The State of Western Australia v Kimmorley
[2017] WASC 160
•9 JUNE 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- KIMMORLEY [2017] WASC 160
CORAM: BANKS-SMITH J
HEARD: 26 APRIL 2017
DELIVERED : 9 JUNE 2017
FILE NO/S: INS 267 of 2016
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
HELEN LOUISE KIMMORLEY
Accused
Catchwords:
Criminal law - Evidence - Whether video record of interview to be excluded - Whether admissions made voluntarily - Whether obtained unfairly - Whether accused refused to answer
Legislation:
Nil
Result:
Record excluded in part
Category: B
Representation:
Counsel:
Prosecution : Mr S L Dworcan
Accused: Mr N J Terry
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Accused: Holborn Lenhoff Massey
Case(s) referred to in judgment(s):
Pearce v The State of Western Australia [2014] WASCA 156
The State of Western Australia v Gandy [No 2] [2015] WASC 386
The State of Western Australia v Silich [2011] WASCA 135
The State of Western Australia v Smith [2010] WASC 279
BANKS-SMITH J:
Summary
Ms Kimmorley applies for the determination prior to trial of the admissibility of a video record of interview by police (VROI). Ms Kimmorley seeks to have it excluded.
The application was brought on three grounds:
(a)the interview was given involuntarily;
(b)it should be excluded on the basis of unfairness; or
(c)if the VROI is not excluded as a whole, particular passages should be excluded on the basis the prejudicial effect outweighs its probative value.
The interview was conducted by Detective Senior Constable Power and Detective Sergeant Keals. They gave evidence at the hearing of the application about the investigation that preceded the interview and the circumstances in which it was conducted.
I have determined that the VROI should not be excluded as a whole but that passages where Ms Kimmorley was attempting to exercise her right of silence are to be excluded.
The prosecution case
Ms Kimmorley is charged with wilfully and unlawfully damaging by fire an IGA Express supermarket at Perenjori (s 444(1)(a) Criminal Code), and with obtaining payment of $37,147.80 under an insurance contract by fraud (s 409(1)(d) Criminal Code).
The prosecution's statement of material facts is as follows:
Ms Kimmorley and her de-facto partner [Peter] are the owners of the Perenjori IGA X-PRESS store, located on Fowler Street, Perenjori. The entity name of the business is Helpt PTY LID, trading as IGA X-PRESS.
Ms Kimmorley, [Peter] and their [son] reside in a [house].
On the evening of 4 April 2016, Ms Kimmorley was at her home address having closed the store at approximately 5.30pm.
At about 8.30pm, Ms Kimmorley's son and [Peter] were both in bed. Ms Kimmorley stayed up and watched television, consumed alcohol and smoked cigarettes at the rear of the store.
At about 11.00pm, Ms Kimmorley used her store keys to unlock the rear roller door of the store and she entered the premises. Ms Kimmorley attended the office area at the front of the store (captured on CCTV).
Between 11.01pm and midnight (5 April 2016) Ms Kimmorley deliberately set fire to items on the office desk with the intention to cause significant damage to the office and its contents. Ms Kimmorley also poured an accelerant (analysis pending) around waist high freezers within the store however, the accelerant failed to light.
Ms Kimmorley returned to her home address and called the Perenjori Police Station Officer in Charge to report the matter. Police and the local Fire Brigade attended the scene and later that day (5 April) Geraldton Detectives and Arson Squad Detectives attended the scene to investigate the fire. The fire was determined as incendiary (arson event).
And further;
Helpt PTY-LTD (IGA X-PRESS Perenjori) is insured by GIO Business Insurance with a policy number of GS00398050.
In the days following the fire, Ms Kimmorley with intent to defraud by deceit, submitted a claim through the GIO Business Insurance Policy and reported the fire as an accident. As a result of assessment by the nominated insurance assessor, the fire incident was treated as an accident which allowed Helpt PTY LTD to receive payments to repair the structural damage, replace damaged stock and reimbursement for loss of income/business disruption.
The monies were to be paid in stages as required. To date Helpt PTY LTD received $37,147.80 from AAI Limited, trading as GIO. One lump sum payment of $27,800.00 was paid directly to the business and a further payment of $9,347.80 was paid directly to Worldsmart Retails for replacement of the electronic till system and related equipment.
On 21 April 2016, Geraldton Detectives attended Perenjori and arrested Ms Kimmorley. Ms Kimmorley participated in an electronic record of interview and made some comments.
