The State of Western Australia v Partington - [2014] WASC 106

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- PARTINGTON [2014] WASC 106

CORAM: HALL J

HEARD: 17 MARCH 2014

DELIVERED : 3 APRIL 2014

FILE NO/S: INS 247 of 2013

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
JAMIE LEE VICTOR PARTINGTON
Accused

Catchwords:

Criminal law - Whether accused denied right to contact a lawyer - Whether police interview voluntary - Whether police interview unfair due to tiredness of accused

Legislation:

Criminal Investigation Act 2006 (WA), s 138, s 155

Result:

Application to exclude evidence dismissed

Category: B

Representation:

Counsel:

Prosecution : Ms C A Fletcher
Accused: Mr A E Monisse

Solicitors:

Prosecution : Director of Public Prosecutions (WA)
Accused: Andrew Monisse

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

McDermott v The King (1948) 76 CLR 501
R v Swaffield [1998] HCA 1; (1998) 192 CLR 159
Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1

HALL J: The accused is charged with one count of aggravated armed robbery. He has pleaded not guilty to that charge and is to stand trial in Bunbury from 12 to 15 May 2014. He gave notice of an objection to the admissibility of prosecution evidence of an interview with the police. The application to exclude that evidence was heard at a directions hearing on 17 March 2014.
The grounds for the application are that the accused contends that he was not afforded the right to communicate with a lawyer provided for by s 138 of the Criminal Investigation Act 2006 (WA), that the interview was not voluntary because he was offered inducements by the interviewing officers and that the interview should be excluded in any event in the exercise of discretion on the basis that it was unfair because the accused was too tired and too intoxicated to participate.
The State called evidence from the arresting officer Detective Senior Constable Gaunt and the two interviewing officers, Detective Senior Constable Perry and First Class Constable Livingstone. The accused gave evidence and called his mother as a witness. The following is a summary of the evidence given at the directions hearing.

Detective Senior Constable Gaunt

Detective Senior Constable Gaunt said that on the evening of 2 June 2013 he was called to duty to attend to the robbery of a pizza delivery driver at a house in Carey Park, Bunbury. As a result of information received he and a fellow officer attended at the Discovery Caravan Park the following morning in order to speak to the accused. The accused was spoken to for about 10 minutes at that time but not placed under arrest.
Detective Gaunt saw the accused again later on 3 June 2013, at either the caravan park or an address in East Bunbury. At the time he was going backwards and forwards between the latter address and the caravan park. Detective Gaunt could not recall speaking to the accused on this second occasion.
Later on the evening of 3 June 2013, at about 8.20 pm, the police again attended at the caravan park. The accused was located near his white commodore vehicle. He was placed under arrest by Detective Gaunt and informed of his rights. Amongst other things he was told that he could contact a lawyer of his choice if he wanted to. He replied by saying that he did not want to. A short time later a video recording was made (referred to as 'the field interview') in which Detective Gaunt confirmed that he had informed the accused of his rights. The accused expressly accepted that he had been informed of his rights. However, his response that he did not wish to contact a lawyer was not confirmed on the video.
In cross‑examination Detective Gaunt conceded that he had missed the chance to confirm on video that the accused had declined an opportunity to contact his lawyer. However, he maintained that such an opportunity had been given and that the accused had said nothing on the video to indicate that he did wish to call a lawyer. He said that it was part of the normal process to permit a suspect access to a telephone if they did indicate a wish to call a lawyer. He said that he had the telephone numbers of a number of Bunbury lawyers in his own mobile telephone for this purpose.
It was put to Detective Gaunt that he had been the driver of the vehicle in which the accused had been conveyed to the police station. He said that this was possible, but he had no recollection of it. There were other police vehicles present on the night. It was put to him that in the car the accused had asked whether he would be going home that night and that he (Detective Gaunt) had responded by saying that someone like the accused did not deserve to be going home and that the police knew exactly what had gone on and the accused should not be smart with them. Detective Gaunt denied any such statements. He said that he had no recollection of being in the same car, but even if he was there was no questioning or statements of the type alleged.
On arrival at the Bunbury Police Station the accused was placed in an interview room and a record made in the custody log. The accused was left in the interview room while police officers pursued other inquiries. Detective Gaunt said that this was the last time he had contact with the accused. It was put to him in cross‑examination that whilst the accused was being walked to the interview room either he or another police officer had said to the accused 'we are going to require you to have a video interview'. He had no recollection of any such words or of being one of the officers who walked the accused to the interview room.

