The State of Western Australia v May
[2011] WASC 365
•6 DECEMBER 2011
THE STATE OF WESTERN AUSTRALIA -v- MAY [2011] WASC 365
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 365 | |
| Case No: | INS:14/2011 | 27-28 JULY & 7 SEPTEMBER 2011 | |
| Coram: | JENKINS J | 6/12/11 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Evidence of conversation with undercover police officer excluded | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA DANIEL PETER MAY |
Catchwords: | Criminal law Evidence Judicial discretion to admit or exclude evidence Alleged admissions made by an arrested suspect to undercover police officer Audio of conversation secretly recorded, but no visual recording Alleged admissions elicited by undercover police officer |
Legislation: | Criminal Investigation Act 2006 (WA), s 154 |
Case References: | Pavitt v The Queen (2007) 169 A Crim R 452 R v Herbert [1990] SCR 151 R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396 Wright v The State of Western Australia [2010] WASCA 199 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
DANIEL PETER MAY
Respondent
Catchwords:
Criminal law - Evidence - Judicial discretion to admit or exclude evidence - Alleged admissions made by an arrested suspect to undercover police officer - Audio of conversation secretly recorded, but no visual recording - Alleged admissions elicited by undercover police officer
Legislation:
Criminal Investigation Act 2006 (WA), s 154
Result:
Evidence of conversation with undercover police officer excluded
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Category: B
Representation:
Counsel:
Applicant : Mr J Mactaggart
Respondent : Mr S Vandongen SC
Solicitors:
Applicant : Director of Public Prosecutions (WA)
Respondent : Legal Aid (WA)
Case(s) referred to in judgment(s):
Pavitt v The Queen (2007) 169 A Crim R 452
R v Herbert [1990] SCR 151
R v Swaffield [1998] HCA 1; (1998) 192 CLR 159
Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396
Wright v The State of Western Australia [2010] WASCA 199
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1 JENKINS J: (These reasons were delivered orally and have been edited from transcript.) Daniel Peter May applied to have the audio record of a conversation between him and an undercover police officer at the East Perth lockup on 14 February 2010 declared inadmissible in evidence at his trial on, what was then, a charge of murder. Whilst the application was framed in those terms, in reality the application was to have both the audio recording of the conversation and any oral evidence as to the contents of that conversation excluded from evidence.
2 I allowed the application and said that I would deliver my reasons at a later date. These are my reasons.
3 The grounds of the application were that in the exercise of my discretion I ought to exclude evidence of the conversation because it would be unfair to admit it and it would be contrary to public policy to admit it. Before setting out my reasons for decision I will set out some uncontentious matters.
Legal principles related to admissibility of admissions in general
4 The Criminal Investigation Act2006 (WA) (the Act) governs the interrogation of suspects in Western Australia. If there is a contravention of the Act in the purported exercise of a power by a police officer, any evidence, including evidence of admissions, derived by the exercise of that power is inadmissible: The Act s 154. Notwithstanding the breach, a judge may admit such evidence if the desirability of admitting it outweighs the undesirability of admitting it.
5 If alleged admissions were made voluntarily and not obtained in breach of the Act they are admissible, subject to the common law discretion to exclude evidence. Mr May did not assert that his alleged admissions made during the conversation were inadmissible because they were not made voluntarily, rather he relied on the common law discretion to decline to admit otherwise admissible evidence. The discretion might be exercised for reasons of impropriety (otherwise known as the policy discretion), unfairness or lack of probative value: Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396 [245] - [248]; R v Swaffield [1998] HCA 1; (1998) 192 CLR 159. Because the evidence is otherwise admissible the party seeking the exercise of the judge's discretion to reject the evidence carries the burden of persuasion. In Wright v The State of Western Australia [2010] WASCA 199 [115], Blaxell J set out the relevant common law principles in the following terms:
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- Once the prosecution proves that a confession was made voluntarily, it is prima facie admissible. The onus is then on the accused to establish on the balance of probabilities a 'substantial reason' why the confession should be excluded in the exercise of the court's discretion (Lee (152 - 154)). There are three possible bases for a discretionary exclusion of a voluntary confession. These are that it is unfair to the accused to admit the confession, that public policy considerations make admission of the evidence unacceptable, or that the prejudicial effect of the statement outweighs its probative value (R v Swaffield (1998) 192 CLR 159 [51]). The focus of the unfairness discretion is on the rights of the accused whereas the public policy discretion is concerned with matters of public interest. The third discretion focuses on the probative value of the evidence and guards against a miscarriage of justice (Swaffield [52]). Depending upon the particular circumstances, these various considerations may well overlap (Swaffield [74]).