The police investigation
The fire occurred on 4 April 2016. The following day, Detective Power and Detective Keals travelled from their station in Geraldton to Perenjori and interviewed Ms Kimmorley and her partner. At this point the police were gathering information about the fire.
Following that first meeting, the police spoke to Ms Kimmorley on various occasions by telephone. They met with her again on 18 April 2016 at the Perenjori police station. She was placed under arrest on suspicion of causing criminal damage by fire.
According to Detective Power, Ms Kimmorley was cautioned and given the opportunity to contact a lawyer. She spoke to a lawyer (Mr Ryan) at length and after that call she declined to participate in an interview. The police did not proceed with an interview.[1] Ms Kimmorley was released from custody. Detective Power told Ms Kimmorley that the investigation into what was a serious offence was ongoing and that she was waiting for the results of certain tests.[2]
[1] ts 40.
[2] ts 41.
At that point, the police were waiting on the results from a CCTV system seized from the scene. Once received, it was apparent that at some stage cords had been pulled out of the hard drive CCTV system.
Detective Power and Detective Keals returned to Perenjori on 21 April 2016 and went to Ms Kimmorley's home. They conducted a search. Amongst other things, they were looking for the cords from the CCTV system.
The search of the house was video recorded. Ms Kimmorley was advised of her arrested suspect rights under the Criminal Investigation Act (2006) WA. Ms Kimmorley was given the opportunity to contact a lawyer and she tried to contact Mr Ryan before the video was taken at the house, but he was unavailable. The search began and after various messages were left, she was apparently able to speak to her lawyer.[3]
[3] ts 42.
The police then took Ms Kimmorley to the Perenjori police station, and conducted the interview. The interview commenced at 1.07 pm and concluded at 2.37 pm.
The issue
The main issue exposed by the VROI is that Ms Kimmorley on numerous occasions answered questions using the expressions, 'don't recall', 'decline' or 'don't know.' The use of these expressions continued throughout the interview. There are some obvious examples where Ms Kimmorley was clearly asserting her right to silence (for example, by the use of 'decline'). The prosecution pointed out examples during oral submissions and has accepted it would not oppose editing to exclude such parts.[4] On other occasions, although Ms Kimmorley used the words, 'don't recall' or 'don't know', it is apparent that she was attempting to exercise her right of silence.
[4] ts 78 ‑ 81.
Ms Kimmorley's manner of answering led to some debate as to the course I should take on this application. On one level, it would be necessary to make a separate assessment and determination for each occasion on which those words were used. After some discussion, the parties submitted that the application was most sensibly addressed by the court determining the position as to voluntariness and fairness and providing some guidance as to the use of 'don't recall', 'decline' or 'don't know'. Then, if the VROI was not excluded as a whole, the parties should be in a position to confer and agree as to the excision of parts of the interview. Whilst I have reservations that such an approach leaves matters outstanding, I have decided to proceed on the basis suggested by counsel. The parties can approach the court for further directions if required.
Voluntariness
Principles
The principles to be applied were not in dispute.
An admission is voluntary if it is made in the exercise of a free choice to speak or remain silent and not because the will of the accused has been overborne. In Pearce v The State of Western Australia, McLure P said:[5]
The rationale for the exclusionary rule is the potential unreliability of the admission and the common law privilege against self‑incrimination. However, when considering whether an admission is voluntary the court does not attempt to determine the actual reliability of the admission. Rather, it assesses the nature and effect of any inducement or pressure to make the admission in order to determine whether it was made because the will of the accused was overborne by the conduct of a person or persons in authority: R v Swaffield [13].
An accused's will may be overborne as a result of conduct that includes the promise of advantage, threat of harm, duress, intimidation, persistent importunity or sustained or undue insistence or pressure. R v Lee (144)
Whether an accused’s will is overborne is to be determined by reference to his or her personal circumstances including age, background and psychological condition: Swaffield (169 ‑ 170).
[5] Pearce v The State of Western Australia [2014] WASCA 156 [35] ‑ [36] (citations omitted).
The question of voluntariness is to be considered by reference to the effect of police conduct in all the circumstances on the will of the accused person. It is not to be assessed by the propriety or otherwise of the conduct. The propriety of police conduct goes to the discretion to exclude a statement that was made voluntarily.[6]
[6] The State of Western Australia v Gandy [No 2] [2015] WASC 386 [70].
The onus is on the State to prove voluntariness on the balance of probabilities.[7]
[7] Pearce v The State of Western Australia [33].
