief of Evidence, 58.
[58] ts 60.
[59] ts 19.
[60] ts 21, 61.
[61] ts 54.
The utterances made by the accused to the first responders have previously been outlined, being [85] - [89] of Officer Taylor's statement, [77] - [89] of Officer Avellino's statement and [61] - [66] of Officer Ngari's statement. Officer Avellino did not make contemporaneous notes of the admissions but did commence drafting his statement on the night of the incident.[62] Officer Ngari made contemporaneous notes of the admissions made at approximately 8.20 pm.[63] Officer Ngari continued to make contemporaneous notes throughout the night when other officers were present. Therefore, Officer Ngari's notes may be divided into two parts, being the utterances made by the accused at approximately 8.20 pm and the utterances of the accused made subsequently at various times throughout the night. The utterances that Officer Ngari recorded after 8.20 pm will be considered when I turn to the admissions made to other attending officers.
[62] ts 100.
[63] Exhibit 1, State's Brief of Evidence, 54.
The admissions to the first responders were not audiovisually recorded. However, I am of the view that the officers had a reasonable excuse for not audiovisually recording the admissions. Officers Taylor, Ngari and Avellino were responding to reports of a person being shot. The officers diligently apprehended the accused and were securing the crime scene when the utterances were made by the accused. Officer Taylor gave testimony that he was unaware whether they had a video camera and that he was focussed on securing the accused and the forensic area.[64] Officer Taylor stated that whilst he had a mobile, he did not consider using it to record the accused's admissions.[65] Officers Avellino and Ngari gave similar evidence as to why the admissions made at approximately 8.20 pm were not recorded.[66] Officer Ngari stated that there may have been a video recorder in the police vehicle but he did not check.[67] In fairness, Officer Ngari was a first responder whose responsibility was to apprehend the accused who held a firearm. Officer Avellino was the first officer to enter the residence.[68] Officer Avellino did not consider recording the utterances.[69] He considered that he was not interviewing the accused.[70] His role was to preserve the scene and look after the accused awaiting the arrival of the detectives.[71]
[64] ts 25.
[65] ts 46.
[66] ts 70.
[67] ts 74 - 75, 83.
[68] ts 96.
[69] ts 41.
[70] ts 101 - 102.
[71] ts 102.

Accordingly, I am of the view that the initial admissions made to Officers Taylor, Avellino and Ngari, as first responders, at approximately 8.20 pm are not inadmissible for the reason that they were not recorded audiovisually.
For reasons that I will outline when dealing with the subsequent officers who attended the incident, I find that any further admissions made to Officers Taylor, Avellino and Ngari during the night are not admissible. In particular, I refer to the notes made by Officer Ngari during the night concerning utterances made by the accused to other attending officers.

