The State of Western Australia v JWRL (a child) [No 2] - [2009] WASC 354

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA v JWRL (a child) [No 2] [2009] WASC 354

CORAM: EM HEENAN J

HEARD: 22 OCTOBER 2009

DELIVERED : 23 OCTOBER 2009

PUBLISHED : 30 NOVEMBER 2009

FILE NO/S: INS 93 of 2009

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
JWRL (a child)
Accused

Catchwords:

Criminal law - Evidence - Evidence Act s 21 and s 22 - Alleged prior inconsistent statement - Video record of interview excluded from evidence in the exercise of judicial discretion - Not part of prosecution case - Attempt by prosecution to refer to VROI in cross-examination of accused as an alleged inconsistent statement - Evidence in rebuttal - Splitting prosecution case - Refusal to allow use of VROI in cross-examination of accused

Legislation:

Criminal Investigation Act 2006 (WA)
Evidence Act 1906 (WA)
Young Offenders Act 1994 (WA)

Result:

Proposed use of VROI as an alleged inconsistent statement in the course of the cross-examination of the accused by the prosecution not permitted

Category: A

Representation:

Counsel:

Prosecution : Mr G J Huggins and Mr S B Sandover
Accused: Mr R W Richardson

Solicitors:

Prosecution : Director of Public Prosecutions (WA)
Accused: Lavan Legal

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

JWRL (a child) v The State of Western Australia [2009] WASC 285
Morris v The Queen (1987) 163 CLR 454
R v Soma [2003] HCA 13; (2003) 212 CLR 299
The State of Western Australia v Jones (2006) WASC 274