6 His Honour went on to discuss these principles in more detail in the following paragraphs. I will not quote his Honour in full but I rely upon and apply the principles which he outlined between [111] - [117]. I now turn to the facts of this case.
Factual context
7 It is common ground that on 24 January 2010 Alessio Di Risio was found dead in his unit in Tuart Hill. His father had been trying unsuccessfully to enter the unit since the previous evening. A post-mortem report states that the cause of death was multiple sharp force injuries. These were stab wounds to the deceased's head, neck, chest, limbs and back. Mr May's cousin, Stephen Freeman, subsequently pleaded guilty to murdering Mr Di Risio. At the time the application was made to exclude the evidence of the conversation between Mr May and the undercover police officer, Mr May had also been charged with murder, he had indicated a plea of not guilty, and the question for the jury at trial would have been whether he was a party to the murder.
8 On the afternoon of 23 January 2010, the three men were drinking alcohol together. Mr Di Risio returned to his unit. In his own nearby unit Mr Freeman dressed himself appropriately for a murder. This involved putting on overalls and other items which could be washed or disposed of after becoming bloodied.
9 Having done this, he went to Mr Di Risio's unit. Mr Freeman then repeatedly stabbed Mr Di Risio. At least two knives were used to inflict a total of 21 stab wounds. After the fatal injuries were inflicted the scene was cleaned up in an attempt to destroy evidence.
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10 On 27 January 2010, Mr May made a written statement in which he said that the last time he had seen Mr Di Risio was when he left his (Mr May's) unit at about 8.00 pm or 8.30 pm on 23 January 2010.
11 On 14 February 2010, Mr May was arrested. At about 8.47 am that day he became an arrested suspect for the purposes of the Act. That entitled him to certain protections and rights which are outlined in that Act.
12 Mr May took part in two audio visually recorded interviews with the police. The first interview commenced at 10.13 am and concluded at 2.48 pm. The second interview commenced at 3.50 pm and concluded at 4.45 pm. At the start of the first interview, Mr May was given the standard caution. He was reminded of the caution at the start of the second interview. Both interviews were conducted in compliance with the statutory and common law requirements.
13 In the second interview, Mr May told the police that he and Mr Freeman went to the home of Mr Di Risio on the evening of 23 January. He said they were drinking together and he went outside to get some fresh air. He said that was when Mr Freeman must have killed Mr Di Risio. As the investigating officer said in evidence before me, Mr May did not say anything during that interview which in the investigating police officer's view would have substantiated a charge of murder against Mr May.
14 Detective Cameron Western gave evidence on the voir dire which I held in order to determine the admissibility of the conversation between the undercover police officer and Mr May. He testified that on 14 February 2010, he was in charge of the investigation into the death of Mr Di Risio. After the second interview with Mr May concluded on 14 February 2010, he decided to look at utilising undercover operatives because he did not believe that Mr May had 'been completely forthcoming about his involvement' in the murder of Mr Di Risio.
15 Following the two formal interviews between the police and Mr May, Mr May was taken to the Perth police lockup and it was there that undercover operative 490 met him.
16 It was decided to put an undercover operative into a cell with Mr May and see if he made any admissions to the undercover operative. Detective Western did not brief the undercover operative or his handler. Detective Western said that, until it was brought to his attention during his evidence on the voir dire, he did not know that Mr May continued to be an
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- arrested suspect to whom the time and other provisions in the Act applied in the period between the end of the second interview and his appearance in court, the following morning, 15 February 2010. The parties agreed that Mr May was an arrested suspect for the purposes of the Act until that time.
17 Detective Western acknowledged that, prior to the undercover operative becoming involved, he knew that Mr May was a suicide risk. The watch-house records disclose that at the time Mr May was received into the watch-house he told the police that he was suicidal.