Admissions to other police officers

I now turn to the admissions made by the accused to various police officers throughout the period from after 8.20 pm to midnight. Throughout that period the accused was kept at her residence whilst different police officers arrived.
Between 8.20 pm and 8.30 pm Officer Soutar arrived at the property.[72] Officer Taylor gave evidence that after the accused made the first admissions to him, he went outside and spoke to Officer Soutar and advised him of what had occurred.[73] Therefore, Officer Soutar entered the residence after the accused had already made the initial admissions to the first responders. Office Soutar, in his statement and testimony, referred to admissions made by the accused at various times throughout the night.[74] At no time did Officer Soutar attempt to audiovisually record the admissions. Officer Soutar expressed the view that he did not audiovisually record the admissions because he 'didn't think it was in was in her best interests for - for us to start recording' and that 'policy dictates that your general-duties police officer cannot interview for … serious offences'.[75]
[72] ts 79, 121.
[73] ts 25.
[74] ts 124.
[75] ts 128.
The State submits that Officer Soutar had a reasonable excuse not to record the admissions, being that he did not wish to violate the accused's rights and that his task was to secure the scene.[76] I am of the view that the explanation provided by Officer Soutar is not satisfactory and does not provide a reasonable excuse for not audiovisually recording the admissions. For this reason, the admissions recorded by Officer Avellino at [100] - [111] and [116] of his statement, made in the presence of Officer Soutar, and [130] - [136], made in the presence of Officer Ngari, are also inadmissible.
[76] State's Supplementary Outline of Submissions in relation to an Application to Adduce Unrecorded Admissions [55] - [58].
Officer Bradley arrived at 10.30 pm and entered the residence at 10.50 pm.[77] At 11.28 pm the accused made admissions to Officer Bradley which were not audiovisually recorded.[78] Officer Bradley stated that there was a video camera in his vehicle which was at the property.[79] Further, he had a smartphone that was capable of making audiovisual recordings.[80] Officer Bradley's explanation for not recording the admission was that he was attending to exhibits. Therefore, he did not anticipate admissions being made and did not have a camera at hand to record them.[81] I am of the view that the explanation given by Officer Bradley is not satisfactory and does not provide a reasonable excuse for not recording the admissions. By the time the admissions were made to Officer Bradley, the accused had been held at her residence since she was apprehended at approximately 8.00 pm. Throughout that time the accused was making utterances. Yet no officer walked to the police vehicles to obtain a video camera. For this reason, the admissions recorded by Officer Ngari at [70] - [75] of his statement, made in the presence of Officer Bradley, are not admissible.
[77] ts 149; Exhibit 1, State's Brief of Evidence, 115.
[78] Exhibit 1, State's Brief of Evidence, 116.
[79] ts 159.
[80] ts 159.
[81] ts 155.
Officer Henderson arrived at the scene at about 10.30 pm and was given a briefing by Officer Taylor.[82] As part of that briefing he was advised that the accused had made admissions to Officer Taylor.[83] Officer Henderson states that after 11.00 pm the accused made admissions that were not audiovisually recorded.[84] Officer Henderson stated that he had access to a video camera at the property[85] and a smartphone that was capable of making audiovisual recordings.[86] Officer Henderson's explanation for not recording the admissions was that he was performing a specific task, namely securing exhibits, at the time the admissions were made and that he was not performing an interview.[87] I am of the view that the explanation given by Officer Henderson is not satisfactory and does not provide a reasonable excuse for failing to record the admissions. For an extended period prior to Officer Henderson arriving at the property the accused had been detained and was known by the police officers in attendance to be making admissions. Yet no one walked to a police vehicle to obtain a video camera.
[82] ts 171.
[83] Exhibit 1, State's Brief of Evidence, 133; ts 181.
[84] Exhibit 1, State's Brief of Evidence, 134.
[85] ts 185.
[86] ts 183.
[87] ts 77.
After 10.30 pm Officer Page, with Officer Lee, entered the residence along with Officers Bradley and Henderson.[88] Officer Page gave evidence concerning an admission made by the accused while she was seizing the accused's clothing.[89] That admission was not recorded. Officer Page stated the reason that the admission was not recorded was because she was not in attendance to interview the accused, rather, her role was to search the accused and seize her clothing and, therefore, did not record her due to privacy reasons.[90] I am of the view that the explanation given by Officer Page is not satisfactory and does not provide a reasonable excuse for not recording the admissions.
[88] ts 195 - 196.
[89] ts 196.
[90] ts 196 - 197.
Officer Morgan attended the scene at approximately 11.00 pm to assist the other detectives.[91] Officer Morgan recalled that at 11.40 pm further admissions were made by the accused.[92] The admissions form part of the statement of Officer Morgan at [11] - [20]. Officer Morgan had a smartphone that was capable of making audiovisual recordings.[93] Officer Morgan's explanation for not audiovisually recording the admissions was that 'they were unsolicited comments' and that 'it wasn't practicable to record the comments'.[94] Officer Morgan stated that the accused continued to make admissions after being cautioned and that he told the accused to seek legal advice.[95] I am of the view that the explanation given by Officer Morgan is not satisfactory and does not provide a reasonable excuse for not recording the admissions.
[91] ts 206 - 209.
[92] ts 206 - 208.
[93] ts 209.
[94] ts 208.
[95] ts 206 - 208.
Officer Simpson arrived at the scene at approximately 11.00 pm.[96] Previously at 8.10 pm, Officer Taylor had informed Officer Simpson by telephone that the accused was making admissions.[97] Officer Simpson stated that when he entered the residence the accused was making admissions.[98] Officer Simpson decided not to audiovisually record the utterances for the reason that he was not there to do an interview and to commence recording would have been unfair to the accused and would have turned it into an interview.[99] I am of the view that the explanation given by Officer Simpson is not satisfactory and does not provide a reasonable excuse for not recording the admissions.
[96] Exhibit 1, State's Brief of Evidence, 58.
[97] ts 228 - 228.
[98] ts 234 - 235.
[99] ts 235.
Accordingly, I am of the view that only Officers Taylor, Avellino and Ngari had a reasonable excuse for not audiovisually recording the accused's initial admissions. I am of the view that the other officers did not have a reasonable excuse for not audiovisually recording the subsequent admissions of the accused.
I will now turn to the issue of intoxication. I do so in order to determine whether the initial admissions made to Officers Taylor, Avellino and Ngari, which were not recorded, were made voluntarily. I will then turn to the question of the discretion under s 155 of the CIA in respect of the admissions made to the subsequent attending officers to determine whether the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.

