The State of Western Australia v Meehan
[2018] WADC 98
•16 AUGUST 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: KUNUNURRA
CITATION: THE STATE OF WESTERN AUSTRALIA -v- MEEHAN [2018] WADC 98
CORAM: BOWDEN DCJ
HEARD: 3 AUGUST 2018
DELIVERED : 16 AUGUST 2018
FILE NO/S: IND KUN 59 of 2017
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
ARRON JAMES MEEHAN
Catchwords:
Criminal law and procedure - Admissibility of evidence - Accused's interview whether voluntary - Criminal Investigation Act 2006 (WA) - Discretion to admit or exclude
Legislation:
Criminal Investigation Act 2006 (WA)
Criminal Procedure Act 2004 (WA)
Result:
Application dismissed
Representation:
Counsel:
| The State of Western Australia | : | Mr M Hunter |
| Accused | : | Ms Z Kickett |
Solicitors:
| The State of Western Australia | : | State Director of Public Prosecutions |
| Accused | : | Aboriginal Legal Service |
Case(s) referred to in decision(s):
Baldock v Douglas (1953) 56 WALR 82
Bunning v Cross (1978) 141 CLR 54
Carr v The State of Western Australia [2007] HCA 47
Collins v The Queen [1980] FCA 72; (1980) 31 ALR 275
Em v The Queen [2007] HCA 46
Kelly v The State of Western Australia [2017] WASCA 221
Middleton v The Queen (1998) 19 WAR 179
Mukevski v State of Western Australia [2010] WASCA 138
R v Anunga (1976) 11 ALR 412
R v Baldry (1852) 2 Den 430
R v Coats [1932] NZLR 401
R v Familic (1994) 75 A Crim R 229
R v Ireland (1970) 126 CLR 321
R v Keevers (Unreported, Court of Criminal Appeal, NSW, 60732 of 1993, 17 July 1992)
R v Lee [1950] HCA 25; (1950) 82 CLR 133
R v Li [1993] 2 VR 80
R v Pohl [2014] QSC 277; (2014) 244 A Crim R 56
R v Rymer [2005] NSWCCA 310; (2005) 156 A Crim R 84
R v Swaffield [1998] HCA 1; (1998) 192 CLR 159
R v Tooke (1989) 90 Cr App R 417
R v Versac (2013) 220 A Crim R 569
R v Voisin [1918] 1 KB 531; (1918) 13 Crim App R 8
The State of Western Australia v Cox [2008] WASC 287
The State of Western Australia v Gibson [2014] WASC 240; (2014) 243 A Crim R 68
Webb v The Queen (1994) 74 A Crim R 436
Wright v State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1; (2010) 203 A Crim R 339
BOWDEN DCJ:
Mr Arron James Meehan faces a charge of unlawfully doing grievous bodily harm to Ms Dolores Francis Unghango in circumstances of aggravation in that he was in a family and domestic relationship with her and was in breach of a restraining order.
Mr Meehan seeks to exclude the electronic record of interview conducted on 2 March 2017 at Kununurra.
Brief outline of the allegations
The State case, briefly stated, is that Mr Meehan and Ms Unghango, now deceased, had been partners for approximately 14 years.
On 1 March 2017 at about 7.30 am they were at a residence in Kununurra.
At that time a violence restraining order for the benefit of Ms Unghango prohibited Mr Meehan from being at premises where Ms Unghango lived, communicating with her or approaching within 20 m of her.
In any event, Mr Meehan and Ms Unghango had been drinking heavily. They had not been to sleep. There were a number of other people at their residence. On the morning of 1 March 2017 an argument occurred.
The State case is that Mr Meehan picked up a rock, threw it at Ms Unghango, hitting her in the lower right leg causing her to fall to the ground. Shortly after this occurred, she was taken to hospital where she was diagnosed with a fracture to the right tibia and a laceration to the right tibia communicating with her tibial fracture.
The State say that the injury was of such a nature as to cause, or be likely to cause, permanent injury to health.
The medical evidence claims that Ms Unghango's life was endangered by the risk of infection to the wound or the bone and general sepsis could have resulted in amputation or death if her injury was untreated.
