The State of Western Australia v Newton [No 2]
[2016] WASC 214
•14 JULY 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: THE STATE OF WESTERN AUSTRALIA -v- NEWTON [No 2] [2016] WASC 214
CORAM: HALL J
HEARD: ON THE PAPERS
DELIVERED : 14 JULY 2016
FILE NO/S: INS 355 of 2015
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
DARRYL RAYMOND NEWTON
Accused
Catchwords:
Criminal law - Evidence - Admissibility of unrecorded admissions - Whether reasonable excuse for absence of recording - Turns on own facts
Legislation:
Criminal Investigation Act 2006 (WA), s 118, s 155
Result:
Evidence admissible
Category: B
Representation:
Counsel:
Prosecution : No appearance (on the papers)
Accused: No appearance (on the papers)
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Accused: Legal Aid (WA)
Case(s) referred to in judgment(s):
Blum v The State of Western Australia [No 2] [2012] WASCA 40
Wright v The State of Western Australia [2010] WASCA 199; (2010) 203 A Crim R 339
HALL J: By an application dated 16 May 2016 the State seeks leave to adduce evidence of unrecorded admissions allegedly made by Darryl Raymond Newton (the accused) pursuant to the Criminal Investigation Act 2006 (WA) (CIA). The application is made pursuant to s 118(3)(b) and, in the alternative, s 155 of the CIA.
The application is not opposed by the accused, however evidence of an unrecorded admission is not admissible unless the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for the absence of a recording (s 118(3)(b)(i)) or because the desirability of admitting the evidence outweighs the undesirability of omitting it (s 155(2)). The State has filed written submissions and both parties are content for the issue to be determined on the papers.
Background
The accused is jointly charged with Joanne Ruthsalz, Seleena Ruthsalz, Justine Campbell and Darren Campbell that on or about 2 April 2015 at Hilbert he murdered Travis Benjamin Mills. A joint trial has been listed for seven weeks commencing on 18 July 2016. Throughout these reasons I will refer to Mr Newton as 'the accused', the other people charged as 'the co‑accused' and Mr Mills as 'the deceased'.
The State case is that the accused and the co‑accused were engaged in a joint criminal enterprise to kill the deceased, or at least do him an injury of such a nature as to endanger, or be likely to endanger, his life. Alternatively, the common unlawful purpose entered into is alleged to have been of such a nature that the murder of the deceased was a probable consequence of its prosecution: s 8 Criminal Code (WA). The other parties to the plan were alleged to be the deceased's partner, Seleena Ruthsalz, her mother, Joanne Ruthsalz, and friends of the accused, Justine and Darren Campbell.
It is alleged that on the night of 2 April 2015 the deceased was at home at his house at 12 Poad Street, Seville Grove. His partner and daughter were not at home. He was putting together a trampoline for his daughter's birthday, which was the following day. At approximately 1.00 am on 3 April 2015, the deceased's car was reported to be on fire in a new housing estate in Hilbert. Emergency services attended and found a person, dead, in the boot of the car. The person was later determined to be the deceased. He died as a result of 'smoke inhalation, with incineration'. The post‑mortem examination was not able to determine whether the deceased had any injuries before the fire due to the damage caused by that fire.
Forensic examination of the house as 12 Poad Street resulted in the finding of the deceased's mobile telephone in the front yard of the house. He last used that telephone at 10.15 pm on 2 April 2015. There was also a quantity of blood in and around the lounge and family/kitchen area of the house, together with evidence of an attempt to clean up that blood. A rug that was in the family area on 1 April 2015 was not there on 3 April 2015.
At 9.52 am on 2 April 2015 the accused was captured on CCTV footage at a service station in Beeliar purchasing petrol. He placed some petrol into a jerry can and then drove his car, a silver Holden Commodore station wagon away from the service station. The travelling time between that service station and the deceased's house in Poad Street has been estimated at 13 minutes.
At 10.08 pm and again at 11.15 pm a car matching the description of that of the accused was caught on a CCTV camera driving on Poad Street. One of the reasons the car is said to be identifiable is due to a missing part of the trim from the front passenger door. At 11.41 pm CCTV footage shows a vehicle alleged to be that of the accused leaving 12 Poad Street followed shortly afterwards by a light coloured station wagon. Other CCTV footage shows the two cars travelling towards the housing estate in Hilbert. Tyre impression evidence from tread patterns found at the location in Hilbert where the deceased's car was burnt are consistent with the tyres of the accused's car.
When later interviewed by police the accused denied ever being in the general vicinity of Poad Street, claimed that the trim had been missing from his car since before he had bought it and said that he had last been to the Campbells' shop a couple of days previously and would have stayed there only five minutes. There is evidence to the contrary. The State may rely on some or all of these statements as being lies told by the accused out of consciousness of guilt.
The unrecorded admissions
The accused was arrested on 13 May 2015. He was first interviewed at 9.55 am on that day. The first part of the interview was concluded at 11.09 am with a brief break between 10.37 am and 10.53 am. During that interview the accused did not seek to exercise his right to speak with a lawyer and he did not exercise his right to silence.
The second part of the interview commenced at 5.10 pm the same day. The accused was re‑cautioned. Again he did not ask to speak to a lawyer and he did not exercise his right to silence. The interview was suspended between 6.43 pm and 7.43 pm and concluded at 8.04 pm.
The third part of the interview commenced at 12.00 pm on 14 May 2015. At the start of that interview the accused confirmed that he had received legal advice that morning. He also confirmed that there had been things said by him off camera, though he declined to repeat them.