In the absence of evidence to the contrary, it is presumed that an admission against interest was made voluntarily. However, if there is evidence which casts doubt on the voluntariness of the statement, the State must prove on the balance of probabilities that the statement was made voluntarily.[8]
Ms Kimmorley's contention
[8] The State of Western Australia v Silich [2011] WASCA 135 [47].
Ms Kimmorley says that her will was overborne by the persistent questioning by interviewing officers even after she had informed them that she did not wish to answer their questions or take part in the interview.
Demeanour
I have watched the VROI on several occasions. The following impressions of Ms Kimmorley are based on those viewings.
Ms Kimmorley is aged around 47 and carried on the business of the Perenjori IGA Express in partnership with her partner. There is no evidence or suggestion of any mental illness or difficulties with language.
Ms Kimmorley is clearly intelligent and capable, and was well able to consider her interests. She showed insight into those questions which may have invited self-incrimination. This is reflected in the manner in which having declined to answer a series of questions, she would then freely answer questions on a different topic. For example:[9]
DET POWER: Okay. So the fourth, which was a Monday, say from, um, 5:00 pm through to 1:00 am on the Tuesday. So that, um, eight hour period. Can you please tell me your movements?
KIMMORLEY: Nah, sorry.
DET POWER: Okay.
KIMMORLEY: Decline.
DET POWER: No worries. Um, with regards to the IGA store, um, who’s the owner of that?
KIMMORLEY: Myself and my partner, Peter.
[9] VROI ts 4.
Ms Kimmorley also challenged Detective Keals on occasion as to things that he said[10] and engaged freely in debate about whether an extract from Facebook was artificially confined by the police.[11] She was forthright. She did not give any indication of being overwhelmed or overborne by the process. She was engaged in the interview process.
[10] VROI ts 43.
[11] VROI ts 31 - 32.
Ms Kimmorley gave no indication of not wishing to take part in the interview. She did not say as much to the police. She did indicate that she did not wish to answer certain questions: this is dealt with more fully below. Despite such indications, she readily answered other questions and continued to participate in the interview without complaint or protest.
Ms Kimmorley relies on the following exchange at the end of the interview as suggesting she was intimidated:
DET POWER: Yep. Um, any complaints about the way you have been treated today?
KIMMORLEY: No. It's alright. Look, as I have said all along, this is new to me. Um, and it is very scary and very abnormal. Yes, I do find, and this is not offensive to you or Craig, you are very nice. You have both been very nice to me. But I do f-, like, I do feel threatened. I will be honest. You both do scare me. I find you both very intimidating. And that is not an insult or a nasty thing in any way. So, yes, but no I don't have any complaints.
DET POWER: But we have been nice?
KIMMORLEY: You have been very ---
DET POWER: [indistinct]
KIMMORLEY: You have been very honest to me in the whole, during the whole, since I met you unfortunately. And it is unfortunate that I have met you on these circumstances. I'd
DET POWER: Yeah. Now, and I can see how it might seem that way.
KIMMORLEY: Mmm.
DET POWER: If, if we did, um, it certainly wasn't on purpose.
KIMMORLEY: No, I know.
DET POWER: But, you know, you know it is our job to ---
KIMMORLEY: That's fine. And I have said ---
DET POWER: To, to challenge -
KIMMORLEY: That -
DET POWER: To challenge things, so ------
KIMMORLEY: You do.
DET POWER: Yeah.
KIMMORLEY: And I mean like I have said to you all along.
DET POWER: Mmm.
KIMMORLEY: Um, that you have got a job to do and I did say that again to you today. Both of you were over at the house when I think you were apologising for the way things had to be done. I actually said, and I agreed with both of you that you actually do have a job to do. [12]
[12] VROI ts 60.
Having viewed the VROI, I do not perceive in that exchange any serious allegation of intimidation, in the sense that term is used when considering conduct that denies voluntariness or fairness. Ms Kimmorley did not explain what she meant by that expression. It has to be read with the statements that the police had been very nice to her and that she had no complaints. I have no doubt that being charged and interviewed by two detectives was of itself a daunting and unfamiliar process for Ms Kimmorley, as it would be for many accused, but Ms Kimmorley does not exhibit signs of intimidation that rise to a denial of voluntariness.
Reminders of right to silence
The detectives reminded Ms Kimmorley of her right to silence at the beginning and on several occasions during the interview:
(a)DET POWER: That's the criminal damage by fire offence that's been investigated, and that's what you're here arrested on suspicion of. Um, subsequent to that there was a claim made through GIO Business Insurance, um, and that claim, um, sus-, is also allegedly a fraudulent claim, um, committed, wh-, what we believe was potentially committed by you, so you're under arrest on suspicion of those two offences.