It is not suggested that Ms Unghango's death six months later was attributable to this incident.
It is not disputed that, notwithstanding Ms Unghango's death, the statement she made to the police will be admitted in evidence at the trial.
In that statement she says that there was an argument between her and Mr Meehan. He picked up a rock and hit her right leg causing her to fall to the ground. Once she fell to the ground she could not move. She says he told her to tell people that she slipped.
In addition, the State rely on evidence from a neighbour (Ms Walker) who heard yelling and screaming coming from the residence where Mr Meehan and Ms Unghango were and saw a woman sitting on the kerb eating out of what appeared to be a bowl when a man came from a pathway, picked up a rock and threw it. Ms Walker was not able to say whether the rock hit the woman.
She said the male was behaving aggressively towards the woman and when he reached her, the woman stood up and they both were shouting at each other and pushing and shoving.
Ms Walker's husband said that when he came outside the commotion was underway. He saw the male with his right arm raised over a tall, slender Aboriginal woman who was lying down on a retaining wall. He told them to stop and went inside and called the police.
Constable O'Brien arrived at the scene and saw Ms Unghango lying on the ground. He was told by Mr Meehan that she had fallen over.
Officer Day arrived with Officer O'Brien and saw a female lying on the pavement clutching her right leg. He heard Mr Meehan say she fell over.
In addition, the State rely on admissions contained in the electronic record of interview conducted on 2 March 2017.
The application
The defence seek to exclude the interview and any admissions made in it on the basis that:
(a)it was not voluntarily obtained;
(b)the admissions were obtained in breach of s 138(2)(b) of the Criminal Investigation Act 2006 (WA) (CIA) rendering the answers given inadmissible under s 154 of the CIA; and
(c)if the admissions were voluntarily obtained, they should be excluded in the exercise of the unfairness or public policy discretions.
Mr Meehan contends that the caution was not administered correctly in that it was not made clear to him that he did not have to answer questions and that the answers could be used as evidence against him.
Section 98 hearing
No witnesses were called at the s 98 hearing.
Both parties were content to rely on the prosecution brief, which included a transcript of the interview. The admissible evidence is not the transcript of the interview, but the interview itself. I have watched the interview. The transcript provided is simply an aid to my memory.
In addition, the State relied on the criminal record of Mr Meehan.
The State filed written submissions dated 19 June 2018. The defence filed submissions dated 14 June 2018. At the directions hearings the submissions were supported by oral argument from counsel.
Electronic record of interview
Mr Meehan had been in custody for over 24 hours before he was interviewed. He left school during the course of Year 10. He told the police he was feeling alright and comfortable and did not need any more rest. He said that English was his main day‑to‑day language.
In the course of the interview Mr Meehan made a number of admissions.
He admitted that he had been drinking all night and was still intoxicated at the time of the incident. Originally he claimed that Ms Unghango was too drunk, could not keep her balance, was running away from him and slipped and hit the kerb.
However, later in the interview he said he picked up a rock and threw it at her. He said he was aiming to hit the fence to give her a fright. It hit her in the leg, in the shin part, and she fell over. He said he did not have any arguments with her after and he told her not to move.
He claimed that he was not trying to hit her with the rock. He agreed that the rock hit her on the back of the leg.
During the interview Mr Meehan agrees with some propositions put by the police and disputes other propositions put to him.
For example, when it was put to him that when she was laying on the ground he told her to say she fell, he maintained he told her not to move. He also disputed the proposition that he was trying to break her leg, telling the officers that he aimed at, and thought he was going to hit, the fence. He also disputed the proposition that he became more violent when he was drunk.
He agreed that he knew the restraining order was still in place.
The law
The principles relating to the voluntariness of the electronic record of interviews and their exclusion on the grounds of fairness or because their prejudicial value outweighs their probative value or as a result of public policy considerations were recently considered by the Court of Appeal in Kelly v The State of Western Australia [2017] WASCA 221 [34] – [48]. The relevant law was stated as follows:
It is a fundamental common law requirement that a confessional statement be voluntary. See R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 [50] (Toohey, Gaudron & Gummow JJ).
