The State of Western Australia v Matheson - [2019] WADC 113

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- MATHESON [2019] WADC 113
CORAM:   HERRON DCJ
HEARD:   13 JUNE 2019
DELIVERED          :   9 AUGUST 2019
PUBLISHED           :   9 SEPTEMBER 2019
FILE NO/S:   IND 1904 of 2018
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
JOHN NEIL MATHESON

Catchwords:

Unrecorded admissions by accused to police officer in police station - Audiovisual recording equipment available - Accused voluntarily attending police station and making admissions to offences of sexual penetration without consent - No reports of allegations made at the time by complainants - No police investigation at the time - Whether grounds to suspect the accused had committed an offence - Whether reasonable excuse for failure to audiovisually record admissions - Whether discretion should be exercised to admit admissions - Section 118 and s 155 Criminal Procedure Act 2006

Legislation:

Criminal Procedure Act 2006 (WA), s 118, s 155

Result:

State not permitted to adduce evidence of unrecorded admissions

Representation:

Counsel:

Applicant	:	Ms Z M M Jenkins
Accused	:	Mr A P Tehan

Solicitors:

Applicant	:	State Director of Public Prosecutions
Accused	:	Tehan Legal

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

The State of Western Australia v Gibson [2014] WASC 240
Wright v The State of Western Australia (2010) 43 WAR 1; [2010] WASCA 199

HERRON DCJ:

Introduction

By indictment dated 21 January 2019 the accused, Mr Matheson, is charged with two counts of sexual penetration of SLE without her consent on a date unknown in December 2014 and a further count of sexual penetration without consent of CEJ on 3 November 2015.
On 5 November 2015, two days after the offending the subject of count 3 on the indictment is alleged to have occurred, Mr Matheson attended the Perth Police Station accompanied by a friend, JW. They informed a customer service officer that they wanted to report a sexual assault. The officer informed Constable Timothy Wicks of the matter who then spoke to Mr Matheson and JW, asking them to accompany him into a witness interview room.
Initially Constable Wicks thought that JW wanted to report a sexual assault against herself and that Mr Matheson was accompanying her for support. He therefore initially spoke to JW. JW informed him that Mr Matheson wanted to report two sexual assaults where he was the offender. Mr Matheson then confirmed that was the case. After Constable Wicks first sought advice from senior police officers who were his supervisors, he then proceeded to obtain details from Mr Matheson of the offences he said he had committed, including details of the two persons against whom he said he had offended. Despite having considered whether his interaction with Mr Matheson should be audiovisually recorded, Constable Wicks, on the advice of his supervising officers, decided against audiovisually recording the interview or conversation with Mr Matheson and JW. Instead, he took some brief handwritten notes from which he later produced a typed written incident report on the police computer system.
Mr Matheson disclosed or reported that he had on two separate occasions had sexual intercourse with a female without her consent. The first incident occurred in late 2014 in the Halls Head area and involved SLE with whom Mr Matheson was then in a relationship. The second incident occurred during the night on 2 November 2015 in Mount Claremont involving CEJ.
At the time Mr Matheson disclosed those matters to Constable Wicks, no allegations had been reported to police by either of the now complainants, or by anyone else. The first time a complaint was made to police was when CEJ reported the second incident to police on 13 March 2017. On 4 April 2017 she signed a statement. The allegations the subject of the first incident were not reported until SLE signed a police statement on 9 August 2017.
On 11 December 2017 Mr Matheson participated in an electronic record of interview in which he said he did not wish to make any comment in relation to the allegations made by SLE regarding the first incident and in relation to the allegations reported by CEJ regarding the second incident, he said that all contact between him and CEJ was consensual.
The State says that during the meeting with Constable Wicks, Mr Matheson made admissions that he had non‑consensual sexual intercourse with each of SLE and CEJ (the admissions).
Pursuant to s 118 of the Criminal Investigation Act 2006 (WA) (CIA), Mr Matheson objects to the admissibility of the admissions, insofar as they are an admission of non‑consensual sexual penetration of each of the complainants, because they were not audiovisually recorded as they ought to have been, the admissions being made, it is submitted, after there were 'reasonable grounds to suspect' that Mr Matheson had committed a relevant offence.
Further, Mr Matheson argues that there is no 'reasonable excuse' for the absence of an audiovisual recording of the admissions. Mr Matheson also argues that, having regard to the criteria in s 155(3) of the CIA, the court, if it forms the view that the admissions are not admissible, ought not to exercise its discretion to admit the evidence.
For the reasons which follow I am satisfied:
1.That when Mr Matheson told police of the matters said to constitute the admissions, he was relevantly a 'suspect' as defined in s 115 of the CIA.
2.What he said to Constable Wicks was an 'admission' as defined in s 118(1) of the CIA.
3.That the admissions were made after Constable Wicks had 'reasonable grounds to suspect' that Mr Matheson had committed a relevant offence.
4.That there is no 'reasonable excuse' for the absence of an audiovisual recording of the admissions for the purposes of s 118(3)(b)(i) of the CIA.
5.That the evidence of the admissions is therefore not admissible pursuant to s 118(3) of the CIA.
Further, pursuant to s 155(2) of the CIA I am not satisfied that the desirability of admitting the evidence of the admissions outweighs the undesirability of admitting the evidence and accordingly I order that the State be refused permission to lead the evidence of the admissions.