EM HEENAN J: The question for consideration is whether it is open to counsel for the prosecution, in the course of the proposed cross‑examination of the accused, now about to begin, to suggest to the accused that he has on a previous occasion or occasions made a statement or statements inconsistent with the testimony which he has already given in‑chief and, if he does not admit or distinctly admit making such an inconsistent statement, to prove that he made the alleged inconsistent statement.
That is enough to indicate that the course proposed is one recognised under s 21 and s 22 of the Evidence Act1906 (WA) relating to prior inconsistent statements and their proof and effect. The difficulty emerges because the statement which is alleged to be inconsistent with the evidence‑in‑chief is contained in one of two records of interview conducted by the police when interrogating JWRL about this alleged offence on 1 November 2008.
Those statements have been the subject of consideration before by another judge at a preliminary hearing which is part of this trial. It was acknowledged in the course of that preliminary hearing, and I do not think it has ever been contested, that one or both of those statements contain admissions contrary to the interest of the accused, together with more neutral statements and exculpatory statements about the events in question. It had originally been the intention of the prosecution to adduce those statements in evidence as part of its case against the accused for the purpose of relying on the components which constituted admissions. That is a common and an orthodox approach in the course of the prosecution case in a criminal trial but there are rules concerning the admissibility of statements containing admissions, which in this regard can be referred to as statements containing or allegedly containing confessions. That is, first, that they must be voluntary and, second, that they must conform to the requirements of the law about fairness, public interest and compliance with special statutory requirements so far as they apply to the interrogation of suspects.
It was contended on behalf of the accused at the earlier preliminary hearing that these confessional statements or out of court statements should not be admitted into evidence at this trial because: they were not voluntary; did not comply with various statutory requirements; and were taken in circumstances which actually contravened the law. There was a further submission that in the exercise of the well‑known judicial discretion, the VROIs should be excluded on the grounds of fairness. This submission included a contention that their prejudicial effect would outweigh any probative value.
A hearing regarding the question of the admissibility of these statements as part of the prosecution evidence at this trial was conducted on 26, 27 and 28 August 2009 before Blaxell J where extensive evidence was given. His Honour concluded that the statements should not be admitted in evidence and that they should be excluded. Several reasons were given for his Honour's conclusion.
They included an acknowledgement that the statements were voluntary, in the sense in which that term is used in the authorities, but that there had not been compliance with the provisions of s 138 of the Criminal Investigation Act 2006 (WA), nor with the provisions of s 20 of the Young Offenders Act, and in particular because that Act required the officers conducting the interview and taking JWRL into custody to ensure that a responsible adult was notified of this desire to interview this youthful suspect. See now JWRL (a child) v The State of Western Australia [2009] WASC 285 per Blaxell J.
His Honour concluded that the only responsible adult who could satisfy the requirements of the statute were Mrs L, the accused's mother, and despite evidence to the contrary by the police officers, that they had not contacted her or attempted to contact her at the time the accused was taken into custody or questioned. His Honour concluded that in these circumstances the accused did not receive the fair treatment mandated by s 7 of the Young Offenders Act and he also concluded that the detectives had failed to comply with s 138(3)(b) of the Criminal Investigation Act.
His Honour made those findings in a manner which avoided direct personal criticism of the detectives, saying that their conduct was the result of an insufficient regard to their statutory obligations and 'a near enough is good enough approach to the rights of the accused'. His Honour concluded, as a result, that the accused would not receive a fair trial if the video records of interview were admitted into evidence and excluded them on the basis of his statutory power and discretion contained in ss 154 and 155 of the Criminal Investigation Act.
Consequently, those video records of interview had not been led as part of the case for the prosecution and, consistently with his Honour's reasoning and ruling, could not have been led.
The situation which now arises, however, is that counsel for the prosecution submits that, notwithstanding that ruling it is possible for the prosecution to have resort to the procedure under s 21 and s 22 of the Evidence Act to suggest to the accused in cross‑examination that he has previously made an inconsistent statement, the previous inconsistent statement being the first of the VROIs and to ask whether or not the accused admits that he has made such an inconsistent statement, and if he does not, to prove the statement. Counsel for the prosecution submits that this is only a limited use of the statements which were previously ruled inadmissible, that it will not necessarily involve any or all of the statement going into evidence and it will not transgress in any way the rulings made by Blaxell J.
