The State of Western Australia v Jones
[2006] WASC 274
•1 DECEMBER 2006
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- JONES [2006] WASC 274
CORAM: HASLUCK J
HEARD: 26 NOVEMBER - 1 DECEMBER 2006
DELIVERED : 1 DECEMBER 2006
FILE NO/S: INS 42 of 2006
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecutor
AND
ROBERT LESLIE JONES
Accused
Catchwords:
Criminal law - Section 570D of the Criminal Code - Admissibility of unrecorded confessional statements - Cross-examination as to prior inconsistent statement - Whether failure by prosecution to adduce an admissible confessional statement precludes cross-examination of accused as to prior inconsistent statements - Whether cross-examination of the accused in such circumstances amounts to splitting the prosecution case - Accused's confessional statement held to be inadmissible for lack of compliance with s 570D of Criminal Code
Legislation:
Criminal Code (WA) s 570D
Result:
Application to adduce evidence refused
Category: A
Representation:
Counsel:
Prosecutor: Ms L Petrusa & Ms K P Hofmann
Accused: Mr S V Smith
Solicitors:
Prosecutor: State Director of Public Prosecutions
Accused: Legal Aid WA
Case(s) referred to in judgment(s):
Nicholls v The Queen [2005] HCA 1
R v Swaffield (1998) 192 CLR 159
Shaw v The Queen (1952) 85 CLR 365
Soma v The Queen (2003) 196 ALR 421
Case(s) also cited:
Nil
HASLUCK J:
Introduction
An issue arose during the trial of this matter, prior to closure of the prosecution case, concerning the admissibility of certain evidence. The prosecution sought to adduce in evidence a signed statement made by the accused Robert Leslie Jones to police officer Bingham on Monday, 24 October 2005, being a statement made shortly after the accused was interviewed by the police and released to bail in respect of the subject charges.
Objection was taken to this on the grounds that the statement did not contain admissions against interest. Further, and in any event, defence counsel contended, there was a lack of compliance with s 570D of the Criminal Code (WA).
Background
The issue arose in this way. The prosecution case was that as at Saturday, 22 October 2005 David Tolley was employed as a labourer for A & E Contracting at a roadworks site in Maidstone Street, Mount Tarcoola. His supervisor on that day was the accused, Robert Jones. The prosecution alleged that at about midday on the day in question the accused berated Tolley about a task he was to do with the bobcat and this led to an altercation on the Maidstone Street work site. A fellow worker called Mason McLeod persuaded Tolley to walk away.
The prosecution alleged that as Tolley was walking down Newhaven Street to collect his car the accused drove his landcruiser at Tolley, which led to Tolley being hit with the bullbar of that vehicle.
On the prosecution case, the accused then attacked Tolley with a shovel. At this stage Mason McLeod arrived and separated the two men. On the prosecution case the accused used his vehicle and the shovel in Newhaven Street in a way which amounted to attempts to unlawfully kill Tolley; hence the first count on the indictment that on 22 October 2005 at Mount Tarcoola the accused attempted to unlawfully kill Tolley; and the second count that on the same date and at the same place he again attempted unlawfully to kill Tolley.
Tolley was treated at the Geraldton Regional Hospital by Dr McDonald and the details in that regard form part of the prosecution case. I note in passing that the contentious statement signed by the accused Jones on Monday, 24 October 2005 ostensibly relates only to the first altercation on the Maidstone Street work site, not to the second encounter or altercation in Newhaven Street which underlies the subject charges.
The contentious statement
The contentious statement was brought into existence in this way. The complainant Tolley made a statement to the police on Sunday, 23 October 2005 at about midday, being the first of two signed statements. He then made a second statement at about 6.40 pm on the same day.
It seems that as a consequence of the two statements made by the complainant, David Tolley, police inquiries led to a visit to the accused's premises at about 8 pm on Sunday, 23 October 2005. This visit was undertaken with a view to searching the premises and it seems that the accused's vehicle was then removed. The accused was cautioned by police officers in the usual way at the time of the search as the proceedings were being recorded on video.
In due course the accused was interviewed at greater length at the Geraldton police station, with that interview being recorded on video. The interview commenced late in the evening, being completed after midnight; that is to say, in the early hours of Monday, 24 October 2005. I note in passing that there is some indication in the transcript of the video interviews in question that the accused had obtained legal advice or that, at least, the notion of obtaining legal advice was in his mind.