18 Covert operative 382 gave evidence on the voir dire that on 14 February 2010 he was a supervisor at the undercover police unit responsible for the deployment of undercover operatives. He was asked to provide an undercover operative for duty at the Perth police watch-house. The undercover operative was to be deployed into the cell of a person at the watch-house. He recalled operative 490 to duty and met him outside the watch-house at 7.00pm. By then operative 382 had a good knowledge of what the investigation related to. He understood that the purpose of the deployment of the undercover operative into a cell at the watch-house was to ascertain whether there was any other information about the investigation which could be gleaned by 'engaging' the person who was in the cell.
19 Clearly, the objective was to engage Mr May in the watch-house cell in conversation in the hope of obtaining information which may assist the investigating police officers, in particular in the hope of obtaining admissions from Mr May as to his involvement in the death of Mr Di Risio. Covert operative 490 gave evidence that after being briefed by operative 382 he was placed in an empty cell at the watch-house. Obviously, he was undercover.
20 After a short period, Mr May was also placed in the cell. This was some time after 7.00 pm that evening. Without Mr May's permission, undercover operative 490 made an audio recording of the conversation between himself and Mr May. No visual recording was made of the conversation. There was no evidence as to whether an audio visual recording could have been made of the conversation or why one was not made. It is, of course, a requirement of the Act that when a suspect is interviewed by the police an audio visual recording is made of the interview unless there are good reasons why that cannot occur. I will shortly refer to the contents of the recorded conversation.
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21 In a further interview with the police on 17 February 2010, Mr May denied having been at Mr Di Risio's home at the time of the murder. He said he had been at the deceased's home when he was still alive. He said that he had drunk a lot of alcohol and had then gone home and gone to bed. He said that he did not see his cousin, Mr Freeman, until after the murder.
Contents of the conversation between Mr May and the operative
22 The audio recording and evidence of undercover operative 490 satisfies me that in order to 'engage' with Mr May the operative moved closer to him in the cell and started a conversation with Mr May. Initially, Mr May was sitting up but during the approximate two hour recording he moved around the cell and sat up and lay down at various times. It is clear from the recording and the evidence that as time goes on Mr May is tired and not talkative. He told the operative that he was on medication for anxiety and that he had not been given his correct dose.
23 The operative lied to Mr May about who he was, that he was in custody, and what he was, supposedly, in custody for. He did not tell Mr May that he was a police officer, that the conversation was being recorded or what it could be used for. He did not caution Mr May.
24 On many occasions the operative had to re-engage Mr May in conversation when Mr May's conversation trailed off or he moved to topics which the operative was not interested in. There are many pauses during the conversation; too many to count. These appear uniformly to be periods where Mr May does not want to engage in conversation and no further conversation would have occurred except for the fact that the undercover operative recommenced it.
25 The operative used various ruses to return the subject of conversation to what Mr May was in custody for, that is, the death of Mr Di Risio, without at any time telling Mr May that he was effectively talking to him for the sole purpose of finding out from him what he knew about the murder.
26 I am satisfied that Mr May would not have spoken to the operative about the death of Mr Di Risio if the operative had not brought up the subject and by various techniques, mostly by lying to Mr May about what the undercover operative was in custody for and his life experiences and by asking pointed questions about the murder, encouraged and elicited from Mr May certain comments about the death of Mr Di Risio.
(Page 8)
27 During the conversation Mr May said some things consistent with him being at the murder scene. He said other things which could either be matters of that kind or information which has been told to him by others; that is, either the police or Mr Freeman. The undercover operative interpreted all of these comments as Mr May making admissions. Mr May, it has to be said, did not generally disabuse him of this interpretation.
28 An example of this ambiguity is when Mr May said, 'Apparently my cousin's going, you soft cocks, give him a real one. I'm like, fucking this is one of my mates, you know' (ts 7 - 8). That comment could be Mr May reciting what he recalls his cousin said to him at the time of the murder or it could be him reciting what someone else alleges or has told him about what happened. That is apparent by the use of the word 'apparently' at the commencement of the comment. The undercover operative interpreted the comment as being an admission by Mr May that he recalls Mr Freeman saying that to him (Mr May) when he (Mr May) was at the scene. The officer made that assumption and then relied on it throughout the conversation, without Mr May ever unambiguously saying that that is what he recalls Mr Freeman saying to him at the scene. It is notable also that in this exchange Mr May did not make a clear admission to stabbing Mr Di Risio, yet that is how the conversation is interpreted by the undercover operative and it is on the basis of this assumption that he continued the conversation.