The substance of the submission for counsel for the prosecution can only be appreciated if one has regards to the effects of proof or acknowledgement of the existence of a previous consistent statement. If the s 21 and s 22 procedure is followed and a previous inconsistent statement is either admitted by the witness, who may not be the accused but could be, or if not admitted is then proved, then the demonstration of the inconsistency resulting goes only to the credit of the witness and does not usually involve proof of the earlier inconsistent statement. However, one must be very cautious in accepting that as an absolute description of the consequences because quite often the further course of this procedure may lead to other questions as to whether or not the inconsistency was in fact true, and if such questions are asked and the witness acknowledges that the previous inconsistent statement was true, then the statement in court acknowledging the truth of the previous inconsistent statement will prove that statement, and that fact as well.
So although it is well acknowledged that proof of an inconsistent statement usually goes simply to credit, it will often not stop there. It may include proof of the truth of what is in the statement, and certainly it can create an impression in the minds of a jury unless carefully instructed and corrected by judicial direction, that that is the case. I mention these matters because they are necessary to understand the full effect and implication of the decision of the High Court in R v Soma [2003] HCA 13; (2003) 212 CLR 299 on which counsel for the prosecution relies for his submission.
It will be necessary for me to say something about that case and the intricacies involved in it, but before doing so, I should point out that a significant feature in Soma's case is the existence of the provisions of s 101 of the Evidence Act 1997 (Qld) which does not have a counterpart in the law of Western Australia as far as I have been able to determine. Section 101 of the Evidence Act (Qld) provides that if an inconsistent statement is proved in the manner followed in this State under s 21 and s 22 of the Evidence Act (WA), then the contents of the statement becomes evidence of the truth of what it contains, so changing significantly the common law position and the position which exists in this State. At least in Queensland, once an inconsistent statement gets into evidence its effect is not limited to credit, but extends to the proof of the contents of the statement.
I have said that that is not now usually the case in Western Australia, but I again explain that that is an incomplete description of the potential effect of this procedure because there are instances, some of which I have already exemplified, where the effect is to prove what is contained in the inconsistent statement as evidence in the case.
In this respect I now turn to a passage in Cross on Evidence (7th Australian ed) by Heydon J at par 17.535. This statement confirms the orthodox view that proof of an inconsistent statement goes only to credit. The text says:
If a statement is admitted or proved under the section, it merely impugns the testimony of the witness under cross examination (unless the witness is a party, in which case the statement may amount to an admission). It does not constitute evidence of the facts stated.
Now, in the present case this particular statement is a statement of a party, JWRL, who is the defendant to this case brought by the State. This is a situation in which proof of the statement, the inconsistent statement, may very well amount to an admission as described.
I next turn to par 17.565 of Cross dealing with this same issue and dealing particularly with the effect of s 101 of the Evidence Act 1977 (Qld). The learned author quotes from a passage in the case of Morris v The Queen (1987) 163 CLR 454, 468 ‑ 469 where the court said:
The receipt into evidence of a prior inconsistent statement as evidence of the facts therein contained poses particular problems in a criminal trial, especially where the prior inconsistent statement is more damaging to an accused person than is the testimony of the witness. Where the prosecution seeks to adduce such evidence from a prosecution witness
I stress not from the accused -
an issue may well arise as to whether the prejudicial nature of the statement does not outweigh its probative value such that, as a matter of judicial discretion, it should be excluded. If, however, such a statement is admitted, it will usually be necessary for the trial judge to give very careful and very precise instructions to a jury as to the weight the evidence should be given. The nature of the instructions will necessarily depend on the particular case. It is difficult to conceive that in a case where the prior inconsistent statement is more damaging to the accused person than the evidence by the witness, a mere invitation to the jury to consider the matters referred to in section 102 of the Queensland Act would be a sufficient instruction. In many cases, such an invitation may be to the disadvantage of the defence case.
With those preliminary observations, I turn now to the case of Soma. Soma was charged with rape. He had been interviewed by police officers after his arrest and in the course of that interview, which was tape recorded, he made a number of statements, some of which were damaging or which might constitute admissions, such as having intercourse with the woman concerned, having struggled with her and a number of other matters, but he also gave exculpatory explanations consistent with his assertion that the episode had been consensual. The prosecution was in possession of that tape recording and had initially intended to tender it as part of the prosecution case at Soma's trial. However, that statement had been taken without the accused being cautioned in the ordinary way and counsel for the accused had indicated to the prosecutor that an objection would be taken to the admissibility of the statement on that account. I should add at this point that a failure to caution an offender before taking a statement is an irregularity but it will not necessarily result in the ensuing statement being excluded, although the judicial officer will have power to do so in the exercise of discretion.
Because of that forecast objection, counsel for the prosecution in Soma's case did not press the attempted tender of that statement and rather, made no attempt to adduce it as part of the prosecution case. It was acknowledged in the Court of Appeal in Queensland and in the High Court that the statement was what has come to be termed a mixed statement, containing a mixture of admissions and exculpatory material, and the admissions, if they were received in evidence, would be capable of sustaining the prosecution case.