KIMMORLEY: Mmhmm.
DET POWER: Okay? Um, now your rights, just to reiterate them again. You're not obliged to say anything unless you want to.
KIMMORLEY: Mmhmm.
DET POWER: Um, and I know I said that to you back at your house, but what's your understanding of your rights at, at [indistinct] ---
KIMMORLEY: That I don't have to do anything or saying anything.
DET POWER: Yep. Um, if, if you do choose to say any comment, how's it being recorded?
KIMMORLEY: By, um, video or notebooks.
DET POWER: Yeah.
KIMMORLEY: Or [indistinct] written.
DET POWER: Yeah, yep.
KIMMORLEY: Mmm.
DET POWER: So this is recording right now, urm.
KIMMORLEY: Mmm.
DET POWER: The only, only thing that we do is do, from here, or say from here, is actually being electronically recorded.
KIMMORLEY: Mmhmm.
DET POWER: Um, you've been given your right to contact a lawyer, which you have done.
KIMMORLEY: Mmhmm.
DET POWER: Um, so is it right that you've been given some advice, you don't have to tell us what that is, but ---
KIMMORLEY: Yes,
DET POWER: You've been given some advice. No worries. So what Craig and I wanna do now, um, and just for the purpose of this video, my name's Jill Power, I'm from Geraldton Detectives, and probably off camera is Craig Cairns from Geraldton Detectives. Um, we wanna give you the opportunity to, um, oh, I wanna put the allegations to you, and I wanna ask you about the, um, the two offences that, that I've already said. Um, it's up to you whether you wanna talk or not. But what I'll firstly do is just, Helen, get you to tell me about your involvement in the fire at the IGA store on the 5th of April. [13]
(b)DET POWER: Okay. Um, do you remember what you told me?
KIMMORLEY: Don't recall.
DET POWER: Okay. Um, i-, in regards to saying don't recall, that's absolutely fine, I take it you just don't wanna answer? Um, do you have any issues with your memory or anything like that?
KIMMORLEY: Not, look, I'm gonna decline that, because whatever I say can be twisted or taken the wrong way. So I'm not gonna take that risk.
DET POWER: No problem, nah, that's fine. Um, again, don't have to answer anything, but have you got any, um, health issues that affect your general health? Or may affect your memory or?
KIMMORLEY: Decline at this stage.[14]
(c)DET POWER: Okay. Um, and then, Helen, can you, it's up to you whether you answered anything, obviously, but, um, are you able to describe to us how you submitted your, um, insurance claim?[15]
(d)DET POWER: Bearing in mind you don't have to answer any questions, can you explain what you're doing? [in photo] [16]
[13] VROI ts 2 – 3.
[14] VROI ts 15.
[15] VROI ts 17.
[16] VROI ts 39.
Ms Kimmorley also said she had received some advice preceding the interview as to her right to refrain from answering. The exchange was as follows:[17]
[17] VROI ts 4 - 5.
DET POWER: Okay. So from the fourth, which was a Monday, say from, um, 5:00 P-M through to 1:00 A-M on the Tuesday. So that, um, eight hour period. Can you please tell me your movements?
KIMMORLEY: Nah, sorry.
DET POWER: Okay.
KIMMORLEY: Decline.
DET POWER: No worries. Um, with regards to the IGA store, um, who's the owner of that?
KIMMORLEY: Myself and my partner, Peter [indistinct].
DET POWER: Yep. Um, and what's the, oh, on the other, um, camera, I asked you the business name and everything, so I'm happy that I do know that.
KIMMORLEY: Mmhmm.
DET POWER: Um, so on the Monday the 4th of April, um, did you work at the store that day?
KIMMORLEY: Yes.
DET POWER: Okay, and what time did you finish?
KIMMORLEY: Oh, decline.
DET POWER: Okay. Um, alright, and is it right that you live, um, right next door to the store?
KIMMORLEY: Yes.
DET POWER: Okay. Um, on that afternoon, so Monday the 4th of April, um, who was home at your home address?
KIMMORLEY: Nah, decline.
DET POWER: Yep, no worries, so no one was home or?
KIMMORLEY: During the day?
DET POWER: No, no, um, in the afternoon. So say after 5:00 P-M who was home?
KIMMORLEY: Oh, look I'm gonna, I've been advised not to say anything ---
DET POWER: Yeah.
KIMMORLEY: By my solicitor, so.