29 At other times, the operative asked a question which Mr May could answer even if he was not at the murder scene, but the operative bundled it up with an assertion about Mr May's guilt. An example of this type of question is where he said, 'What, did you just give him a couple of quick ones and that's it and how did they catch you then?' Clearly, this was two questions bundled up in to one; one which implicated Mr May in the murder and one that did not do so. Mr May answered the part of the question which is, 'How did they catch you then?' without acknowledging the truth of the implicatory assertion (ts 8 - 9).
30 At other times in the conversation, Mr May denied knowing anything or recalling anything about the murder. Nevertheless, the undercover operative continued the conversation as if Mr May did recall it (ts 14). Later in the conversation Mr May made what appears to be an admission about being at the scene and seeing something of what occurred. However, he also said that the police say that he stabbed Mr Di Risio but that he has no memory of it (ts 24).
(Page 9)
31 Again, despite this statement by Mr May, the undercover operative continued the conversation as if Mr May did have a recollection of stabbing Mr Di Risio. This is in clear contradiction to what Mr May had just said and even though Mr May had never made a clear admission of this fact to the undercover operative (ts 25).
32 Eventually, the undercover operative cannot carry the conversation or get Mr May to return to the topic of the murder and the operative leaves the cell.
33 Several matters are obvious to me from the evidence of the transcript of the conversation, listening to the audio conversation of it and hearing the undercover operative's evidence. They are that Mr May would not have engaged in the conversation about the death of Mr Di Risio at all if the undercover operative had not commenced it. Secondly, to the extent that the State says Mr May makes some admissions in the interview, what he says is quite ambiguous. Even those comments which, taken at their highest, may be regarded as an admission are often contradicted by other comments. Thirdly, despite these obvious ambiguities and contradictions, the undercover operative spoke to Mr May as if he had implicated himself unambiguously in the death of Mr Di Risio.
Legal principles related to admissibility of conversations with undercover operatives
34 The State conceded that the relevant principles governing the admission of statements made to a police officer during covertly recorded conversations are those summarised in Pavitt v The Queen (2007) 169 A Crim R 452 [27] - [73]. Pavitt is a decision of the New South Wales Court of Criminal Appeal. The Court summarised the judgments of the High Court in Swaffield. At [42] the majority in Pavitt noted that the judgment of the plurality in Swaffield held that secretly recorded conversations with Swaffield were inadmissible, not because they had been illegally obtained but because they had been obtained in breach of Swaffield's right to choose whether or not he spoke to the police. The majority in Pavitt correctly said:
The police officer did not caution Swaffield before the conversation. That fact alone did not dictate exclusion of the conversation. Rather, the appropriate test should be applied 'by reference to Swaffield's right to choose whether or not to speak to the police'.
35 Their Honours referred to R v Herbert [1990] SCR 151 and concluded that the Canadian Supreme Court 'regards the use of subterfuge
(Page 10)
- to obtain a statement is likely to be in violation of a choice whether or not to speak, but even then would treat a quite unelicited admission as not calling for the exercise of the discretion to exclude'.
36 After reviewing other cases, the majority in Pavitt set out the following propositions concerning the admissibility of covertly recorded conversations:
(a) the underlying consideration in the admissibility of covertly recorded conversations is to look at the accused's freedom to choose to speak to the police and the extent to which that freedom has been impugned;
(b) if that freedom is impugned the court has a discretion to reject the evidence, the exercise of which will turn on all the circumstances which may point to unfairness to the accused if the confession is admitted;
(c) even if there is no unfairness, the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable, having regard to prevailing community standards;
(d) the question whether the conversation was recorded in circumstances such that it might be characterised as either unfair and/or improper, include whether the accused had previously indicated that he or she refused to speak to the police;
(e) the right to silence will only be infringed where it was the informer who caused the accused to make the statement and where the informant was acting as an agent of the State at the time the accused made the statement.
37 Accordingly, two distinct inquiries are required:
(i) as a threshold question, was the evidence obtained by an agent of the State; and
(ii) was the evidence elicited.