… If the issue of voluntariness is raised, the State bears the onus of establishing, on the balance of probabilities, that the statement is voluntary. See Wendo v The Queen [1963] HCA 19; (1963) 109 CLR 559, 572 - 573 (Taylor & Owen JJ). The nature of voluntariness, and the applicable test in determining whether a confession is voluntary, were explained by Gibbs CJ & Wilson J in MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512, 519. See also McDermott v The King [1948] HCA 23; (1948) 76 CLR 501, 511 (Dixon J); R v Lee [1950] HCA 25; (1950) 82 CLR 133, 149 (Latham CJ, McTiernan, Webb, Fullagar & Kitto JJ); Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396 [10] - [13] (Gleeson CJ), [45], [55] - [64] (Gummow & Hayne JJ), [123] (Kirby J), [245], [283], [323] (Callinan, Heydon & Crennan JJ).
If a confessional statement is not voluntary, it is not admissible in the State's case. Subject to the Criminal Investigation Act, if a confessional statement is voluntary, it is prima facie admissible.
If a confessional statement is voluntary, it may nevertheless be excluded by the court in the exercise of discretion. The basis on which this residual discretion is exercisable has been examined by the High Court in numerous cases including Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1; Van der Meer v The Queen [1988] HCA 56; (1988) 62 ALJR 656; and Swaffield.
An accused who asserts that a voluntary confession was improperly or unfairly obtained or should, on some other recognised basis, be excluded bears the onus of proving facts that would justify an exercise of the residual discretion in his or her favour. See Lee (152 - 153); Wendo (565); MacPherson (519 - 520); Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1 [115] (Blaxell J).
In Swaffield, Toohey, Gaudron and Gummow JJ noted that … even if the statement is voluntary, it may be rejected, in exercise of the residual discretion, on one or more of three other grounds (which their Honours described as the second, third and fourth bases):
'The second basis is that it would be unfair to the accused to admit the statement. The purpose of the discretion to exclude evidence for unfairness is to protect the rights and privileges of the accused person. The third basis focuses, not on unfairness to the accused, but on considerations of public policy which make it unacceptable to admit the statement into evidence, notwithstanding that the statement was made voluntarily and that its admission would work no particular unfairness to the accused. The purpose of the discretion which is brought to bear with that emphasis is the protection of the public interest. The fourth basis focuses on the probative value of the statement, there being a power, usually referred to as discretion, to reject evidence the prejudicial impact of which is greater than its probative value. The purpose of that power or discretion is to guard against a miscarriage of justice [52].'
Toohey, Gaudron and Gummow JJ said in Swaffield that 'it is not always possible to treat voluntariness, reliability, unfairness to the accused and public policy considerations as discrete issues' [74]. Their Honours added:
'The overlapping nature of the unfairness discretion and the policy discretion can be discerned in Cleland v The Queen ((1982) 151 CLR 1 …'
The concept of voluntariness extends and encompasses the situation where answers are given by an accused who lacks understanding that such questions need not be answered and as a result feels compelled to participate in the interview process. In such circumstances the interview will be non‑voluntary, that is so even though the interview itself may be conducted in an ostensibly cooperative fashion: R v Li [1993] 2 VR 80.
Voluntary does not mean volunteered, it means made in the exercise of a free choice to speak or be silent: R v Lee [1950] HCA 25; (1950) 82 CLR 133, 148.
Voluntariness focuses on the will of the accused and requires an examination of all of the circumstances including the accused's personal circumstances such as age, background and psychological condition, as well as the general circumstances in which the admission is said to have been made.
Voluntariness is not an issue to be determined by reference to a hypothetical standard. It requires a careful examination of the effects of the actual circumstances upon the will of the particular accused: Collins v The Queen [1980] FCA 72; (1980) 31 ALR 275, 307 (Brennan J).