Detective Senior Constable Carl Perry

Detective Senior Constable Carl Perry said that the accused was spoken to on three occasions prior to being arrested on the evening of 3 June 2013. On the three earlier occasions the accused was told the nature of the police inquiries, but denied any involvement and was not treated as a suspect at that stage.
At the time of the accused's arrest at the caravan park he was located in the vicinity of his brother's caravan. Detective Perry arrived shortly after the accused had been placed under arrest by Detective Gaunt. He was not present when the accused was advised of his rights, although he was told by Detective Gaunt that that had occurred. The accused was close by when this exchange between the police officers occurred. The accused was cooperative and raised no issues as to his treatment.
The accused was then taken to another part of the caravan park where his own caravan was located. His partner was arrested, cautioned and informed of her rights. She declined to speak to a lawyer. The accused was present at this time. An opportunity was given for the accused and his partner to interact but they did not speak about contacting a lawyer.
The caravan and the accused's car were searched. A small amount of cannabis was located in the car. Detective Perry said that the accused did not appear to be affected by drugs and did not say anything in this regard.
The accused was conveyed to the police station and taken to an interview room. He was left there in company with another police officer. Detective Perry then left to conduct further inquiries.
In regards to the accused's rights, Detective Perry said that generally his practice is to tell an arrested person of these rights whilst he is in the car and again at the police station. In particular he said that an arrested person was always reminded of his rights before an interview commenced regardless of whether he had been informed of those rights earlier.
The accused arrived at the police station at approximately 9.10 pm. Detective Perry returned and commenced an interview with the accused at 11.45 pm. Prior to the recording equipment being turned on the accused was reminded of his rights, including his right to speak to a lawyer. The accused responded to this by saying he was not interested in speaking to a lawyer and this was then confirmed on video.
The audio recording of the interview and the transcript were tendered at the directions hearing. Close to the beginning of the interview Detective Perry states:
OFFICER PERRY:    ... if at any time during this interview I ask you something you don't understand, please tell me you don't understand. The same goes with [Officer Livingstone].
PARTINGTON:        Yeah.
OFFICER PERRY:    And we'll reword the questions. Not trying to treat you like you're dumb, mate.
PARTINGTON:        Yeah, fair - - -
OFFICER PERRY:    We just wanna make sure you know what's going on. Alright. I know it's late at night. I understand you're tired and I apologise for that. But, unfortunately, we've got a process we gotta complete.
PARTINGTON:        Yeah.
OFFICER PERRY:    Okay. Alright. Have you understood everything so far?
PARTINGTON:        Yeah.
OFFICER PERRY:    Alright, mate. Um, are you in any way affected by alcohol at this time?
PARTINGTON:        No.
OFFICER PERRY:    Are you in any way affected by drugs or medication at this time.
PARTINGTON:        No (VROI ts 3).
The accused was then asked whether he was informed of his rights at the time of his arrest and he confirmed that he was. He was then asked whether he remembered what those rights were. He said:
PARTINGTON:        Yeah. I didn't have to say or do anything. Anything I did say or do may go against me in court, or go into evidence, basically.