- (f) a person is a State agent if the exchange between the accused and the informant would not have taken place in the form and manner in which it did take place, but for the intervention of the State or its agents;
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- (g) absent eliciting behaviour on the part of the police, there is no violation of the accused's right to choose whether or not to speak to the police. If the suspect speaks, it is by his or her own choice and he or she must be taken to have accepted the risk that the recipient may inform the police;
(h) admissions will have been elicited if the relevant parts of the conversation were the functional equivalent of an interrogation and if the State agent exploited any special characteristics of the relationship to extract the statement. Evidence of the instructions given to the State agent for the conduct of the conversation may also be important; and
(i) the fact that the conversation was covertly recorded is not of itself unfair or improper, at least where the recording was lawful.
38 I now turn to consider the two distinct inquiries referred to in Pavitt. One is the threshold question as to whether the evidence was obtained by an agent of the State. There is no doubt that undercover operative 490 was an agent of the State. He was a serving police officer and was on duty at the time of the conversation. He was put into the cell with Mr May for the clear purpose of engaging him in conversation and obtaining, if he could, admissions from Mr May or any other information which may implicate him in the death of Mr Di Risio.
39 The action of engaging Mr May in conversation was done without telling Mr May that he was speaking to a police officer. It was done without a caution being given to Mr May. It was done without compliance with the provisions of the Act so far as they applied to arrested suspects, and it was done without formally questioning Mr May in a manner consistent with a fair interrogation.
40 As examples of that, I refer to the adverse assumptions made by the undercover operative and the bundled questions he asked. They would not be considered to be fair in a formal interrogation, especially with a suspect who two hours earlier had finished five hours of questioning over six hours, and who had mental health issues.
41 In respect to avoiding the need to comply with the Act, I note that an audio visual recording was not made of the conversation, although no evidence was given as to whether this could have been done or why it was not done.
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42 I now turn to the second question as to whether the evidence was elicited. The parties referred to dictionary definitions of the word 'elicit'. One is that 'elicit' means to draw forth, draw out or evoke, as in an admission or answer from a person.
43 The State submitted that the conversation between Mr May and the undercover operative was not elicited. The State said that it was nothing more than what would be expected between two cell mates. I disagree. In my opinion the conversation was clearly the equivalent of an interrogation, but for the reasons I have given above, it was not even a fair interrogation.
44 I note that the conversation about the murder was initiated by the undercover operative after he lied to Mr May about who he was and what he was in custody for. I also note that Mr May was still an arrested suspect in the custody of the police at the time of the conversation.
45 I have also concluded that the conversation about the murder would not have occurred unless the undercover operative had drawn out or elicited the information about it from Mr May. As evidence of that, the undercover operative constantly tried to evoke responses from Mr May about the murder. Quite often he was not successful. This is another example of the fact that Mr May was not willing to speak to anybody about the death of Mr Di Risio. Mr May had no idea that the undercover operative was a police officer or an agent of the State and did not choose to speak to him, knowing that fact.
46 Although Mr May had not refused to speak to the police further, I am satisfied that it was clear that he had said all he intended to say to the police that day. The ruse of putting the undercover operative into the cell with him was in order to violate his decision not to say anything more to the police about the death that day. That would not render any admission inadmissible if the admission was not elicited by the State agent. However the alleged admissions were so elicited.
47 I would find that the alleged admissions had been elicited from Mr May even if he had been a person in good health, but the unfairness of the means by which they were obtained is exacerbated by the known state of Mr May's health at that time. I also note that the alleged admissions, such as they are, are unclear. Even if they are taken at their highest as admissions, at other times during the conversation Mr May said things which contradict the alleged admissions.
(Page 13)
48 Taking all of the matters to which I have referred to into account, it is my opinion that the principles that are outlined in the case of Pavitt have been made out. In my view, the covertly recorded conversation contravened Mr May's freedom to choose to speak to the police and, in the exercise of my discretion, I made the decision to exclude it from evidence.
49 In my view, the undercover operative, who was clearly an agent of the State, at the time the conversation occurred elicited the alleged admissions from Mr May and those admissions, such as they are, would not have been made except for the fact that they were elicited from him in the manner that I have described.
50 I conclude that having regard to the means by which the alleged admissions were elicited by the police when Mr May was still in police custody and entitled to the rights and protections in the Act, the evidence of the conversation has been obtained at a price which is unacceptable having regard to prevailing community standards.
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