What happened at Soma's trial was that, after the prosecution case had closed and the accused had gone into evidence and given his version of events, counsel for the prosecution sought to use the statement, which had not been used before, to confront the witness with what was said to be inconsistent statements, then to prove the statement, one of the effects of which, because of s 101 of the Queensland Act, was to treat the statement as being evidence of the facts which it contained. Surprisingly, counsel for the accused did not object to this course and the trial judge was not required to rule on the propriety of that course. The trial proceeded. The accused was convicted. He appealed to the Court of Criminal Appeal in Queensland and that court quashed the conviction because of its conclusion that what had happened amounted to splitting the prosecution case and constituted a breach of the obligation of the prosecution to present its entire case before the accused was required to answer. This splitting of the case on a failure by the prosecution to put its entire case but then to supplement it by subsequent materials such as proof of the inconsistent statement was regarded as an improper attempt to give evidence for the prosecution in rebuttal. The Court of Criminal Appeal quashed the decision for that reason.
The prosecution in Soma obtained special leave to appeal to the High Court. That appeal was heard by the court comprising Gleeson CJ, McHugh, Gummow, Kirby, Hayne and Callinan JJ and the appeal was dismissed. The decision of Court of Criminal Appeal quashing the conviction and ordering a new trial was affirmed, essentially on the basis that the Court of Criminal Appeal was correct in concluding that there had been an improper attempt to split the prosecution case and that what had occurred amounted to an unjustifiable step of the prosecution supplementing its case in rebuttal.
A number of difficulties were acknowledged in the Soma appeals due to the absence of objection to the use of the materials during the cross‑examination of the accused at the original trial. It is not necessary today to deal with those to dispose of the point which presently needs decision, other than to say that the justices were satisfied that what had occurred amounted to a miscarriage of justice and that accordingly the decision of the Court of Criminal Appeal should be affirmed, notwithstanding that the learned trial judge had not made any error of law, not being called upon to rule on any contentious question of admissibility.
At this point it is necessary to appreciate why in Soma's case the cross examination as to the alleged inconsistent statement was thought to be an improper supplementation or splitting of the prosecution case. The answer is obvious enough. The consequence of that process was to adduce evidence tantamount to admissions by the accused and thus damaging to his case, which might have been led as part of the prosecution case. The inconsistent statement and its proof resulted in the reception of evidence which went not merely to credit, but also to proof of the commission of the offence and thereby constituted a supplementation of the prosecution case. However, one aspect of the case provoked some minor division of opinion among the justices in the High Court.
Gleeson CJ, Gummow, Kirby and Hayne JJ, took the view that the original tape recording should have been tendered as part of the prosecution case and that if there had been an objection to the admissibility of that statement or that interview on the grounds of the want of caution, it would have been for the trial judge to determine whether or not it should be received, but that there was reason to believe that it might well have been received in evidence notwithstanding that irregularity. On that basis their Honours concluded that there was a splitting of the case.
McHugh J took a somewhat different and nuanced view. On one view of McHugh J's reasons, his Honour considered that the first statement, the tape recording of the interview, would not have been admissible at the original trial as part of the prosecution case. It seems that the real reason for his Honour's view in that regard was that the course of evidence had not demonstrated that it was an inconsistent statement which the accused had failed distinctly to admit.
It will be recalled that under s 18 of the Evidence Act (Qld), the equivalent of s 21 of the WA Act, before an inconsistent statement can actually be proved, the witness must fail to admit or distinctly admit making the inconsistent statement. Only if he or she does fail to admit distinctly the inconsistent statement can it be proved. McHugh J concluded that those conditions under the Queensland Act had not been satisfied and that there had not, therefore, been an opportunity for the prosecution to tender that statement as part of its case. His Honour approached this part of the analysis of the case on the footing that the statement is to be admitted, if at all, as an inconsistent statement rather than an admission. It seems that in this part of his Honour's analysis the underlying assumption is that the statement, if admissible as part of the prosecution case, would only have been admissible if it were inconsistent and the accused had failed distinctly to acknowledge it.
That leads to a consideration of particular passages in McHugh J's judgment which had been relied upon by counsel for the prosecution. These are [78] and [80].
In [78] McHugh J says:
If the prosecution had tendered the tape in its case in chief and the trial judge had rejected it on discretionary grounds, questions would have arisen as to whether it could or ought to be admitted in rebuttal as an inconsistent statement. In my view, the tape was admissible in rebuttal of an inconsistent statement, but its admissibility was subject to the unfairness discretion confirmed by section 130 of the Act. (the Queensland Act)