The accused is indigenous within the meaning of R v Anunga (1976) 11 ALR 412, and the Anunga rules are relevant to the issue of voluntariness. Whilst not having the force of law in this State, they provide guidelines as to what might be considered relevant in assessing the voluntariness and give 'a very good indication of what ordinarily would be regarded as fair interrogation'. Breaches of the Anunga rules may be relevant to the assessment of the voluntariness of confessional evidence by an aboriginal person: Webb v The Queen (1994) 74 A Crim R 436, 438; The State of Western Australia v Cox [2008] WASC 287; The State of Western Australia v Gibson [2014] WASC 240; (2014) 243 A Crim R 68.
Relevantly, the third Anunga rule states:
Great care should be taken in administering the caution when it is appropriate to do so. It is simply not adequate to administer it in the usual terms and say 'Do you understand that' or 'Do you understand you do not have to answer questions'. Interrogating police officers, having explained the caution in simple terms, should ask the aboriginal to tell them what is meant by the caution phrase by phrase and should not proceed with the interrogation until it is clear that the aboriginal has an apparent understanding of his right to remain silent.
Voluntariness - understanding the right to silence
Shortly after the commencement of the interview the following exchange took place:
CON O'BRIEN:
Okay, the 1st of March 2017. Before I do however I advise you that you don't have to answer my questions unless you want to.
MEEHAN:
No comment, yeah.
CON O'BRIEN:
Yeah. Okay. But anything that you do say or do during this interview will be recorded. Okay.
MEEHAN:
[indistinct]
CON O'BRIEN:
By the microphones and the camera. Okay.
MEEHAN:
Yes.
CON O'BRIEN:
You can answer some questions and not others.
MEEHAN:
No worries.
CON O'BRIEN:
Okay. In your own words, can you tell me what that means to you?
MEEHAN:
Yes or no. If I'm in the right or wrong. (Incorrectly transcribed as 'Yes. I know if I'm in the right or wrong')
CON O'BRIEN:
Okay. Do you have to answer my questions?
MEEHAN:
No.
CON O'BRIEN:
No. Okay.
MEEHAN:
Only some.
CON O'BRIEN:
Alright. If you do answer my questions, where can it be played?
MEEHAN:
The video up there.
CON O'BRIEN:
Okay.
MEEHAN:
In the court.
CON O'BRIEN::
In court.
MEEHAN:
Yes.
CON O'BRIEN:
Okay. If you don't want to answer one of my questions - - -
MEEHAN:
No.
CON O'BRIEN:
What can you say?
MEEHAN:
No comment.
CON O'BRIEN:
Okay.
SGT McKENZIE:
So, Arron, our job as police is to ask questions.
MEEHAN:
Yes.
SGT McKENZIE:
Okay. It's to investigate and see what, what's happened.
MEEHAN:
Yeah.
SGT McKENZIE:
Alright.
MEEHAN:
Yeah.
SGT McKENZIE:
So your right as a person in this community - - -
MEEHAN:
Yes.
SGT McKENZIE:
In, have the right to what they call silence.
MEEHAN:
Yeah.
SGT McKENZIE:
Okay. So it's up to you whether you answer our questions or not.
MEEHAN:
Yes.
SGT McKENZIE:
And when you spoke to Shelley, she would have told you, don't talk to the police.
MEEHAN:
Yeah.
SGT McKENZIE:
True. She says, my advice is, is not to talk to the police.
MEEHAN:
Yes.
SGT McKENZIE:
Okay. So our role is to ask questions. Your lawyer's role is to tell you not to talk to them - - -
MEEHAN:
Yeah.
SGT McKENZIE:
And in the middle is you.
MEEHAN:
Yeah.
SGT McKENZIE:
And you have to make the choice in your own mind as to which way you go.
MEEHAN:
[indistinct]
SGT McKENZIE:
Okay. So ev-, every time we ask a question, you need to think about what we've asked.
MEEHAN:
Yes.
SGT McKENZIE:
You need to think about what your lawyer said.
MEEHAN:
Yeah.
SGT McKENZIE:
And then you have to think about what you want to do. Okay. So the only person that can make a decision to answer the question is you.
MEEHAN:
Yes.
SGT McKENZIE:
Okay. So if I said to you, Arron, what colour is that door there, do you have to answer it?
MEEHAN:
No.