Voluntariness - intoxication

I now consider the issue of voluntariness. The primary basis upon which the accused contends that the admissions were not voluntary is intoxication. The accused also relies upon the fact that she had been assaulted by the deceased and was in an emotional state at the time the police officers attended her residence.
The issue of intoxication was the subject of examination at the directions hearing. The attending police officers gave evidence concerning their respective assessments of the accused's sobriety. The accused did not give evidence at the directions hearing and no adverse inference may be drawn from that election.
The issue is whether the accused, when making the utterances to the police, and despite her intoxication, was capable of:
(a)appreciating she had a choice to speak or remain silent and was capable of exercising sufficient volition to give effect to what she knew was this right; and
(b)understanding what was being said to her and, significantly, what she was uttering and hence admitting.
The effects of alcohol vary to a significant degree from person to person. Questions of fact and degree will arise in determining whether a confession made by an accused who is intoxicated to some extent was voluntary.
At approximately 7.28 pm on 15 July 2018 the incident occurred. At 6.05 am on 16 July 2018 a blood sample was taken from the accused. Accordingly, the sample was taken 10 hours 37 minutes after the approximate time of the incident. The ChemCentre report determined that the sample returned a blood alcohol level of 0.099% and that the estimate of the accused's blood alcohol level at the time of the incident, on a back calculation, was 0.204%.[100]
[100] Exhibit 1, State's Brief of Evidence, 338 - 339.
There is evidence as to the likely impact of a BAC of 0.204% on cognitive functioning. The State's brief of evidence includes a statement from Dr Grasko who reviewed the ChemCentre report.[101] Dr Grasko stated that whilst the ChemCentre methodology is credible but imprecise, the accused's BAC at the time of the shooting would not have been materially less than the estimate.[102] Dr Grasko provided answers to the following questions:[103]
[101] Exhibit 1, State's Brief of Evidence, 454 - 461.
[102] Exhibit 1, State's Brief of Evidence, 455 - 456.
[103] Exhibit 1, State's Brief of Evidence, 459.
1.    What are the general effects of alcohol intoxication?
Answer:     The general effects of acute alcohol intoxication are the effects of the alcohol on the brain which is considered a brain depressant. These effects are largely dependent on the blood alcohol concentration and results in both physical and behavioural features. The effect may be subtle at first with minor mood changes and clumsiness and progress to difficulty walking, slurred speech, poor judgement, fluctuating mood, nausea and vomiting and finally progressing to unconsciousness. A more comprehensive description is given, above.
2.    What can you say about a BAL of 0.011%?
Answer:     A BAL of 0.011% would be expected to produce at least some degree of intoxication even in unaccustomed drinkers.
3.What can you say about a BAL of 0.204%?
Answer:     A BAL of 0.204% would be expected to produce on a significant intoxication as expanded on in the above paragraphs even in heavy habitual drinker.
4.What effect does tolerance have on alcohol intoxication?
Answer:     The concept of tolerance is the state of relatively preserved cognitive capacity, judgement, emotional control and behaviour in the customary heavy drinker, compared with lighter drinkers. The tolerance varies and is unreliable. Enough alcohol impairs all these things even in habituated drinkers. Few, and maybe no, tolerant drinkers would be free of impairments to cognitive capacity, judgement, emotional control and behavioural control when BAL exceeds 0.2%.
The evidence supports a finding that the accused has a history of significant alcohol use. Ms Tara Chappell, the accused's daughter, observes that her mother had problems with alcohol, never just having a glass but a bottle or two.[104] Ms Dayna Lancaster, the accused's other daughter, states that her mother would drink wine by the bottle.[105] Mr Christopher Waywood, the accused's son-in-law, states that the accused 'would drink a lot' and after two bottles of wine she would 'go either dopey/silly, or get aggressive'.[106] The deceased's brother, Mr Kim Chappell, in his statement, confirms the accused's extensive consumption of alcohol.[107]
[104] Exhibit 1, State's Brief of Evidence, 313.
[105] Exhibit 1, State's Brief of Evidence, 320 - 321.
[106] Exhibit 1, State's Brief of Evidence, 329.
[107] Exhibit 1, State's Brief of Evidence, 401 - 402.
In her record of interview, the accused stated that when she was at her residence after the incident she was a 'drunken blithering mess' and that she could not remember saying anything.[108]
[108] Exhibit 1, State's Brief of Evidence, 276, 285.