The accused spoke to a lawyer at 9.10 am. Between making that call and recommencing the interview at 12.00 pm it is alleged that the accused made unrecorded admissions. These admissions are referred to in the statement of Detective Senior Constable Geoffrey Ball (PB 3466 and PB 3469). Detective Ball states that after the accused had made a telephone call to his lawyer he was returned to an interview room at 9.30 am on 14 May 2015. The accused told police that he had been advised not to participate in any further interview. Another police officer left the room and Detective Ball and the accused were left alone. During this time the accused and Detective Ball had a conversation, most of which was unrelated to the investigation. However, in the course of the conversation the accused is alleged to have said, without being prompted, 'I spoke to the lawyer, I told him that I didn't know the guy was in the boot at the time'. A short time later, again unprompted, the accused said 'I told the lawyer the whole story. I didn't know anything so serious was going to happen. I was just the second driver'. A short time later, again unprompted, the accused said 'You think you can trust people, and then this happens. I'm normally a better judge of character'. Detective Ball immediately recorded these statements in his running sheet which he signed.
When the interview resumed at 12.00 pm the accused confirmed that he had made 'certain comments' which were unrecorded. However, when asked if he wanted the opportunity to confirm those comments, he said he would wait until he saw a lawyer.
Relevant law
Section 118 of the CIA provides as follows:
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.
Section 118(3)(b) refers to s 155 of the CIA. Section 155 of the CIA empowers the court to allow the admission of inadmissible evidence in some circumstances. It provides:
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.
In Blum v The State of Western Australia [No 2] [2012] WASCA 40 the accused had been arrested in possession of a large quantity of jewellery believed to have been stolen. A police officer attended a holding cell to inform the accused that he wished to interview him. The accused was cautioned and a request made that he participate in a video recorded interview. The accused said he would not take part in an interview and had not committed a burglary, but would plead guilty to receiving. At trial this admission was led without objection. On appeal it was held that there was a reasonable excuse for the absence of an audio visual recording of the admission. That excuse was that the accused had voluntarily made the admission, which was blurted out without warning. It was not made in response to a question and the police officer could not have reasonably anticipated that such an admission would be made at that stage. The police officer did not intend to question the accused other than in the course of a video recorded interview. Buss JA said (at [38]) that 'it is not practical or feasible to produce an audio visual recording of each and every interaction between a police officer and a suspect, irrespective of the context or the circumstances'. His Honour also referred to the fact that the accused refused to participate in a video recorded interview and, by a necessary implication, did not consent to an audio visual recording being made of the admission ([39]).
In any event, Buss JA was satisfied that the evidence should be admitted under s 155 because the desirability of admitting it outweighed the undesirability of admitting it. In this regard his Honour referred to the fact that defence counsel did not object to the evidence, that the evidence was obtained without any contravention of the Act by the police concerned and that the evidence had significant probative value ([42]).
In a separate judgment, Mazza JA (with whom McLure P agreed) reached similar conclusions. In particular at [67] his Honour said:
Given the preliminary nature of [the police officer's] inquiry of the appellant, it was reasonable for his conversation not to be recorded by audiovisual means. [The police officer] was, after all, merely inquiring from the appellant whether he would be prepared to be interviewed on video. Having regard to the voluntary and spontaneous nature of the admission, there was no practical opportunity for the admission to be recorded by audiovisual means: s 118(1)(a) of the Act. Further, it is plain from the appellant's response to the questions posed by [the police officer] that he did not consent to an audiovisual recording of anything that he said: s 118(1)(c) of the Act.
The definition of the expression 'reasonable excuse' in s 118(1) is not, in its terms or effect, exclusive. There may be a reasonable excuse that does not fall within those matters referred to in the subsection: Wright v The State of Western Australia [2010] WASCA 199; (2010) 203 A Crim R 339 [55]. As Mazza JA stated in Blum, what is a reasonable excuse requires an examination of all the circumstances relevant to the making of the alleged admission.
Application to the present case
In the present case the undisputed evidence is that the alleged admissions were made in the course of an off‑camera conversation and after the accused had indicated that he no longer wished to take part in a recorded interview. The admissions did not occur as a result of any questioning by the police and, given the accused's expressed attitude to further questioning, there was no reason to believe that he would make such admissions. There is no suggestion that the admissions were made as a result of any trickery or encouragement on the part of the police. There is no reason to think that the admissions were other than voluntary. In these circumstances there was a reasonable excuse for not recording the admissions.
In any event, I am satisfied that the desirability of admitting the evidence outweighs the undesirability of not admitting it: s 155(2) of the CIA. In this regard the following factors are relevant:
(1)the accused does not object to the admission of the evidence;
(2)the seriousness of the offence in respect of which the evidence is relevant cannot be doubted;
(3)there was no contravention of the CIA on the part of the police officers. Whilst audio visual recording equipment was available it was not turned on because the accused had indicated that he no longer wished to participate in a recorded interview. This is not a case where police had deliberately sought to circumvent the procedural requirements;
(4)the probative value of the evidence is very high. The statements of the accused contain admissions as to his involvement, albeit that he was seeking to minimise his responsibility;
(5)there is no unfairness to the accused in circumstances where he knew that the recording equipment was not operating, had had the benefit of legal advice, chose to make the statements he did and declined the opportunity to have the admissions put to him when the recording was turned on.
Conclusion
For the above reasons I have concluded that the evidence of the unrecorded admissions is admissible and the application by the State to adduce that evidence is granted. Even if I am wrong in regard to the admissibility of the evidence under s 118 of the CIA, I would exercise the discretion under s 155 to admit the evidence because I am satisfied that the desirability of admitting it outweighs the undesirability of admitting it.
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