SGT McKENZIE:
That's right. Whose choice is it to answer?
MEEHAN:
My choice.
SGT McKENZIE:
Your choice. Exactly. Alright.
MEEHAN:
Yes.
SGT McKENZIE:
So we say one thing, the lawyer says one thing and you make the choice what you think is best for you. Alrighty.
MEEHAN:
Yes.
SGT McKENZIE:
And then this goes onto a DVD.
MEEHAN:
Yeah.
SGT McKENZIE:
And, and you [indistinct] - - -
MEEHAN:
[indistinct]
SGT McKENZIE:
Yeah. And then the, and then the judge can, this is like the police evidence, you know, for us to show it in court.
MEEHAN:
Yeah.
SGT McKENZIE:
Okey-doke. Alright.
MEEHAN:
This is not only the first time I've been in prison. I've been in and out like a yo-yo, yo-yo
SGT McKENZIE:
I know you've been through this - - -
Mr Meehan submits that it is clear that he did not understand the caution or his right to silence because initially when asked to state in his own words what the caution means, replies with the nonsensical 'Yes or no. If I'm in the right or wrong'. The State accept that reply indicates he may not have properly understood his caution.
Further, when asked if he must answer the questions Mr Meehan responds by saying 'No only some'. The State agree this indicates Mr Meehan did not fully understand the caution.
The State points out that when Mr Meehan was asked by Constable O'Brien 'If you don't want to answer one of my questions what can you say', he replies 'No comment', which they say is a clear indication that he understands his right to silence.
The State say any suggestion that Mr Meehan did not understand his right to silence was removed when Sergeant McKenzie further explained the caution which ultimately ends with Mr Meehan acknowledging that he did not have to answer any question and it was his choice as to whether he answered or not.
I accept that initially two of Mr Meehan's responses indicate that he may not have fully understood his right to silence. However, later when asked what he could say if he did not want to answer one of Constable O'Brien's questions, he replied 'no comment', and then he acknowledges in response to Sergeant McKenzie's questions that he understands it was his decision as to whether he answered any questions and that he had a choice whether to answer questions. He also indicated that he understood that if the officer asked him questions he did not have to answer.
I am satisfied on the balance of probabilities that Mr Meehan understood that he did not have to answer any question asked of him. I note that after Sergeant McKenzie explained the caution he did exercise his right to silence and on one occasion reply no comment when asked a question.
I reject the State's submission that because Mr Meehan has a criminal record he is therefore familiar with the police interview process and therefore I can somehow infer he must know that he has a right of silence. Showing that Mr Meehan has a criminal record does not in any shape or form establish that the police have previously properly cautioned him.
Voluntariness – The content of the caution
Ms Kickett suggested that the caution required that Mr Meehan be advised not only of his right to silence but also that what he said would be recorded and may be used in evidence against him, as opposed to simply being advised of his right to silence and of the fact that what he said would be recorded and may be used in evidence. No authority was cited for this proposition.
The Criminal Investigation Act2006 and other relevant statutes are silent on the content of the caution.
In early times the caution most commonly used in the United Kingdom was in the same form as that suggested by Ms Kickett, that is, words to the effect that the accused need not say anything to incriminate himself and what he did say would be taken down and could be used as evidence against him.
In R v Baldry (1852) 2 Den 430, such a caution had been given and it was argued on appeal that those words amounted either to a promise or a threat. The appeal was dismissed. However, Pollock CB commented that whilst it was proper that a prisoner should be cautioned not to incriminate himself what the prisoner says ought to be adduced either as evidence of his guilt or evidence in his favour.
Over the following years a number of cases occurred where different views were entertained by judges as to when statements by accused persons should and should not be excluded from consideration by the jury. By 1912 judges' rules were drawn up by the judges at the request of the Home Secretary and it was said that although the rules did not have the force of law, they were administrative directions the observance of which the police authorities should enforce upon their subordinates as tending to the fair administration of justice. R v Voisin [1918] 1 KB 531; (1918) 13 Crim App R 8.