DET POWER: Yep.
KIMMORLEY: Yep.
DET POWER: I'll ask you questions ---
KIMMORLEY: Mmm.
DET POWER: Don't, don't feel bad that you're not answering, it's absolutely ---
KIMMORLEY: Mmhmm.
DET POWER: Fine.
KIMMORLEY: Mmhmm.
DET POWER: Absolute, I'll [indistinct], I'll still ask them, okay?
Having apparently received some advice, Ms Kimmorley chose to answer questions but did so giving the appearance she clearly understood she was able to decline to answer questions. That understanding is apparent from the fact she expressly declined to answer questions.
Accused cognisant of ramifications
Ms Kimmorley had an understanding of the ramifications that might flow from answering questions. On one occasion she said:[18]
I don't recall what the actual, I'm not, like, I'm not gonna sit here and say Peter said this, Peter said that, because I don't actually recall for word for word, so I'm not gonna incriminate myself and I'm not gonna incriminate Peter by giving you wrong information, or misleading information.
[18] VROI ts 26-27.
She also said:[19]
DET POWER: Okay. Um, do you remember what you told me?
KIMMORLEY: Don't recall.
DET POWER: Okay. Um, i-, in regards to saying don't recall, that's absolutely fine, I take it you just don't wanna answer? Um, do you have any issues with your memory or anything like that?
KIMMORLEY: Not, look, I'm gonna decline that, because whatever I say can be twisted or taken the wrong way. So I'm not gonna take that risk.
DET POWER: No problem, nah, that's fine. Um, again, don't have to answer anything, but have you got any, um, health issues that affect your general health? Or may affect your memory or?
KIMMORLEY: Decline at this stage.
Ms Kimmorley exercised her right to silence
[19] VROI ts 15.
There is no doubt that Ms Kimmorley elected to exercise her right to silence with respect to certain questions and lines of questions.
It is clear when watching the VROI that Ms Kimmorley uses the expression 'decline' by way of exercising her right to silence. She declines to provide an answer. Examples are included above. The prosecution is willing to edit passages where 'decline' is used in that manner.[20]
[20] ts 78 ‑ 79.
The issue arises not with the expression 'decline', but with the use of the words 'don't recall' or 'don't know', where depending on the context Ms Kimmorley may have been purporting to exercise her right to silence.
Ms Kimmorley's use of the expressions 'don't recall' or 'don't know' fall into two categories:
•an expression of failure to recall or lack of knowledge; or
•an incantation of an expression intended to signify a refusal to answer.
I have extracted in the schedules below various examples. Schedule A contains examples from the transcript of the VROI that in my view fall within category 1. Schedule B contains examples that I consider fall within category 2.
Categorizing the extracts is not feasible if reliance is placed on the transcript alone. However, a viewing of the VROI discloses speed of response, tone and emphasis such that Ms Kimmorley's intention is more readily discernible. For example, there are examples where she answers 'don't recall' almost instantly without pausing to reflect on the question, and in some cases cutting off the questioner. Those examples indicate a refusal to answer the question.
For each of the examples in schedule B, taking into account the short, emphatic and monotone response, I have no doubt that Ms Kimmorley was purporting to exercise the right of silence, regardless of her choice of words.
The selective manner in which Ms Kimmorley exercised the right reinforces my view that she understood full well that she was able to participate in the interview whilst maintaining the right to silence where she chose to do so, and tells in favour of the voluntariness of her participation.
Ms Kimmorley did not refuse to answer further questions
Ms Kimmorley points to a particular exchange as an indication by Ms Kimmorley that she did not wish to answer any more questions (and so, implicitly, she contends the interview should have been terminated).
That exchange is as follows:[21]
[21] VROI ts 7.
DET POWER: Yep. Um, if you were to lock up this door, let's say on a normal business day, what's your process to do that?
KIMMORLEY: I'll decline.
DET POWER: Okay. Um, and on the 4th of April when you closed up on that Monday afternoon, can you tell me wh-, what process you ---
KIMMORLEY: Nah.
DET POWER: Went through?
KIMMORLEY: No, I can't.
DET POWER: Okay. On that afternoon, on the 4th of April when you locked up the store, tell me what people had, um, keys to the store?
KIMMORLEY: No, decline.
DET POWER: Yep. Um, and how many locks are on the back door?
KIMMORLEY: Decline.
DET POWER: Yep. Okay. Um, just before we go is, is there any part of it that you do want to talk about ?
KIMMORLEY: No.