The evidence

First Class Constable Timothy Wicks

The only witness who gave evidence was First Class Constable Wicks. On 5 November 2015 he was performing front counter duties at the Perth Police Station when at about 1.00 pm he was informed by a customer service officer that there was a male and female waiting at the front counter who wished to report a sexual assault. He then met the two people and took them into the witness room. They introduced themselves as John Neil Matheson and JW.[1] On the basis of what he had been informed, Constable Wicks assumed JW was intending to report that she had been the victim of a sexual assault and that Mr Matheson was simply accompanying her for support. Initially JW did most of the talking. Mr Matheson was quite quiet. That reinforced Constable Wicks' assumption that it was JW to whom he needed to speak.[2]
[1] ts 15.
[2] ts 16.
Instead JW informed Constable Wicks that they were there so that Mr Matheson could report two sexual assaults in which he was the offender. Constable Wicks then spoke to Mr Matheson and confirmed that was the case.[3] At that point he asked Mr Matheson and JW if they would wait while he sought some advice from senior officers.[4]
[3] ts 16.
[4] ts 16.
Constable Wicks then left the interview room to speak to his direct supervisors, Sergeant Lammonby and Detective Sergeant Benson.[5] When he left the interview room to speak to his supervisors, Constable Wicks had not taken any specific details from Mr Matheson other than that he knew both of the victims and knew their details, but he did not obtain any further details at that time.[6]
[5] ts 16.
[6] ts 16.
At the time Constable Wicks had been a police officer for approximately 12 months. For the first five months as a police officer he was employed on the booze bus and was not involved in any audiovisual recording of persons. Before November 2015 he had worked for approximately six months at Perth and during that period had been involved in no more than 5 – 10 audiovisual recordings where a person had been arrested on suspicion of having committed an offence.[7]
[7] ts 27.
Constable Wicks was advised by one of his supervisors to obtain some more details from the accused about what he said occurred and to conduct checks on the police information holdings to see whether the incidents had been reported by either of the complainants.[8] After he returned to the interview room, Constable Wicks provided Mr Matheson with a police caution, informing him that he was not obliged to say anything unless he wished to do so and that anything he did say would be taken down in writing and may be used as evidence. Mr Matheson informed Constable Wicks that he understood what the caution meant but that he wanted to talk about what had happened.[9]
[8] ts 16.
[9] ts 16.
Constable Wicks explained that he gave the police caution because he had gone from believing that Mr Matheson and JW were there to report something as the victim of an offence to them wanting to report something where Mr Matheson was potentially an offender. At that point Constable Wicks did not know whether there had been any reports from the complainants and felt that it was best to caution Mr Matheson before proceeding to obtain the details.[10] Constable Wicks explained that he thought it was necessary to caution Mr Matheson because he needed to understand his right to silence and that he did not have to talk to the police if he did not want to. At that point he viewed Mr Matheson as potentially an offender and because of that, he considered he was required to inform Mr Matheson of his rights.[11] Constable Wicks could not recall whether he had discussed with his supervisors whether he should give a caution but he thought it was appropriate that the caution be given because Mr Matheson had informed him he knew the complainants and knew their details.[12]
[10] ts 16.
[11] ts 17.
[12] ts 17.
After Mr Matheson informed Constable Wicks he still wanted to talk about what had happened Constable Wicks asked him to tell him what had occurred. Mr Matheson provided Constable Wicks with details of two offences he said he had committed. The first one he said had occurred sometime in late 2014 but he could not recall the exact date. He said it occurred in Halls Head or Erskine. Mr Matheson said the person against whom he had offended was his partner at the time, SLE, but that the relationship had not progressed to a sexual relationship. Mr Matheson said that at the time of the offence he had decided that they should progress to a sexual relationship and he forced the complainant to have intercourse with him while she was telling him to stop. However, he did not. A short time afterwards the relationship ended. Mr Matheson believed SLE moved to Victoria.[13]
[13] ts 18.
When that information was provided Constable Wicks, in the presence of Mr Matheson and JW, searched the police computer system which matched SLE's details but there had not been a report about the matters reported by Mr Matheson.[14]
[14] ts 18.
Mr Matheson then provided details about a second incident which he said occurred on 2 November 2015, approximately three days before he came to the police station. Mr Matheson said the incident occurred at an address in Mount Claremont which was the address of a friend of his, a Mr Flynn. The complainant was CEJ. Mr Matheson reported that they had gone to the address together to take part in a fantasy sexual role playing scene that they had planned together. Prior to commencing the scene they had agreed on a series of rules regarding what would take place. Two of the rules were that they would use protection and that prior to penetration they would both pause and specifically consent at that time. Mr Matheson said that they worked their way through the scene but when it came to the time of penetration, he proceeded to penetrate CEJ without using protection and without obtaining her consent. CEJ then immediately used a safe word and he stopped penetrating CEJ. They then spoke with each other and later continued having sexual intercourse but with both parties consenting.[15]
[15] ts 19.
When Mr Matheson identified CEJ as the complainant in relation to that second incident, Constable Wicks, again in the presence of Mr Matheson and JW, checked the police computer system but no details of the incident had been reported to police.[16]
[16] ts 20.
Mr Matheson also showed Constable Wicks the messages on his mobile phone which he said came from CEJ where she was urging him not to speak to the police in relation to the matter.[17]
[17] ts 20.
Mr Matheson provided the date of birth of SLE. Constable Wicks was not certain whether he also provided the date of birth for CEJ.[18]
[18] ts 20.
Constable Wicks then again went and spoke to Detective Sergeant Benson about what he should do. Constable Wicks was advised that because neither of the complainants had reported an incident to police, Constable Wicks should compile a general information report to be left on the police computer system and to advise Mr Matheson that if either of the complainants reported the incidents, he would likely be spoken to again by police.[19] Constable Wicks then provided Mr Matheson with an incident report number.[20]
[19] ts 20.
[20] ts 20.
Constable Wicks was also informed by JW that Mr Matheson was going through counselling with SARC and with Headspace. They told him that they did not believe any further incidents would occur.[21] After they left the police station Constable Wicks compiled an incident report.[22]
[21] ts 20.
[22] Exhibit 2.
As I have earlier noted, Constable Wicks took contemporaneous notes[23] from which he compiled the incident report.[24] The notes read as follows:
[23] ts 22.
[24] Exhibit 2.
1300 hrs JMW
[DOB]
… Belmont.
John Matheson
4/2/94
… Halls Head
Monday
(Forced?) Karrakatta
10am – 12 noon CJ
26 yrs [phone number]
Planned a scene
Rules in advance
Use protection
Both agree to start. [DOB] CEJ
Immediately safe word – stopped immediately.
2nd incident - Approx 12 months ago.
[phone number]
…
[DOB SLE]
Forced onto her. In a relationship but not previously had intercourse victim objected and told him to stop throughout still in relationship for a couple months.
Halls Head
Victim now lives in Victoria.
~~Karrakatta~~ Mount Claremont
Incident 2/11/15 occurred @
RF
26 years
… Erskine
POI MDL 5890973
[phone number]
Incident 2/11/15 occurred.[25]
[25] ts 22.