The accused was then released to bail in the early hours of Monday, 24 October 2005. Having been released to bail, with it apparently being present to his mind that charges were to be brought against him (and with the general nature of the allegations being made by Tolley being known to him) the accused returned to the Geraldton police station. At about 9.15 am on Monday, 24 October 2005, a few hours after being released to bail, the accused proceeded to make a formal complaint of assault upon him by Tolley, being a complaint that was said to arise out of the altercation between the two men on the Maidstone Street work site; that is, the first altercation between the two men.
It is to that first altercation, as I indicated earlier, that the contentious Jones statement signed on Monday, 24 October 2005 relates. The contentious statement sets out the accused's version of what occurred and at [32] includes a reference to a threat allegedly made by Tolley at that time. This was a threat, it is now said by the prosecutor, of which no mention had been made in the accused's earlier video interviews.
The prosecutor foreshadowed that this alleged inconsistency in the accused's conduct and out of court assertions would be pursued if an opportunity arose to cross‑examine the accused.
This brings me to the legal principles bearing on the issue before me.
Legal principles
It follows from the rule against hearsay that out of court statements are generally not admissible as to the truth of what is asserted. An exception to the rule is allowed for in respect of admissions against interest or confessional statements made by an accused. An admission is a statement adverse to the case of a party to legal proceedings. If it is made in criminal proceedings to a person in authority, it is generally described as a confessional statement.
It is due to this exception that s 570D of the Criminal Code was introduced. A full discussion concerning that provision is to be found in the recent High Court decision of Nicholls v The Queen [2005] HCA 1. I refer to what McHugh J said at [93] in which he observed that s 570D of the Criminal Code relevantly provides that evidence of any admission by an accused person on trial for a serious offence is not admissible unless there is a reasonable excuse for there not being a videotaped recording of the admission.
McHugh J went on to observe later at [98] that s 570D was inserted into the Code by s 5 of the Acts Amendment (Jurisdiction and Criminal Procedure) Act 1992 (WA). Nothing in the second reading or other speeches in the Legislative Assembly or the Legislative Council was thought to throw any light on the problem presented by the facts of the case before McHugh J. Nonetheless, it was clear to his Honour that the mischief at which the section was directed was the problem of admissions to the police and the perceived problem of the police verbal. The problem of the police verbal was described as including the possibility of police fabrication and the ease with which experienced police officers can effectuate it, frequent lack of reliable corroboration of the making of the statement, and the practical burden on an accused person seeking to create a reasonable doubt about the police evidence.
There is also a useful passage of dicta by Gleeson CJ at [12] of the report to this effect: that s 570D is concerned only with the admissibility of evidence, specifically the admissibility of admissions made to the police. The provision does not regulate the power of the police to ask questions and it does not impose any obligation on a person to answer questions. It does not require the whole or any particular part of an interview to be videotaped. It simply deals with a consequence of the absence of a videotaped record of an admission.
The observations made in Nicholls' case must be considered having regard to the common law rules of admissibility concerning confessional statements summarised in R v Swaffield (1998) 192 CLR 159.
Toohey, Gaudron and Gummow JJ observed in Swaffield's case at [50] that four bases for the rejection of a statement by an accused person are to be discerned in the decisions of the High Court. The first basis lies in the fundamental requirement of the common law that a confessional statement must be voluntary; that is, made in the exercise of a free choice to speak or be silent. It cannot be voluntary if it is the result of duress or preceded by an inducement held out by a person in authority. Put shortly, the will of the statement maker must not have been overborne.
The three other bases for rejection proceed on the footing that the statement was made voluntarily but should be excluded in the exercise of a judicial discretion.
The second basis is that it would be unfair to the accused to admit the statement. Unfairness in this sense is concerned with the accused's right to a fair trial, a right which might be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement. Unreliability is an important aspect of the unfairness discretion but it is not the sole factor.
The third basis focuses not on unfairness to the accused but on considerations of public policy which make it unacceptable to admit the statement into evidence, notwithstanding that the statement was made voluntarily and that its admission would work no particular unfairness to the accused. The discretion is exercised with some regard to the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by misconduct may be obtained at too high a price. In many cases the discretions under the second and third bases will overlap.
