The State of Western Australia v McBride

[2015] WASC 275

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- MCBRIDE [2015] WASC 275

CORAM:   CORBOY J

HEARD:   23 FEBRUARY 2015

DELIVERED          :   31 JULY 2015

FILE NO/S:   INS 345 of 2014

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Prosecution

AND

NATHAN JOHN MCBRIDE
Accused

Catchwords:

Criminal law - Evidence - Whether pretext telephone call admissible as evidence of an implied admission

Legislation:

Nil

Result:

Application to exclude evidence of the call dismissed

Category:    B

Representation:

Counsel:

Prosecution                   :     Ms C A Fletcher

Accused:     Mr A E Eyers

Solicitors:

Prosecution                   :     Director of Public Prosecutions (WA)

Accused:     Anthony Eyers

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

Clarke v The State of Western Australia [2013] WASCA 67

Hall v R [1971] 1 All ER 322

Parkes v The Queen [1976] 3 All ER 380

R v Christie [1914] AC 545

R v Mitchell (1892) 17 Cox CC 503

R v Williams [1987] 2 Qd R 777

Wiedemann v Walpole [1891] 2 QB 534

Woon v R (1964) 109 CLR 529

CORBOY J: 

The application

1. The State has alleged two charges against Mr McBride:

   (a)that on 11 July 2014 at Morley, he wilfully and unlawfully damaged a motor vehicle, namely a Toyota Seca hatch, registered number 1AXF 097, being the property of Peter David Morgan, and that the vehicle was damaged by fire; and

   (b)on the same date and at the same place, he wilfully and unlawfully damaged a window, being the property of Mr Morgan.

2. Mr McBride has pleaded not guilty to those charges.  He has applied for a direction that the State not be permitted to adduce evidence of a pretext telephone call made between himself and a witness to be called by the State, Arweerat Graudkeo.  He concedes that he voluntarily participated in the call and that it was lawfully recorded.  However, he contends that evidence of the call should be excluded because of the equivocal nature of any admission he impliedly made in the call and the risk that the jury will impermissibly speculate.

The facts alleged by the State

1. The facts alleged by the State are primarily derived from statements provided by to the police by Ms Graudkeo and Mr Morgan.  There is some difficulty in ascertaining the precise sequence of events that is alleged to have occurred from those statements.  However, in summary:

   (a)Mr Morgan and Ms Graudkeo are husband and wife.

   (b)Ms Graudkeo had known Mr McBride for several years.  She had been in an intimate relationship with him until about early 2014.  Ms Graudkeo had terminated the relationship.

   (c)Ms Graudkeo was at the Burswood Casino during the evening of 10 July 2014.  She encountered Mr McBride at the Casino.  There was an argument between Mr McBride and herself in the carpark of the Casino during which Mr McBride allegedly grabbed Ms Graudkeo's handbag, causing the strap to break. 

   (d)Ms Graudkeo arrived home from the Casino at about midnight.  She went to bed and subsequently she and her husband were awoken by someone who was outside the front of their house.  Ms Graudkeo claims that she recognised the person outside the house as Mr McBride.  She identified him by the sound of his walking and from his voice. 

   (e)Mr McBride banged on a window with sufficient force to break the window.  According to Ms Graudkeo, Mr McBride also banged on the front door.  Mr Morgan answered the door and Ms Graudkeo recognised Mr McBride standing at the door.  She and her husband told Mr McBride to go. 

   (f)Mr Morgan went outside and discovered that a car that he owned was on fire.

The pretext call

1. Ms Graudkeo made a recorded pretext call to Mr McBride on 6 August 2014.  Ms Graudkeo commenced the call by referring to a restraining order that had been apparently obtained against Mr McBride but which had not been served.  She then asked Mr McBride why he had come to her house 'that night'.  He replied:

   You want me to --- do you want me to buy you a new handbag?  I'm sorry about your handbag, but it was just - it just made me very angry and upset that, you know, you went over there with someone else and they bought you stuff that I can't afford to buy you.

2. The conversation then continued:

   Ms Graudkeo:      Yeah, but why you came now, you know?  So -

   Mr McBride:        Hm?

   Ms Graudkeo:      What -- you -- just offer me one now, you said you can now or something, I don't get it you know.

   Mr McBride:        Well, I can - I can spend - yeah, I mean, $2,000 on a handbag, but not - you know, six or eight thousand, or 10 thousand or whatever it was.  I can't afford that.  I haven't got that sort of money.