The original 1912 judges' rules provided that the caution should be in the following terms, 'Do you wish to say anything in answer to the charge? You are not obliged to say anything unless you wish to do so but whatever you say will be taken down in writing and may be given in evidence'. The Judges' Rules and Police Interrogation in England Today, T E St Johnston 57 Journal of Criminal Law and Criminology [85] (1966).
The rules provided that the words 'against you' which had often been used in the caution, despite Pollock CB's comments in Baldry, be omitted and replaced with the words 'be given in evidence'.
In 1964 when the United Kingdom judges' rules were re‑drafted, the rules provided that the caution shall be in the following terms, 'You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence' (for a suspect) or 'Do you wish to say anything? You are not obliged to say anything unless you wish to do so but whatever you say will be taken down in writing and may be given in evidence' (arrested persons). Appendix B which accompanied those rules stated care should be taken to avoid any suggestion that the person's answers could only be used in evidence against him as this may prevent an innocent person making a statement which might help clear him of the charge: Judges Rules (UK); Appendix B, Phipson on Evidence, 11th ed, [808] ,[2053].
The United Kingdom judges' rules or their equivalent were never formulated in this State and are not part of the law in this State and were not binding on courts in Western Australia (Baldock v Douglas (1953) 56 WALR 82, 79), but their non‑observance was a factor to be taken into account in determining whether the common law discretion should be exercised to exclude evidence obtained by breaching those rules.
In both Em v The Queen [2007] HCA 46 and Carr v The State of Western Australia [2007] HCA 47, the High Court considered issues arising from the caution. Kirby J [90] in Carr v The State of Western Australia spoke of the caution in respect of its two aspects, that is, the right to silence and that anything that was said would be recorded and might be used later. In Em v The Queen the court was dealing with the omission of the second part of the caution in the sense that the accused was not advised that what was said would be recorded and 'given in evidence'.
In both cases, whilst the exact content of the second limb was not the central issue, the High Court, without comment or criticism, dealt with the second limb as requiring the accused be advised that the interview might be recorded and could be used in evidence, without referring to any requirement that the caution contain the additional words 'against you'.
I reject the proposition that because the police officers omitted from the second limb of the caution the words 'against you', the caution was not properly administered.
I accept that in England, New Zealand and some States there are cases saying that what the accused says to police officers is admissible, even if his statements are all self-serving denials: R v Tooke (1989) 90 Cr App R 417; R v Coats [1932] NZLR 401; R v Keevers (Unreported, Court of Criminal Appeal, NSW, 60732 of 1993, 17 July 1992); R v Familic (1994) 75 A Crim R 229 referred to in R v Rymer [2005] NSWCCA 310; (2005) 156 A Crim R 84 (dealing with NSW before the Evidence Act 1995 (NSW).
In Western Australia if an accused makes purely self-serving denials, they are inadmissible as hearsay (Middleton v The Queen (1998) 19 WAR 179) and thus the concern first expressed by Pollock CB in Baldry, which seems to have ultimately resulted in the omission of the words 'against you' from the second limb of the caution, may not apply. Notwithstanding this, the traditional common law caution is still, in my view, in the terms that the accused is not obliged to say anything unless he wishes to do so but whatever he says will be recorded and may be given in evidence in a court.
In relation to the second limb of the caution it would not be inappropriate to advise an accused that what he says will be recorded and could be used in court against him however it is sufficient to advise that whatever is said will be recorded and may be given in evidence in a court.
Voluntariness – understanding that what is said could be used in a court
Mr Meehan submits it was not explained to him that what he said could be used in evidence against him in a court of law.
Constable O'Brien told Mr Meehan that the interview was being recorded by the microphones and the cameras and this was acknowledged by Mr Meehan. When asked '… where can it be played?', Mr Meehan replies 'The video up there'. Constable O'Brien then says 'Okay' and Mr Meehan replies, 'In the court'.
This is an acknowledgement that Mr Meehan understands that the recording could be played in the court.
Sergeant McKenzie then explains that what is being said goes onto the DVD, which is acknowledged by Mr Meehan and she says '… then the judge can, this is like the police evidence, you know, for us to show it in court', to which Mr Meehan responds 'yeah'.