OFFICER PERRY:    Yeah. That's what we call a police caution.
PARTINGTON:        Yeah.
OFFICER PERRY:    That's true and still the case. Um, do you remember any other rights you were given, in relation to lawyers - - -
PARTINGTON:        Yeah, I can get - - -
OFFICER PERRY:    Or speaking to other people?
PARTINGTON:        I can get lawyer or speak to somebody to notify 'em that I'm here.
OFFICER PERRY:    Okay. Yeah, that's right. So I just want to cover that again.
PARTINGTON:        Mm.
OFFICER PERRY:    Just to make sure you understand. Sounds like you do. When you're arrested under suspicion of any serious offence, you have the right to speak to a legal representative, lawyer, if you like.
PARTINGTON:        Yeah.
OFFICER PERRY:    And have you taken the opportunity to do that?
PARTINGTON:         No.
OFFICER PERRY:    Would you like to do that?
PARTINGTON:        I wanna s-, see, like, a legal [indistinct] something like that tomorrow, if I'm - - -
OFFICER PERRY:    Tomorrow - that's fine.
PARTINGTON:        Mmm.
OFFICER PERRY:    There's no problem with that. But, I mean, do you want to do it now? I mean, it's pretty hard in the middle of the night.
PARTINGTON:        Yeah, it's too late now.
OFFICER PERRY:    But we can certainly help you do that, if you wanna try.
PARTINGTON:        Too late now.
OFFICER PERRY:    Okay. Well, it's up to you. It's still your right. It's an ongoing right and it continues. Okay (VROI ts 4 ‑ 5).
After confirming the accused's understanding of his right to silence he was again reminded of his right to speak to a lawyer. Detective Perry said:
OFFICER PERRY: ... So if any time you wanna speak to a lawyer, just let me know. We can arrange that.
PARTINGTON: Yeah (VROI ts 7).
In cross‑examination Detective Perry said that he conveyed the accused to the police station with First Class Constable Brendon Livingstone. Detective Gaunt was in another car. He denied that the accused was questioned during the journey. He said that generally it was not his practice to ask questions in the car because there was no benefit in doing so, it not being recorded.
Detective Perry denied that he ever said anything to the accused to the effect that the accused was required to undertake a video interview. He said there was no such requirement and that was not a term that was used in referring to interviews.
When asked about whether the accused was tired at the time of interview, Detective Perry said that whilst the interview commenced at a late hour, this was not unusual. He also denied telling the accused that whether there was any chance of the accused going home that night depended on his interview. He said that he would not say such a thing because it would amount to an inducement. He was firm under cross‑examination that no such comment had been made. As to the accused's level of tiredness Detective Perry said the accused appeared to understand what was going on, answered questions clearly and voluntarily took part in the interview. He said the accused was no more tired than the police officers and that his own comment at the beginning of the interview regarding tiredness was merely that and not an indication that the accused was not fit to continue.
As to the right to speak to a lawyer, it was put in cross‑examination that the accused had effectively resigned himself to being unable to speak to a lawyer due to the lateness. It was suggested that Detective Perry should have advised him at this point that it may be possible to contact a lawyer notwithstanding the lateness of the hour. He responded to this by saying that the accused was an adult who could think for himself and could have tried to contact a lawyer if he wished to do so. The offer was made on more than one occasion but the accused chose not to attempt any calls.