Failure to audiovisually record the admissions

When Constable Wicks first discussed with his supervisors how he ought to proceed there was a discussion about whether the interaction should be audiovisually recorded. It was considered that if the police did not have reports from either of the complainants of the matters that Mr Matheson was going to tell the police about, audiovisually recording those details was not justified and so only a general incident report should be prepared.[26] On the second occasion when Constable Wicks discussed the matter with Detective Sergeant Benson after he had been provided with details of the complainants and what Mr Matheson had informed him, and after checks of the police computer system confirmed that no reports had been made by the complainants, the earlier advice to simply record the information on a general incident report was confirmed.[27]
[26] ts 25.
[27] ts 25 – 26.
Constable Wicks said that either an intelligence log or an incident report could have been completed but it was thought preferable to complete an incident report.[28] Constable Wicks explained that an intelligence log is used where there is a need to record something of interest which is generally more brief than an incident report. An incident report can have offences included in it and it can be turned into a criminal investigation incident report if necessary.[29]
[28] ts 26.
[29] ts 26.
Constable Wicks confirmed he was aware that when police interview someone in relation to a serious offence the interview should be audiovisually recorded. However, because of the advice he had received from his supervisors, which was to the effect that because police had not received reports from the complainants they were not technically investigating an offence, and that it was unnecessary to audiovisually record the interview, he did not.[30] Constable Wicks explained that he would have preferred to have recorded the interview with Mr Matheson because it provided additional corroboration of what Mr Matheson had said and was a better recording of what was said rather than him taking notes.[31]
[30] ts 26.
[31] ts 26 – 27.
Constable Wicks said that Mr Matheson initially reported the incident involving CEJ and then the incident involving SLE but when he compiled the incident report he set out the details in chronological order, not in the order in which Mr Matheson provided the details.[32]
[32] ts 21 – 22.
In cross‑examination Constable Wicks agreed that his entry in the incident report in relation to the incident involving CEJ in which Constable Wicks recorded that Mr Matheson said he had broken the rules by not wearing protection and not obtaining consent from the complainant before continuing were not reflected in his contemporaneous handwritten notes. He agreed he did not use the word 'consent' in his notes. Rather, his notes record 'both agreed to start'. He said that it was his recollection that when he compiled the incident report after Mr Matheson and JW left the police station that is what Mr Matheson said to him.[33] That by his notes Constable Wicks meant that they would both consent.
[33] ts 30 – 31.
Constable Wicks agreed that he did not record in his notes anything that JW said to him but it was his recollection that she informed him that Mr Matheson wanted to speak to police about two sexual assaults he had committed.[34]
[34] ts 32.
Constable Wicks said that when he first spoke to Detective Sergeant Benson and there was a discussion about whether the interview with Mr Matheson should be audiovisually recorded the view was that if reports had been received from either of the complainants then the matter should be handed over to the Sex Assault Squad involved in the investigation and the interview would then be audiovisually recorded. However, if there were no reports from either of the victims and there was officially no offence to investigate, the report of the incidents made by Mr Matheson should be recorded as a general incident report.[35]
[35] ts 33 – 34.
Constable Wicks agreed that he believed Mr Matheson was at that point potentially a suspect in an offence.[36] He also explained that people often come in to the Perth Police Station wanting to report things who are maybe suffering from poor mental health or there may be other considerations which reflect upon the truthfulness of the reports. However Constable Wicks appreciated the severity of what he was initially informed by Mr Matheson which is why he sought advice from his supervisors before proceeding further.[37] He first thought Mr Matheson was potentially a suspect when Mr Matheson informed him he wanted to report two incidents in which he was the offender. Although he did not have any details about what had happened and did not know what Mr Matheson was going to report, and although he determined Mr Matheson might be a suspect, he thought Mr Matheson might just want to talk about something and was not certain whether an offence had actually been committed at that point.[38] He said that this was not a situation with which he had previous dealt which is why he sought advice as to how he should proceed.[39] He explained his role working on the front counter was to take a statement from anyone who comes in to report a matter, either as a victim or a witness, which he initially believed to be the case.[40] It was unusual, given the severity of the alleged offences, to have someone walk into the police station to confess to such things.[41]
[36] ts 34.
[37] ts 34.
[38] ts 35.
[39] ts 35.
[40] ts 35.
[41] ts 36.

Constable Wicks said that to a large extent he did not ask any questions because he did not have anything to work with. He was simply letting Mr Matheson tell his story as he wanted to. Constable Wick's focus was mainly on getting down what Mr Matheson wanted to tell him.[42]
[42] ts 36.
Constable Wicks explained that at one point when Mr Matheson was telling him what had happened with CEJ Mr Matheson seemed embarrassed about what he was saying and also became upset and Constable Wicks had trouble hearing him. At that point JW spoke for Mr Matheson or clarified what he was saying.[43]
[43] ts 37.
Constable Wicks said that he did not question Mr Matheson about the issue of consent. He was primarily letting Mr Matheson tell him what he wanted to report.[44]
[44] ts 38 – 39.
When Constable Wicks spoke to Detective Sergeant Benson the second time and informed him of what Mr Matheson had reported, there was no further discussion about then proceeding to audiovisually record the admissions because Constable Wicks had been earlier advised that there was no need to and to simply create an incident report.[45]
[45] ts 40.
There were no other police officers in the room during the interview with Mr Matheson.[46]
[46] ts 41.
In re‑examination Constable Wicks said that when he started speaking with Mr Matheson he did not get the feeling that Mr Matheson was suffering from poor mental health and he had the impression that Mr Matheson was giving a coherent account of what he said had occurred.[47]
[47] ts 41.

Legislation

It is convenient to now set out the relevant statutory provisions.

Criminal Investigation Act 2006 (WA)

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.