Although Mr Meehan submits the use of the word 'like' would be interpreted to mean it was not in fact police evidence, rather it was like police evidence, in my view, this ignores the context in which the word was used. In the context in which it was used, it was clearly explained that the recorded interview could be shown in the court and Mr Meehan acknowledged this.
Mr Meehan understood that the interview was being recorded and could be used in court. I am satisfied on the balance of probabilities that Mr Meehan understood he had the right to remain silent and what he said was being recorded and could be used in evidence in court.
Criminal Investigation Act 2006
Section 138(2)(b) provides:
(2)In addition to the rights in section 137 an arrested suspect is entitled —
…
(b)to be cautioned before being interviewed as a suspect …
Section 138 of the CIA applies to an EROI: Wright v State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1; (2010) 203 A Crim R 339.
I am satisfied that Mr Meehan was properly cautioned and therefore, for the reasons I have already expressed, there has been no breach of the CIA. It is unnecessary for me to consider s 155 of the CIA which gives a court the discretion to admit evidence that would otherwise be inadmissible because I have found the electronic record of interview admissible.
The common law discretion
Unfairness
The unfairness discretion is concerned with the rights of Mr Meehan, not with whether the police officers have acted fairly or unfairly. The question is whether it would be unfair to Mr Meehan to use his admissions against him. The discretion is primarily concerned with his ability to obtain a fair trial. The unfairness discretion often overlaps with the exercise of the public policy discretion: R v Lee; R v Swaffield [1998] HCA 1; (1998) 192 CLR 159.
The factors to consider in the exercise of this discretion cannot be developed in the abstract but take their meaning from the circumstances of the case: Bunning v Cross (1978) 141 CLR 54; Mukevski v The State of Western Australia [2010] WASCA 138. The factors involved in considering the exercise of this discretion include matters such as the seriousness of the offence, the probative value of the evidence, the officers' conduct and the nature of the acts said to create the unfairness.
Having found the caution was explained and understood by Mr Meehan, there is nothing that would lead me to exercise my common law discretion to exclude the electronic record of interview.
Public policy discretion
The public policy discretion is concerned with matters of public interest and involves considerations of public policy that may lead a court to conclude it is unacceptable to admit the evidence.
This discretion involves striking a balance between the public interest in placing the court in possession of all relevant admissible evidence and the desirable goal of bringing convictions to wrongdoers with the competing considerations of not encouraging evidence to be obtained by inappropriate means and the public interest in protecting individuals from unfair treatment: R v Ireland (1970) 126 CLR 321; Bunning v Cross.
The public policy discretion is necessary to protect the process of the court in administering justice and also serves a policy in deterring inappropriate conduct by investigators.
Fairness is relevant to the public policy discretion, but not its sole focus. The considerations of public policy are to be applied in the particular circumstances of the case, including weighing the following non-exhaustive factors; the cogency of the evidence, the importance of the evidence in the proceedings, the nature and seriousness of the offence, the nature of the conduct, how easy it would be to comply with the law, whether such conduct is encouraged or tolerated by those in higher authority and the nature of the alleged infringing conduct: R v Pohl [2014] QSC 277; (2014) 244 A Crim R 56; R v Versac [2013] QSC 46; (2013) 220 A Crim R 569.
I have not found any inappropriate conduct by the police officers.
It was suggested that I should exercise my public policy discretion because, basically, the police officers were giving legal advice in that they explained to the accused that their job was to ask questions, the lawyer would or did say, 'Don't answer the question', and it was up to Mr Meehan to make his own decision. This style of questioning has appeared in other interviews viewed by the court. The danger with this type of approach is that it could be seen to undermine the legal advice that has been given to an accused. In my view, such statements are undesirable, however, in the absence of any evidence as to the effect such statements had on Mr Meehan, I do not consider that such statements involve improper or undesirable conduct such that would lead me to invoke the public policy discretion.
I dismiss the application. The electronic record of interview will need to be edited to take out other materials. The parties have indicated they will endeavour to agree those edits, however, it is otherwise admissible.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CZ
ASSOCIATE TO JUDGE BOWDEN15 AUGUST 2018
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