   Ms Graudkeo:      But you didn't need to do what you did, you know?

   Mr McBride:        Hm.

   Mr Graudkeo:      And you know, after that, you did come to my house and you know, why you did that?  I heard your - your voice, you know.  You smash on the window and, 'Blah blah', you know?  Why you did what you did?

   Mr McBride:        Hm.

   Mr Graudkeo:      Tell me why.  You know, you burnt Mum's car, you know that?  It's all burned, you know?  Um - yeah, glass windows broken, you know?

   Mr McBride:        I'm going to have to call you back, I'm sorry.       

Mr McBride's objection to evidence of the call

1. It is common ground that the primary issue to be determined by the jury at the trial will be identity - whether the State has proved beyond a reasonable doubt that it was Mr McBride who smashed the window and set fire to the car.

2. It is contended on behalf of Mr McBride that there are a number of reasons why he might not have expressly denied his involvement in the incidents to which Ms Graudkeo referred in the call and which are the subject of the charges alleged against him and accordingly, the alleged admissions are 'equivocal in meaning and weak'.  Further:

   Because other interpretations are open, by leaving this evidence to the jury they would be invited to speculate about the Accused's response which could lead them down a path of impermissible reasoning.  At the same time, the evidence is highly prejudicial in nature due to the circumstantial nature of the case on the question of identity.

   Given the lack of probative force due to the ambiguity of any implied admissions contained in the pretext call and the real danger that the jury will rely too heavily on any adverse inferences that may be drawn, the pretext call should be excluded from the evidence put before the jury in the Court's exercise of the Christie discretion (accused's outline of submissions, pars 16 and 17).

The State's submission

1. The State submitted that the pretext call contained:

   (a)implied admissions by Mr McBride - his failure to expressly deny suggestions that he had been at Ms Graudkeo's house, and that he had engaged in the conduct the subject of the charges alleged against him; and

   (b)evidence of motive.

2. As to the first of those matters, the State submitted that Mr McBride and Ms Graudkeo were well known to each other and were, essentially, on 'equal terms' so that Mr McBride's failure to deny the allegations made by Ms Graudkeo in the pretext call constituted conduct from which the jury could infer that he had impliedly admitted that he had been at Ms Graudkeo's house and had smashed the bedroom window and set fire to the car owned by her husband.  Further, Mr McBride's intention was relevant as the State was required to prove that he had wilfully destroyed property.  Evidence of motive was relevant to the proof of his intentions. 

The relevant principles

1. The use by the police of pretext calls as an investigative technique is not inherently unfair:  see Clarke v The State of Western Australia [2013] WASCA 67 [19] ‑ [21] (Pullin JA) (with whom McLure P & Buss JA agreed). Mr McBride does not contend to the contrary and it is accepted that he voluntarily participated in the telephone call, albeit that he did not know that it had been arranged and recorded by the police.

2. The following matters are relevant to the allegation that Mr McBride impliedly made admissions by not expressly denying the suggestions put to him by Ms Graudkeo in the pretext call:

   (a)A statement made in the presence of an accused person is not evidence against that person of the facts stated, except to the extent that the accused accepted the statement, so as to make it, in effect, his own:  R v Christie [1914] AC 545 [554 (Lord Atkinson).

   (b)An accused person may accept a statement made in his or her presence by word or conduct.  The admission may be inferred from positive acts or from demeanour - for example, silence in the face of a direct accusation.

   (c)It is for the trial judge to determine whether the evidence permits an inference to be drawn that an accused person has made an admission by his or her conduct.  It is for the jury to determine whether the inference ought to be drawn.

   (d)A question asked of a person who is accused or suspected of having committed an offence is admissible if the accused was invited, or might  reasonably have been expected, to respond in some way indicative of denial or of acceptance:  Woon v R (1964) 109 CLR 529 (541) (Windeyer J). Silence is not evidence of an admission unless it is reasonable to expect that if the statements made were untrue, they would be met with an immediate denial: Wiedemann v Walpole [1891] 2 QB 534 (539) (Bowen LJ).

   (e)Accordingly, no inference adverse to an accused person can be drawn from their silence where the person has been warned that they are not obliged to answer any question put to them.  Similarly, evidence that an accused person did not deny allegations made by a police officer prior to a caution being given may be excluded:  see Hall v R [1971] 1 All ER 322.