The word 'suspect' is defined in s 115 to mean 'a person suspected of having committed an offence, whether or not he or she has been charged with the offence'.
The expression 'reasonably suspects' is defined in s 3 as having the meaning given by s 4. Section 4 states:
4.Reasonably suspects, meaning of
For the purposes of this Act, a person reasonably suspects something at a relevant time if he or she personally has grounds at the time for suspecting the thing and those grounds (even if they are subsequently found to be false or non-existent), when judged objectively, are reasonable.
By s 3 'offence' means any offence under a written law.
Section 6 states:
6.Other written laws, this Act’s relationship with
(1)Unless the contrary intention appears in this Act or another written law —
(a)this Act does not affect the operation of any other written law; and
(b)the powers conferred by this Act on a person are in addition to and do not derogate from any powers conferred on the person by any other written law.
…
(3)If a provision in this Act is inconsistent with a provision in another Act, the provision in the other Act prevails.
Section 155 of the CIA reads:
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.

Analysis

Criminal Investigation Act s 118(4)

It is first necessary to determine whether the admissions relied upon by the State are in fact an 'admission' as defined in s 118(1). That in turn involves a determination whether Mr Matheson was a 'suspect' as defined in s 115.
I am satisfied that once JW and Mr Matheson informed Constable Wicks that Mr Matheson wanted to report two incidents in which he had committed sexual offences against two women known to him, which caused Constable Wicks to then seek advice from senior police officers, during which consideration was given as to whether any further interaction with Mr Matheson should be audiovisually recorded, Mr Matheson was a 'suspect' because he was 'a person suspected of having committed an offence, whether or not he … has been charged with the offence'. Constable Wicks acknowledged that even before he was provided with details of the persons against whom Mr Matheson said he had sexually offended, he was talking about potentially serious offences. It follows that Mr Matheson was a 'suspect' as defined in s 115.
Because, by s 118(4), s 118(3) does not apply to an admission made by a person before there were reasonable grounds to suspect he had committed the offence, it is next necessary to determine whether Constable Wicks, or his superiors, had reasonable grounds to suspect Mr Matheson had committed an offence and, if so, when those reasonable grounds existed and when was the suspicion formed.
In my view the words 'the offence' in s 118(4) must refer to the 'indictable offence' referred to in subsection s 118(2)(b). Relevantly, in the circumstances of this case, the indictable offence is a serious sexual assault.
Although the expression 'reasonably suspects' is defined in s 4 of the CIA, the expression 'reasonable grounds to suspect' in s 118(4) is not defined. In my view nothing turns on the different expressions. It is clear from the wording of s 118(4) that the grounds for a person suspecting must, when judged objectively, be reasonable at the time of having grounds for suspecting the person has committed the offence.
As to the meaning of the expression 'to suspect' I adopt the observations of Hall J in The State of Western Australia v Gibson [2014] WASC 240 [38]:
… Suspicion is a state of conjecture or surmise where proof is lacking. Facts which can be the basis of a reasonable suspicion may be insufficient to ground a belief. A suspicion must have some factual basis but it may be merely a positive feeling of actual apprehension or mistrust or a slight opinion without sufficient evidence to establish it: George v Rockett [1990] HCA 26; (1990) 170 CLR 104, 115. In South Australia it has been held that fairness will require a caution if the person's possible involvement in the crime remains under consideration, even though they may not be regarded as a suspect: R v Buetti (1997) 70 SASR 370, 378.