and further:
If the tape had been rejected in the prosecution's case in‑chief on discretionary grounds there must have been a strong chance that the judge would have exercised the s 130 'unfairness' direction in favour of the prosecution.
Those words have been seized on by counsel for the prosecution in the present case to contend that because the VROI in this case was a statement of JWRL which had been excluded, but for different reasons, in the prosecution case, there was a strong case in favour of its admission as an inconsistent statement, during cross‑examination.
It seems, with respect to that argument, that it overlooks the focus of McHugh J's analysis. His Honour, when addressing the point of discretion, was speaking of the discretion which exists under s 18 of the Queensland Act (s 22 in Western Australia) to exclude a statement which would otherwise be admissible as being inconsistent.
It seems that his Honour's observations are limited to situations dealing with statements which although potentially inconsistent were excluded under s 22 in the exercise of discretion and not as having any wider application.
It is evident that the other justices forming the majority in Soma's case did not share this view of McHugh J but, nevertheless, like his Honour considered that this was a splitting of the prosecution case. Having reached that decision, it is evident that their Honours regarded proof of the prior inconsistent statement as inevitably going to the proof of its contents and thus supplementing the prosecution case. That is a more obvious and perhaps easier conclusion in Queensland where s 101 of the Evidence Act produces that specific effect.
But for reasons which I have already cited from Cross, where the inconsistent statement is an inconsistent statement of a party, in this case, the accused, the consequences of its reception are very likely, in my view almost inevitably, to lead to actual admissions and the supplementation of the prosecution case. That is the result which was not permitted in Soma and that is enough, of itself, to prevent the course proposed by the prosecution from being embarked upon.
But there are other reasons as well which are, in my view, at least equally powerful. The decision of Blaxell J to exclude the VROIs taken by the police from JWRL is not, on its face, limited to the use of those statements only in evidence-in-chief. It has been submitted, or at least implied by counsel for the prosecution, that the question of a different use of those statements in cross examination for the purposes of demonstrating inconsistency was not addressed by Blaxell J, not covered by the submissions or the reasons for decision, and therefore remains open.
I acknowledge that that issue was not specifically addressed and that his Honour's reasons do not deal precisely with this point, but the ruling is broad and unequivocal that the VROIs should not be admitted into evidence and that was ordered without qualification. Had some different and more limited use of the statements been desired, it seems to me that it would have been necessary for that to have been raised before his Honour and for the point to be addressed. As it was not, the order made seems to me to determine and conclude this point.
I should add that a decision of Hasluck J in The State of Western Australia v Jones (2006) WASC 274 involved a somewhat different background but, again, the desired use of an alleged confessional statement, in cross examination as part of the prosecution case to demonstrate inconsistency, was refused. His Honour held after an examination of Soma's case that the statement could not 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. I respectfully agree with and adopt the reasons expressed by Hasluck J in this case.
So far as is necessary to do so, I also address the submission of counsel for the prosecution that Jones' case can be distinguished from the present on the basis that the statement in that case had not been video recorded and hence did not comply with the provisions of s 517D of the Criminal Code as it then stood and therefore was expressly not admissible. In this case, Blaxell J considered that the VROIs were voluntary but excluded them in the exercise of discretion, not on the ground of inadmissibility, but because of the discretionary grounds. It seems to me that such a distinction between Jones' case and the present is too fine for adoption in a case where a ruling has been made that evidence in the form of a VROI should not be admitted. Even if it was only in the exercise of a discretion, the same consequences flow.
A further point is that even if I had considered that this was not an impermissible attempt to split the prosecution case, or that the desired procedure did not involve a substantial risk of admissions being derived from the accused in the form of answers, I would still have been faced with the question of deciding whether in the exercise of discretion to prevent this approach.
Such an obligation is recognised explicitly by McHugh J in Soma. If exercising that discretion it would have been necessary to have had regard to the potential effect of allowing the course proposed and having the evidence admitted. Having regard to the circumstances under which the interviews were conducted and the reasons which had led to their exclusion in the first instance as not complying with statutory obligations and not according JWRL, as a youth entitled to the protection of the Young Offenders Act, his proper rights, it would be unusual to say the least, to allow such prejudicial material into evidence.
If it had been necessary for me to undertake that course, I would have concluded that for the same discretionary reasons which prompted Blaxell J to exclude the VROIs as evidence-in-chief, they should also be excluded from use in the course of cross‑examination to prove an alleged inconsistency.
The whole of the remarks which I have been making so far in these reasons have proceeded on the assumption that the VROI does amount to an inconsistent statement by the accused. I have not been taken to particular passages in that VROI, nor has there been any close examination of whether or not an actual inconsistency exists. In fairness to counsel for the prosecution, however, I should indicate that he very properly submitted that there was nothing in the VROI which stated or implied that JWRL, when striking the blow, had not closed his eyes and struck out in the hope of hitting the deceased on the arms rather than on the head.
I proceed on the assumption that there was nothing in the VROI to that effect. Whether that amounts to an inconsistency, rather than the omission of some important detail, could only be gauged by a full examination of the VROI and the context in which the discussion about what happened occurred. I have not undertaken this task because it is not necessary for me to do so in order to rule on the point which has arisen, but I am not satisfied that there necessarily has been any inconsistency. In view of the course which I have adopted, it is not necessary for me to explore that further.
The result, therefore, is that counsel for the prosecution will not be permitted to use either of the VROIs as a basis for suggesting to the accused that he has previously made a statement inconsistent with his evidence‑in‑chief in this trial. Nor may the prosecution prove those VROIs in the event that the accused were to fail distinctly to admit what was said in them.