The fourth basis is pursuant to the general rule that evidence may be excluded where its prejudicial effect exceeds its probative value. For the purpose of the discretion in this context is to guard against a miscarriage of justice.
Finally, in reviewing the relevant legal principles, I am conscious that the importance of the issue before me in the present case is illustrated by the decision and reasoning of the High Court in Soma v The Queen (2003) 196 ALR 421.
In Soma's case it was held that if the prosecution failed to adduce an admissible confessional statement, the prosecution would then be precluded from relying upon or making use of the statement in the course of cross‑examination concerning alleged inconsistencies between that statement and the evidence given at trial. To do so would amount to splitting the prosecution case, contrary to the principle in Shaw v The Queen (1952) 85 CLR 365 at 380 and other cases to the effect that the prosecution must put its case fully before the accused is called upon to announce the course that he will follow at trial.
Hence, in the present case, counsel for the parties before me recognise that if the contentious Jones statement is admissible, then it must be adduced as part of the prosecution case before any use can be made of it.
Conclusion
Having regard to the principles I have mentioned, I consider that the contentious Jones statement does contain admissions against interest which bring it within the exception to the rule against hearsay mentioned earlier. The accused states that there was a fierce altercation on the Maidstone Street work site and speaks of a threat made by the accused at that time. An out of court assertion of this kind could be used against the accused; first, to support the prosecution case that the later altercation in Newhaven Street was characterised by ill‑will and a criminal intention; second, to rebut any suggestion that the accused approached Tolley in an entirely innocent way, being a matter put up by the accused in the course of his video interviews.
It follows from earlier discussion that a confessional statement will only be admissible if made voluntarily. I accept that the statement was made voluntarily because the accused of his own free will went to the police station for that purpose. The absence of any caution does not stand in the way of admissibility because by then the accused had been cautioned and released from police custody on bail.
Nonetheless, to my mind, the fact that the accused was on bail, and in the recent aftermath of a police interview and police inquiries, is a matter of some concern. There are indications that the accused was prompted to make the contentious statement as a form of retaliation or as a kind of strategic response to the police questioning. This view of the matter has a bearing upon my approach to the issues concerning the application of s 570D of the Criminal Code.
Section 570D(2) is explicit that evidence of "any" admission by the accused shall not be admissible unless it is on videotape. The prosecution concedes that recording equipment was available at the time the contentious statement was made and thus prima facie the Jones statement which contains admissions (as I have held) is not admissible owing to a lack of compliance with the statutory provision. The statement was taken at a time when clearly, in the police view, there were reasonable grounds to suspect that the accused had committed the alleged offences.
Thus, the contentious Jones statement, having regard to the criteria set out in s 570D of the Criminal Code, could only be admitted if the exception to the basic rule allowed for by s 570D(2)(c) applies; that is, if I were satisfied as the presiding judge that there were exceptional circumstances which in the interests of justice justified the admission of the evidence.
In circumstances of the present case I am not satisfied that this exception can be utilised. First, the Jones statement is confined to the first altercation on the work site in Maidstone Street. The accused's statement in that regard is relevant but cannot be described as central to the matters in issue. Second, as I have indicated, I perceive some degree of unfairness or potential unfairness in the situation in that the statement was made in the immediate aftermath of police questioning. This leaves me with a concern about the statement's reliability, for it may have been made in a mood of apprehension or hastily; perhaps for ill‑considered strategic reasons. The decided cases indicate that unreliability is an important aspect of the discretion to admit or exclude confessional statements.
The reasoning of McHugh J in Nicholls' case, especially at [108], makes it clear that the legislature has set its face against admitting unrecorded admissions by suspects, except in special circumstances. In the end I am not satisfied that the circumstances here are sufficiently special or exceptional to justify reception of the statement.
I therefore rule that the contentious Jones statement concerning the events at the Maidstone Street work site is inadmissible owing to a lack of compliance with s 570D of the Criminal Code.
It follows that the statement will not form part of the evidence underlying the prosecution case. This means, having regard to Soma's case, that the statement cannot be used for the foreshadowed purpose of cross‑examining the accused as to inconsistencies (if any) between his evidence at trial and assertions made by him in the contentious statement at the time of the police inquiries. To allow it to be used for that purpose without being received in evidence would amount to splitting the prosecution case.
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