In my view once Mr Matheson had informed Constable Wicks he wanted to report two sexual assaults in which he was the offender and knew the persons against whom he had offended, which caused Constable Wicks to seek advice from his superiors and also caused Constable Wicks to believe it would be wise to audiovisually record what Mr Matheson wanted to tell him, and which further led to Constable Wicks providing Mr Matheson with a caution before Mr Matheson provided any further details, there were clearly 'reasonable grounds to suspect' that Mr Matheson had committed a relevant offence for the purposes of s 118(4). Certainly, as soon as Mr Matheson provided the details of CEJ, which Constable Wicks cross‑referenced on the police computer, and Constable Wicks believed Mr Matheson was giving a coherent account, there were then reasonable and credible grounds for suspecting Mr Matheson had committed a relevant offence. Although the offence to which Mr Matheson was confessing had not been reported by CEJ, and there were no reports on the police computer system of the alleged offending, in circumstances where Constable Wicks believed that what he was being told was credible and he considered it would have been wise to have audiovisually recorded what Mr Matheson wanted to tell him, there were reasonable grounds to suspect that he had committed the offence. In my view, at that point, Constable Wicks ought to have stopped Mr Matheson from reporting any further details to him and informed Mr Matheson that he wanted to audiovisually record any further details Mr Matheson wanted to provide. If Mr Matheson was not prepared to consent to an audiovisual recording of what he wanted to disclose, and Constable Wicks continued to take details from Mr Matheson, that might have formed the basis for there being a 'reasonable excuse' for the failure to audiovisually record the disclosures.[48]
[48] Definition of 'reasonable excuse' – s 118(1)(c) CIA.
I am satisfied that from the point in time when Constable Wicks returned to the interview room, after he had discussed how to proceed with his superiors, and Mr Matheson provided further details admitting to the offending against CEJ and SLE, there were 'reasonable grounds to suspect' that Mr Matheson had committed a relevant offence. I reject the State's submission that there were no reasonable grounds to suspect an offence of having been committed because there had been no formal reports to police of the offending by the complainants. Constable Wicks clearly thought that what Mr Matheson was about to tell him was credible, which is why the police caution was administered and Mr Matheson was informed of his right to silence. The police thought that what Mr Matheson was going to tell them was sufficiently serious that an incident report ought to be compiled so that if the complainants did later report the allegations the incident report could be used as a basis for contacting and again speaking to Mr Matheson. In my view it does not follow that simply because the persons against whom the offending is alleged to have occurred did not report the matters that there were no reasonable grounds to suspect a relevant offence had been committed. Notwithstanding the lack of any earlier reporting, in circumstances where Mr Matheson wanted to tell the police about matters which were believed to be sufficiently credible to warrant a police caution being administered, and for consideration to be given as to whether the interview should be audiovisually recorded, and where an incident report was created, there were clearly reasonable grounds to suspect Mr Matheson had committed an offence. Indeed, Constable Wicks accepted that as soon as he realised JW was not there to report an offence committed against herself, rather Mr Matheson wanted to report offences he had committed against two people known to him, he suspected Mr Matheson had committed those offences.
It follows that because there were reasonable grounds to suspect that Mr Matheson had committed an indictable offence of a serious sexual assault, and that Constable Wicks suspected Mr Matheson had committed a serious sexual assault, even though he had no other details at that point in time, Mr Matheson was 'a suspect' and any 'admission' made by Mr Matheson after that point in time ought to have been audiovisually recorded. At the least, the admissions made by Mr Matheson from the time he first informed Constable Wicks about the details of CEJ, ought to have been recorded.
Therefore, those admissions were not, for the purposes of s 118(4), made before there were reasonable grounds to suspect that Mr Matheson had committed a relevant offence. It therefore follows that s 118(3) applied to the admissions made by Mr Matheson.