The police officers at the property gave evidence at the directions hearing concerning the accused's level of sobriety. Officer Bradley gave evidence that prior to obtaining a non-intimate forensic sample from the accused, his assessment was that the accused was affected by alcohol and appeared to not have an understanding of her situation and, as such, seemed unable to consent to the procedure.[109]
[109] Exhibit 1, State's Brief of Evidence, 139; ts 166.
Officer Taylor, in cross-examination, stated that he assessed the accused as being intoxicated, referring to the accused 'continually talking about various things, just random sort of things until she started talking about the incident and then she sort of became focused on that'.[110] Officer Ngari gave evidence that he assessed the accused as being intoxicated with slurred speech but that she 'wasn't intoxicated to a level that she could not walk or talk or understand what [had] happened' and that she appeared to understand the caution.[111] Further, the accused's behaviour did not show that she was affected by alcohol, but rather, she appeared to be distressed.[112]
[110] ts 25, 39 - 40.
[111] ts 71, 78.
[112] ts 81.
Officer Avellino stated that the accused was slurring on occasions[113] and appeared to be affected by alcohol.[114] Officer Soutar stated that the accused spoke with some slurred speech.[115] Officer Soutar gave evidence concerning his assessment of the accused's level of intoxication. Officer Soutar stated that he had 'very coherent conversations' with the accused about a range of subjects.[116] Officer Bradley, in assessing the accused's level of intoxication, stated that the accused's eyes appeared glazed and she appeared a bit restless.[117] Further, the accused spoke with a clear but raised voice and was 'very easy to understand'.[118] Officer Henderson confirmed that the accused's speech was slurred and slightly delayed.[119] Officer Henderson stated that the accused appeared incoherent and restless and did not appear to understand the caution given by him.[120] Officer Morgan gave evidence that whilst the accused appeared to be intoxicated, her speech was not slurred and when she stood up she was steady on her feet.[121]
[113] ts 98.
[114] ts 116 - 117.
[115] ts 122 - 123, 133.
[116] ts 124.
[117] ts 150.
[118] ts 153.
[119] ts 173.
[120] ts 183.
[121] ts 211.
Officer Simpson stated that the accused 'seemed fully aware what was going on, her speech wasn't slurred' and that she was 'steady on her feet' and not prone to any outburst that 'he'd associate with a higher level of intoxication'.[122]
[122] ts 237.
I am of the view, based upon an assessment of the evidence, that the accused's utterances were voluntary.
First, the 000 telephone call is demonstrative of the fact that the accused was able to converse in a very clear and methodical manner. The accused's speech does not appear to be slurred. Further, the accused engages in a conversation with the operator, providing complete answers in a responsive manner. It is clear that the accused is emotional during the 000 call. However, the 000 call, which is approximately 20 minutes in duration, supports a finding that the accused was able to give coherent answers and details concerning the incident and articulate her ongoing fear concerning the deceased.
Second, the evidence of the police officers, which I have outlined above, supports the finding that whilst the accused was intoxicated, she was able to converse clearly and coherently.
Third, the accused after her apprehension exercised judgment and free will. The accused was invited to submit to a preliminary breath test. To that question, the accused responded 'Do I have to?' Officer Henderson replied 'No' with the consequence that the accused stated 'Okay, I won't do it then'.[123] The recollection of Officer Henderson was corroborated by Officers Bradley[124] and Page.[125]
[123] ts 174.
[124] ts 151 - 152.
[125] ts 196.
Fourth, the accused, after her arrest and becoming aware of her rights as a suspect, requested to speak to a lawyer and provided the name of her preferred lawyer.[126]
[126] ts 62 - 63, 102, 113, 123.
In arguing against the admissibility of the admissions, the accused also relies upon the fact that she was assaulted by the deceased and was emotional at the time due to the death of her partner of 35 years. Therefore, the utterances made to the first responders are unreliable. After carefully considering these factors, I find that the admissions made by the accused to the first responders are reliable and voluntary.
Finally, after carefully considering the admissions I am of the view that the initial admissions made to Officers Avellino, Taylor and Ngari (as first responders) should not be excluded on the basis of unfairness, nor do public considerations make the admissions inadmissible nor does the prejudicial effect of the evidence outweigh its probative value.