DET POWER: No worries. Okay, so you're, is it fair to say that you're aware that there was a substantial fire, um, in your store?
Detective Power was cross‑examined about that particular exchange, although without the benefit of viewing the VROI. It was put to her that she knew from that point on that Ms Kimmorley did not want to answer any questions at all but that she pressed on regardless. The exchange was as follow:[22]
Terry: And then you just continued to ask questions about the fire?---
Power: Yes. I suppose that's – you know, that's – I have to ask questions. But if I had of – and I'm speaking hypothetically, but if I had been told by Ms Kimmorley, "I do not want to do this interview, turn the camera off", you know, I can say that I would have done that. But she was answering some and not others. And that – that to me – look, I – well, my feeling that was that it was voluntary.
She knew what to say when she didn't want to answer questions and I respected that, except that I still have – had questions for her.
[22] ts 53.
Again, having had the benefit of reviewing the VROI, I do not perceive the exchange with Detective Power as an indication by Ms Kimmorley that she did not want to participate further in the interview at all or answer any further questions. When the topic changed, she immediately continued answering questions without complaint or protest. There was no pressuring or cajoling by the police for the interview to continue. On various occasions after that exchange, Ms Kimmorley was again reminded of her right to silence but continued to answer questions.[23]
[23] VROI ts 15, 17, 39.
Detective Power's evidence was consistent with the impression of Ms Kimmorley's approach to answering that I have gained from viewing the VROI.
Determination on voluntariness
Taking into account the above matters, I consider that Ms Kimmorley participated in the interview voluntarily. The prosecution has met the onus of establishing to the requisite standard of proof that it was made in the exercise of a free choice to answer or refuse to answer. I would not exclude the VROI in its entirety.
Unfairness
Useful authorities referring to the principles are collected by Corboy J in The State of Western Australia v Gandy [No 2]:[24]
[24] The State of Western Australia v Gandy [No 2] [78] ‑ [81] (citations omitted).
The High Court identified in Swaffield three categories of cases where a voluntary statement may nevertheless be excluded in the exercise of a trial judge's discretion:
(a)where it would be unfair to the accused to admit evidence of the admission;
(b)where evidence of the admission should be excluded on public policy grounds;
(c)where the prejudicial effect of the evidence outweighs its probative value.
Toohey, Gaudron and Gummow JJ explained in Swaffield that the purpose of the fairness discretion is to protect the rights and privileges of the accused person; the purpose of the discretion to exclude an admission on public policy grounds is to protect the public interest and the purpose of the discretion to reject evidence where its prejudicial effect outweighs its probative value is to guard against a miscarriage of justice [52].
Where an admission has been made voluntarily, it is for the accused to establish, on the balance of probabilities, that evidence of the admission should be excluded on the ground of unfairness. The issue in respect of unfairness is not whether the accused has been treated unfairly, but whether the reception of the admission would be unfair to the accused in the conduct of his or her trial: Van der Meer v The Queen. Further, as Hall J observed in The State of Western Australia v Smith:
Unreliability is an important factor in considering whether the discretion to exclude on grounds of unfairness should be exercised, but it is not the sole factor. Another basis for the exercise of discretion is if there has been some illegality or impropriety on the part of law enforcement officers: R v Swaffield. In considering whether to exercise the discretion, the public interest in placing otherwise relevant and admissible evidence before the jury is important.
Questioning by police is not to be regarded as unfair merely because it is persistent nor is there any impropriety in a police officer indicating that the truth of an answer is not accepted because it does not accord with earlier answers given by the accused or with what others have said …
Where a suspect during the course of an interview indicates a wish not to answer a question or to participate further in the interview, interviewing officers are entitled to ask further questions to clarify the accused's position [9] ‑ [11].
Hall J also noted in Smith that where an interview is both voluntary and reliable, an accused carried a high onus of establishing that there is unfairness that justified the exercise of the discretion to exclude. His Honour referred to R v Williams in support of that proposition.
Ms Kimmorley contends there was unfairness in that, 'it was improper and unfair for the police to persist with such an interrogation after the applicant had indicated that she did not wish to answer any more questions'.[25]
[25] Applicant's outline [34].
As indicated above, I do not consider Ms Kimmorley indicated a refusal to continue participating in the interview or a refusal to answer any further questions at all.[26]
[26] See above under 'Reminders of right to silence' and 'Ms Kimmorley did not refuse to answer further questions'.