Reasonable excuse – s 118(3)(b)(i) of the CIA

I then turn to consider whether pursuant to s 118(3)(b), there is a basis for ruling the admissions are admissible at the trial of the offences charged on the indictment. Dealing first with s 118(3)(b)(i) which reads:
(3)On the trial of the suspect for the offence, evidence of any admission by the suspect is not admissible unless –
…
(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
…
The onus is therefore on the prosecution to prove, on the balance of probabilities, that there is a reasonable excuse for the absence of an audiovisual recording.[49]
[49] Wright v The State of Western Australia (2010) 43 WAR 1 [52] (Blaxell J); [2010] WASCA 199.
The State submits that there was a 'reasonable excuse' for the absence of an audiovisual recording because:
(a)Mr Matheson attended the police station of his own volition and made admissions in relation to the sexual assaults against each of the complainants and a check on the police computer system did not reveal that any complaint had been made;
(b)the accused was cautioned that he did not have to say anything and that anything he did say could be taken down and used in evidence against him; and
(c)the accused then made admissions of his own free will choosing to speak because he may have been suffering from a guilty conscience which he wished to assuage by confessing to police.[50]
[50] State's written outline of submissions, par 4.
The expression 'reasonable excuse' is defined in s 118(1) as:
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.
The definition is an inclusive definition, it is not an exhaustive definition. The State does not rely upon any of the paragraphs of the definition of 'reasonable excuse' as the basis for establishing there was a reasonable excuse for the absence of an audiovisual recording.
I reject the State's submissions. In my view there is no reasonable excuse for the failure to audiovisually record the interview with Mr Matheson from the time Constable Wicks returned to the interview room after he had discussed how to proceed with his superiors. Audiovisual recording equipment was readily available at the Perth Police Station. There is no evidence to suggest that audiovisually recording the further interaction with Mr Matheson could not have been easily arranged. Constable Wicks could easily have asked Mr Matheson whether he consented to an audiovisual recording being made of what he wanted to disclose to police. He chose not to do that because of the advice or instruction he had received from his supervisors. Despite that advice Constable Wicks believed it would have been preferable to audiovisually record the interview with Mr Matheson. He believed that even though there had been no formal reporting of the allegations by either complainant.
I make no criticism of Constable Wicks for proceeding as he did. He was a young, relatively inexperienced police officer. He sensibly sought the advice of his superior officers. Despite his misgivings he was only following their instructions. Regrettably and unwisely his superior officers did not consider it necessary and did not direct Constable Wicks to audiovisually record the further interaction with Mr Matheson. In my view the interview with Mr Matheson after Constable Wicks had returned to the interview room should have been audiovisually recorded. At the very least Mr Matheson should have been informed that police wanted to audiovisually record anything further Mr Matheson wanted to tell the police. If Mr Matheson said he did not want to be audiovisually recorded but still wanted to talk to the police officers that may have provided the basis for there being a 'reasonable excuse' for the absence of an audiovisual recording. However that did not happen. It would have been a simple thing to inform Mr Matheson of that, particularly in circumstances where he was given a police caution.
While I accept that Mr Matheson attended the police station of his own volition and voluntarily made admissions in relation to sexual assaults committed by him, after he had been cautioned that he did not have to say anything, that, in my view, does not provide any basis for concluding there was a reasonable excuse for the absence of an audiovisual recording. While I can perhaps understand, in circumstances where there had been no formal reporting of the allegations by either of the complainants, and there was no police investigation, and police had not arranged to interview Mr Matheson, why a decision was made not to audiovisually record the meeting, I do not accept that is a reasonable excuse for the failure to audiovisually record the meeting with Mr Matheson. If the police thought the disclosures made by Mr Matheson was sufficiently serious and credible that an incident report should be prepared, they should have audiovisually recorded what was disclosed. Constable Wicks said that an incident report can be turned into a criminal investigation report if necessary.[51] That is particularly so in circumstances where police now seek to rely upon the admissions against Mr Matheson in the prosecution of the offences against him on the indictment. They have turned the incident report into an investigation report.
[51] [27] above.
In summary, there is no reasonable excuse for the failure to audiovisually record the admissions made by Mr Matheson.