Discretion under s 155 of the CIA

I now turn to the discretion under s 155 of the CIA. I have outlined the applicable legal principles.
The State's submission is that, should a finding be made that the respective officers did not have a reasonable excuse for not recording the admissions, then the desirability of admitting the evidence outweighs the undesirability of admitting the evidence. The State contends that the respective admissions were made voluntarily, are relevant to an allegation of murder, their probative value is high, the contraventions were inadvertent with the accused wishing to speak to the officers and the officers made either contemporaneous notes or statements within a short time period after the admissions were made.
The breach of the CIA by the various officers was not inadvertent. The police officers who arrived after the first responders detained the accused at the property until midnight. During the period from approximately 8.30 pm to midnight the accused made utterances that the State contends are admissions. The officers who arrived after the first responders knew that the accused had previously made admissions and was continuing to make admissions. Video cameras were accessible to the officers at the residence and yet no officer retrieved a camera. The reasons offered for not audiovisually recording the continual admissions are specious. In short, the officers contend that they did not wish to violate the accused's rights and that they considered it was appropriate to await a formal interview. By that very action, the police officers violated the accused's rights.

Conclusion

Accordingly, I am of the view that the unrecorded statements made by the accused to the first responders are admissible. They are [85] - [89] of Officer Taylor's statement, [60] - [66] of Officer Ngari's statement and [77] - [89] of Officer Avellino's statement as particularised at [17]. I find that each of the first responding officers had a reasonable excuse for the absence of an audiovisual recording of the admissions. Further, I find that the admissions made to the first responders were voluntary, the admissions are reliable and that public policy considerations do not make the admissions inadmissible nor does the prejudicial effect of the evidence outweigh its probative value.

However, I do not accept the State's contention that the further admissions made to other attending police officers as well as the first responders later in the evening are admissible. The officers failed to audiovisually record the admissions without reasonable excuse. Further, in exercising the discretion under s 155 of the CIA, I find that the contended admissions of the accused to the subsequent attending officers are inadmissible.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DH
Research Orderly to the Honourable Justice McGrath
13 NOVEMBER 2019