Taking into account that she willingly continued to answer questions and her displayed ability to distinguish those questions she wished to answer and those she did not, I do not consider there was impropriety in the police questioning. Counsel for Ms Kimmorley referred to State of Western Australia v Smith,[27] noting by way of distinction that the questioning of Ms Kimmorley was not simply to clarify her position. I accept that is so, but I have already addressed why I do not consider the manner of questioning was such as to undermine the voluntariness of the interview. Nor do I consider the questioning - taking into account the repeated warnings and Ms Kimmorley's own participation - involved impropriety on the part of the police. The police were at all times polite and measured.
[27] The State of Western Australia v Smith [2010] WASC 279 [9] - [11].
During oral submissions, counsel for Ms Kimmorley also raised other conduct in support of the contention that the VROI should be excluded. That conduct was said to comprise phone conversations with the accused without her being cautioned, and a failure to tell Ms Kimmorley she should say 'no comment' if she did not wish to answer.
Detective Power was cross‑examined about her phone calls with Ms Kimmorley. I accept Detective Power's evidence. There is nothing in the evidence as to the phone calls that establishes improper conduct. It was necessary for the police to speak to Ms Kimmorley to arrange meetings. Counsel for Ms Kimmorley suggested Detective Power made comments in a phone call to the effect that Ms Kimmorley should confess to lighting the fire, a matter denied by Detective Power.[28] As at 7 April 2016, Detective Power had some concerns and was not sure whether she should treat Ms Kimmorley as a suspect, and she chose not to further question her over the phone. As at 8 April 2016, Detective Power had some suspicions because some things were not adding up. She said she did not specifically suspect her as at that date such that a caution was required, but she had suspicions and wanted to go over some inconsistencies with her in person.[29] Counsel made some attempt to suggest Detective Power pressured Ms Kimmorley over the phone by raising an issue as to her second son being taken away (it was said that Ms Kimmorley has a deceased elder son) but ultimately there was no evidence of any weight on that issue.[30] Clearly as at 8 April 2016 investigations were continuing, including seeking information from the CCTV technicians and the insurer. In the circumstances, I do not consider there was a failure to caution prior to 18 April 2016 such that there was any impropriety or unfairness on the part of the police.
[28] ts 44
[29] ts 45
[30] ts 68.
Nor do I consider it was incumbent on the police to advise Ms Kimmorley that she should say 'no comment' in order to exercise her right to silence. As appears from the above, Ms Kimmorley understood she could decline to answer questions and she refused to do so on many occasions.
Whilst I have carefully considered counsel's submissions, I do not consider there was anything untoward in the conduct of the police such that I should exercise my discretion to exclude the VROI, having regard to the principles summarised in Gandy and Smith.
The need to edit
However, although I decline to exclude the VROI, I accept Ms Kimmorley's submission that parts of the VROI should be edited and excluded.
Those parts of the VROI where Ms Kimmorley maintains her right to silence by declining to answer or by using the expressions 'don’t know' or 'don't recall' in the category 2 sense referred to above should be excluded from the VROI. The schedule B examples should provide a guide to the parties as to the manner in which Ms Kimmorley's use of the expressions 'don’t know' and 'don't recall' should be treated.
I acknowledge that the VROI contains admissions and that for the majority of the VROI any potential prejudice to Ms Kimmorley from the VROI does not outweigh its probative force. However, the position is different where Ms Kimmorley has in context refused to answer a question, by whatever expression she has chosen.
Schedule A
(a)DET CAIRNS: Then how much do you pay a month?
KIMMORLEY: Oh, there's several different payments so, don't recall. I can't give you those figures off the top of my head to be correct.[31]
[31] VROI ts 10.
(b)DET POWER: Okay. Um, now in relation to the store, um, are you able to tell me what kind of, um, status, or, ah, financial status that is at, at the moment?
KIMMORLEY: Stable.
DET POWER: Stable? Okay. Um, what's your kind of, um, what's the word for it, maybe profit every week?
KIMMORLEY: Don't recall.
DET POWER: Don't recall? Okay.
KIMMORLEY: Yeah, don't know that information off the top of my head.[32]
[32] VROI ts 6.
(c)DET CAIRNS: And how much did you have to borrow to …
KIMMORLEY: Don't recall.
DET CAIRNS: You don't know or, you just, you don't recall or you just don't know, or?
KIMMORLEY: Um, well, I'd have to look it up, I just don't have figures like that in my head.
DET CAIRNS: Okay. Roughly - - -[33]
[33] VROI ts 9.
(d)DET POWER: Alright. Um, do you know, off the top of your head, what your insurance claim value is?