Section 155 of the CIA – discretion to admit inadmissible evidence

I now turn to consider whether, pursuant to s 118(3)(b)(ii), I may nevertheless decide to admit the evidence of the admissions on the basis that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence pursuant to s 155 of the CIA. In making that decision I am required to take into account the considerations set out in s 155(3) as follows:
155.Inadmissible evidence, court may allow admission
…
(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.

Part of the reason for the requirement to audiovisually record admissions made by suspects is to ensure the reliability of what has occurred between a suspect and police and what a person has told police officers. The purpose of s 118 is intended to prevent arguments about what was and was not said and the context in which someone has said things and whether they are in fact admissions.
As Blaxell J in Wright v The State of Western Australia [137] said:
In this regard, the text of the Act and its legislative history point towards the purpose of encouraging the audiovisual recording of admissions, and of expanding (not restricting) the circumstances in which such recordings should occur (Carr (at [56])). A wide construction of the definition also promotes the underlying policy of minimising the opportunities for police 'verballing'.
Constable Wicks said he would have preferred to have recorded the interview because it was a better recording than his notes and provided corroboration of what was said.[52]
[52] [29] above.
A further purpose of s 118 is also to reduce issues arising regarding the voluntariness of any admissions made by a suspect.
In this case although there is no issue that Mr Matheson voluntarily attended the police station, spoke to Constable Wicks and informed him of his interactions with each of the complainants, there is an issue regarding the reliability of some of what Constable Wicks said he was told by Mr Matheson. In particular there is a challenge to the reliability of what was recorded by Constable Wicks regarding the issue of consent. Defence counsel points to the failure in Constable Wicks notes to record any reference to Mr Matheson having intercourse without the complainants' consent and contrasts that to the entries in the incident report which do refer to Mr Matheson having intercourse without consent.[53] Defence counsel also points to the evidence of Constable Wicks that at one time when Mr Matheson seemed embarrassed about what he was saying and became upset JW spoke for Mr Matheson and clarified what he was saying, which is a further matter relevant to the reliability of what Constable Wicks said Mr Matheson told him.[54]
[53] ts 70 – 72.
[54] [36] above.
I accept these matters do raise serious issues regarding what was said by Mr Matheson in relation to consent which will be the central issue at trial.
The State submits that the meeting with Mr Matheson was not so much a police interview with him as a meeting at his request to allow him to provide information he wanted to disclose. Constable Wicks was simply recording what Mr Matheson wanted to tell him. Constable Wicks was not interviewing him because he was not questioning Mr Matheson or putting propositions to him because he did not have any information to go on from which he could question Mr Matheson. Constable Wicks was simply recording the information with a view to creating a record to be kept on the police database for future purposes if it later became necessary to access the information.
Turning to consider each of the matters set out in s 155(3). In relation to s 155(3)(a) Mr Matheson does object to the evidence of his admissions being adduced at the trial.
In relation to s 155(3)(b) Mr Matheson has been charged with serious sexual assault offences. The counts on the indictment are allegations of sexual penetration without consent. If Mr Matheson is convicted of either of the offences the likelihood is he will be sentenced to a term of immediate imprisonment, although such an outcome is not inevitable.
Turning then to s 155(3)(c) and the seriousness of the contravention of s 118. As I have earlier explained, I accept it is perhaps understandable why senior police officers instructed Constable Wicks that it was unnecessary to record his meeting with Mr Matheson given there had been no report of the allegations about which Mr Matheson wanted to confess and the police, at least initially, were uncertain of what Mr Matheson wanted to inform them. However, it quickly became apparent that Mr Matheson was admitting to serious sexual offending against two women. Constable Wicks thought the information Mr Matheson was providing was credible. Unlike his superiors, Constable Wicks had certainly turned his mind to the need to audiovisually record his interaction with Mr Matheson. Constable Wicks thought the situation was sufficiently serious that he ought to administer a police caution to Mr Matheson. As I have earlier found, as soon as it