   (f)The Privy Council distinguished Hall in Parkes v The Queen [1976] 3 All ER 380 on the basis that it was the victim's mother and not a police officer who made an accusation to the accused person. Lord Diplock cited with approval the following passage from the judgment of Cave J in R v Mitchell (1892) 17 Cox CC 503:

   Now the whole admissibility of statements of this kind rests upon the consideration that if a charge is made against a person in that person's presence it is reasonable to expect that he or she will immediately deny it, and that the absence of such a denial is some evidence of an admission on the part of the person charged, and of the truth of the charge.  Undoubtedly, when persons are speaking on even terms, and a charge is made, and the person charged says nothing, and expresses no indignation, and does nothing to repel the charge, that is some evidence to show that he admits the charge to be true (508).

   The notion of speaking on 'even terms' has been subsequently used as a point of distinction: see, for example, Phipson on Evidence (18^th ed, 2013) 4-20.

   (g)Where it is alleged that an accused person has made an admission by his or her silence, the jury must be directed that they must be satisfied that the accused heard the accusation, and that the circumstances in which the accusation was made were such that the accused person should have been expected to deny the allegation.

   (h)Ordinarily, an ambiguous or equivocal statement will not be left to the jury to determine whether it was, in fact, an admission, either because it is irrelevant or because it is excluded as a matter of discretion:  see Cross on Evidence (10th ed, 2015) [33595], fn 534.  In R v Williams [1987] 2 Qd R 777, Andrews CJ observed:

   Where however, nothing in the surrounding circumstances is shown which could reasonably be thought to compel a denial by a person interrogated or where he gives an answer which is ambiguous, neutral, equivocal or otherwise not plainly inconsistent with a consciousness of innocence it ought not to be left to the jury with a direction to the effect that it is left to them as a fact for their consideration and thus that they might regard it as probative and press it into service of the Crown.

   As a rule it would be excluded because it is irrelevant.  If, however, it is only by some tenuous reasoning as to its relevance that a ruling that it is technically admissible might be made, which could happen in some circumstances, its sheer lack of weight would cry out for its exclusion in the proper exercise of a judicial discretion (780 ‑ 781).

Ruling

1. The pretext call contains an express admission by Mr McBride that he had been involved in an incident with Ms Graudkeo in which her handbag had been damaged.  Further, he admits being angry about the fact that he was unable to buy a very expensive handbag for Ms Graudkeo, unlike some other unnamed person.  I accept the State's submission that those admissions are relevant and admissible:

   (a)They corroborate, in part, Ms Graudkeo's account of the incident that she states occurred a few hours prior to when the offences were allegedly committed.

   (b)They provide evidence that Mr McBride was angry and frustrated following that incident.  That is a circumstance that is, in my view, relevant to the issue of whether he was the person who was at Ms Graudkeo's house and who smashed the window and set fire to the car.   It is evidence that is also relevant to the question of intention.

2. Those admissions also provide the context within which the remainder of the pretext call is to be considered.  Mr McBride's responses to the accusations put by Ms Graudkeo are undoubtedly equivocal.  His answers could not be relied upon as express admissions for that reason.  However, the State does not contend that he has expressly admitted his involvement in the offences alleged against him in the call, but rather that his failure to deny Ms Graudkeo's allegations constitutes an implied admission.  In my view, a jury might properly infer that Mr McBride has impliedly admitted that he went to Ms Graudkeo's house following the incident at the Burswood Casino having regard to the admissions that he earlier made in the pretext call.  It might have been expected that Mr McBride would have denied taking the confrontation between himself and Ms Graudkeo further once he had admitted damaging her handbag and feeling angry and frustrated - in effect, that he would have denied doing more than he had already admitted.  

3. Counsel for Mr McBride identified a number of possible explanations for why Mr McBride may have not expressly denied Ms Graudkeo's allegations and contended that the jury would be invited to impermissibly speculate among those alternatives if evidence of the pretext call was admitted.  There will always be, at least, hypothetical alternative explanations for an accused person's behaviour at the point where the admissibility of evidence of conduct is considered.  The evidence is not automatically excluded because of the possibility of alternative explanations.  Rather, the question on admissibility is whether the accused person's conduct and the circumstances in which it occurred are such that a jury might reasonably infer that the behaviour of the accused person constituted an admission.  That is not an invitation to the jury to impermissibly speculate if the evidence is admitted.