KIMMORLEY: No.
DET POWER: Okay. No worries. Or what, um, even reg-, in regards to your policy, how much are you insured for?
KIMMORLEY: No idea. Don't recall, don't know. Okay.
DET POWER: Okay.
KIMMORLEY: I think Craig previously asked me about four times on the day, when you originally come over, um, how much we're insured for, and as I said to him, I do not know. I don't recall.
DET POWER: Okay, so if you don't know, that's different to I don’t recall. So if you don’t know, that’s fine.
KIMMORLEY: I don't know exact figure.[34]
[34] VROI ts 18. Other examples are at VROI ts 22 (number of times in touch with insurance company); VROI ts 42 (last time in the store).
Schedule B
(a)DET POWER: At the time of making that phone call, were you with anybody else?
KIMMORLEY: Don't recall.
DET POWER: Um, did you make any other phone calls once you realised the, the store - - -
KIMMORLEY: Don't recall.
DET POWER: Um, from, again, I'm going back to the time that the shop closed, so what I believe the time was when the shop closed. But from say, 5:00 P-M on the Monday afternoon until1:00A-M on the Tuesday morning, so through to the 5th of April, did you return inside the store?
KIMMORLEY: Don't recall.
DET POWER: Um, and I'll just ask you this, is it that you don't recall, or you don't wanna answer that question?
KIMMORLEY: Don't wanna answer that question.
DET POWER: Okay, yep, no worries. Um, to your knowledge, between those same times, did any other person enter your store?
KIMMORLEY: Don't recall.[35]
[35] VROI ts 8 - 9.
(b)DET POWER: And what time was Peter there from?
KIMMORLEY: Don't recall.
DET POWER: Okay. Can you tell me, ah, what you did that evening?
KIMMORLEY: Don't recall.
DET POWER: Um, on that evening, um, were you consuming alcohol - - -
KIMMORLEY: Don't recall.
DET POWER: Or drugs? Um, was there any other person that came to your house on that evening?
KIMMORLEY: Don't recall.[36]
[36] VROI ts 5 ‑ 6.
(c)DET POWER: Yep. So I mean to say who set the alarm?
KIMMORLEY: Don't recall.
DET POWER: Do you know was the alarm set that evening?
KIMMORLEY: Don't recall.[37]
[37] VROI ts 12.
(d)DET CAIRNS: Alright. And on this night, when the fire started, um, had you been drinking?
KIMMORLEY: Don't recall.
DET CAIRNS: Don't recall? Alright. Nah, all good.[38]
[38] VROI ts 17.
(e)DET POWER: So who was it that submitted the claim?
KIMMORLEY: Don't recall.
DET POWER: Do you know how the claim was submitted?
KIMMORLEY: Don't recall, no.[39]
[39] VROI ts 17.
(f)DET POWER: Hmhmm. Um, have you ever said to that person, or whoever you've been speaking to, mentioned the fact that it was being investigated by police?
KIMMORLEY: Don't recall.
DET POWER: Have you ever mentioned that it's suspected that it's - -
KIMMORLEY: Don't recall.
DET POWER: Not an accidental?
KIMMORLEY: Have you ever mentioned to the insurance company of the accelerant?
KIMMORLEY: Don't recall.
DET POWER: Have you, have you been asked those questions?
KIMMORLEY: Don't recall, I don't know, I don't recall.[40]
[40] VROI ts 22.
(g)DET POWER: Yep. So I'll go back to a question before, like, ah, has something happened, or did something happen on that day [indistinct]- -
KIMMORLEY: I don't recall.[41]
[41] VROI ts 30.
(h)DET POWER: Can you tell me what, what you're doing in this photo?
KIMMORLEY: Don't recall.[42]
[42] VROI ts 38.
DET POWER: Yep. Can you tell me what you were doing in that photo?
KIMMORLEY: I don't recall.
DET POWER: Did you pull the cables out of the hard-drive?'
KIMMORLEY: No.
DET POWER: Um, have you ever had any problems with your CCTV system that needed repair or maintenance?
KIMMORLEY: I don't recall.
DET POWER: That day, so, so on the, on the fourth, was there any issues with it as far as you knew?
KIMMORLEY: Don't recall.
DET POWER: Do you know if it was recording for the entire - - -
KIMMORLEY: Don't recall.
DET POWER: Okay. And is there any reason that you know of that, after this moment, 11:01 and eight seconds, that the CCTV system stopped operating?
KIMMORLEY: Don't recall. No.[43]
[43] VROI ts 40.
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