became apparent that Mr Matheson was providing credible information about serious sexual offending, before anything further was said, Mr Matheson should have been informed that police wanted to audiovisually record anything further he wanted to say or admit to. Constable Wicks' superiors thought the matter was sufficiently important or serious that an incident report should be prepared. Constable Wicks accepted that an incident report can become an investigation report, which of course is what has happened in this case. Despite deciding against the need to audiovisually record the meeting with Mr Matheson when they had the opportunity to do so, the police, having since charged Mr Matheson with the offending he voluntarily disclosed, now seek to rely upon the admissions purportedly made by Mr Matheson when he met with Constable Wicks.
As I have found, the police's failure to audiovisually record the meeting with Mr Matheson was in contravention of the CIA. Although that contravention was not for any improper purposes, it was still a deliberate contravention of the CIA. In my view, in all of the circumstances, it was a serious contravention.
I then turn to consider s 155(3)(d). As I have just found the contravention of the CIA was intentional. It did not arise from an honest and reasonable mistake of fact. The contravention of the CIA by failing to audiovisually record the admissions made by Mr Matheson arose from a deliberate decision which was made on the basis that it was unnecessary to audiovisually record the admissions because there was not then a police investigation into Mr Matheson nor any reports of the allegations made by the complainants. Constable Wicks certainly turned his mind to the need to audiovisually record the meeting with Mr Matheson, but a decision was made by his supervisors it was unnecessary.
In relation to s 155(3)(e) the probative value of the evidence of the admissions is high. If Mr Matheson did admit to sexually penetrating two women without their consent that is a significant admission. However, the State also relies upon evidence of other purported admissions made by Mr Matheson in online conversations with various people who are apparently part of a BDSM community.
The State will also of course rely upon the evidence of each of the complainants to establish what it will allege (and must prove beyond reasonable doubt), is the absence of consent to the sexual penetration.
By s 155(4) the probative value of the evidence of the admissions does not by itself justify the admission of the evidence. I am not persuaded that the probative value of the evidence, particularly having regard to the other evidence upon which the State intends to rely at trial, is such that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.
I am not persuaded I should exercise my discretion to admit the evidence of any admissions made by Mr Matheson when he spoke to Constable Wicks. In circumstances where the police believed Mr Matheson was giving a credible and coherent account of serious sexual offending committed by him and when police had the opportunity to record those admissions but deliberately chose not to, I am not persuaded that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence. It is undesirable to admit the evidence where there has been a deliberate contravention by the police of the requirements to audiovisually record any admissions. It is undesirable to permit the State to lead evidence obtained in deliberate contravention of the CIA. It is undesirable to permit the State to lead evidence that police took seriously enough to create an incident report which they acknowledged could be turned into an investigation report, in which they have now turned into an investigation report, but deliberately chose not to audiovisually record the admissions. It is also undesirable to admit the evidence when there is a challenge to the reliability of what was recorded by Constable Wicks regarding the issue of consent. In circumstances where I am satisfied the police could readily have, and ought to have, audiovisually recorded their interaction with Mr Matheson, I am not satisfied that the desirability of admitting that evidence outweighs the undesirability of admitting the evidence. Although I accept the State's submissions that the admissions were not made during a formal interview and Constable Wicks was simply recording what Mr Matheson was telling him, and was not eliciting information from questioning Mr Matheson,[55] that does not alter the requirement to audiovisually record the admissions.
[55] [73] above.
Accordingly, I decline to exercise my discretion to admit the evidence of the admissions pursuant to s 155 of the CIA.
I dismiss the State's application to lead the evidence of the unrecorded admissions as particularised at [7] above made by Mr Matheson to Constable Wicks on 5 November 2015 which were not audiovisually recorded.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KG
Associate to Judge Herron
8 AUGUST 2019