First Class Constable Brendon Livingstone

First Class Constable Brendon Livingstone was present at the Discovery Caravan Park on the evening of 3 June 2013 when the accused was arrested. He was not present when Detective Gaunt arrested the accused and informed him of his rights.
The accused was conveyed back to the Bunbury Police Station for the purpose of an interview. He was held in an interview room until the police completed other inquiries. The interview commenced at 11.45 pm that night and Constable Livingstone was present. He confirmed that the accused was informed of his rights, including the right to contact a lawyer.
As to the accused's ability to participate in the interview Constable Livingstone said that the accused appeared to be fine and 'very lucid'. He did not appear to be affected by drugs or alcohol. As to whether he was tired, Constable Livingstone said that the accused looked fine to him and, whilst it was late in the night, the accused was not nodding off but was 'alert'. Under cross‑examination he maintained that in his opinion the accused was fine to proceed and that had he not thought so he would have stepped in. Throughout the interview the accused continued to answer questions and did not say that he wanted a rest.
Constable Livingstone denied that he or any of his colleagues told the accused that he should cooperate in order to be allowed to go home. He said that such a statement was not made and that participation in the interview was the accused's prerogative.

Police interview of 3 June 2013

A recording of the police interview together with a transcript were tendered. I have taken the opportunity to review the recording and note that the accused appears alert and responsive throughout. Once or twice he yawns, but he remains seated upright with his eyes open and with no obvious indication of fatigue. There is nothing that indicates intoxication. His delivery is fast, so much so that the police officers comment on the difficulty in keeping up. He expresses his understanding of his rights and there is nothing in the recording to suggest that he has been coerced or that his will has been overborne. At the conclusion of the interview he confirms that he has no complaints regarding his treatment by the police.
Whilst denying that he was involved in the alleged armed robbery the accused does make admissions regarding a number of matters. These include admissions regarding the address at which the robbery occurred, who was present, that he placed the order with the pizza store in a false name, that one of the weapons used was a baseball bat belonging to him, that he drove those who committed the robbery to and from the address and that he was present when the intention to commit a robbery was discussed. The police officers questioned him as to the details and informed him that what he has said did not concur with what others had told them. It is readily apparent that the accused is keen to provide his own version of the events.

Carol Cherry

Carol Cherry is the mother of the accused. She was called to give evidence by the accused.
Mrs Cherry stated that on the day of his arrest the accused had been smoking cannabis all day. However, when cross‑examined Mrs Cherry said the first time she had seen her son on 3 June 2012 was in the early evening. She said that she saw the accused smoking cannabis at her house when he came to visit. When pressed as to how she could say that the accused had been smoking all day she said she 'only had to look at him' and that he 'had glassy eyes' and 'seemed to be happy'.
When asked about the effects of cannabis on her son Mrs Cherry said it helped to keep him calm but that he could still function. She said it was possible to hold a conversation with him quite normally. She said that he had been smoking cannabis for five years and that it did not have an adverse impact on him. She said it made no difference to his ability to comprehend or understand things.
Mrs Cherry said that the accused suffered from sleep problems and sometimes could not get to sleep until the early hours of the morning. He would sometimes stay out until late in the evening. She had had conversations with him when he returned on such occasions and his condition had been 'good'. She said his ability to hold a conversation late at night was 'perfect'.

The accused

The accused gave evidence that he is 22 years old and is a full time stay‑at‑home parent.
The accused said that on the evening of his arrest he had been smoking cannabis with his brother. He estimated that he had probably had a maximum of about 10 cones. He said he would usually smoke cannabis each night in order to help him sleep.
The accused said that when he was arrested by Detective Gaunt he denied any wrongdoing. He said that the police then told him that another person had given a statement against him and that he 'may as well man up and be honest' about what he had done. He said that he told the police that he would give them whatever they wanted by way of an interview if he was then able to return home. He said that the police then told him that they did not see why he would not be able to go home if he cooperated.
The accused said that he was conveyed to the Bunbury Police Station by Detectives Gaunt and Perry and that he was questioned during the drive. He said he was asked whether he knew anything and who had led him into this. He responded to this by telling the police that they should first tell him whatever they knew. He said at the station he was placed into a small glass room that he likened to a fish tank. He said he was left there alone for what seemed like hours and was provided with no food or drink. He said that when the police officers returned after several hours they told him he was required to participate in a video interview. His evidence in this regard was as follows:
They said to me that I'm required to do a video interview. Whether I participate in it or not is a complete different story but I'm required to do one. So I thought, well, all right, we will do the video interview and hope and pray that, you know, I tell them everything that I needed - they needed to know that I knew and I'd be allowed to go home like I thought, but it wasn't that case at all (ts 127).
The accused said that he asked whether there was any chance he could go home after the interview and that one of the police officers said it depended upon what was said. He said he thought that by participating in the interview he would be permitted to go home afterwards. He said he did not think that he had a choice.
The accused said that by the time the interview commenced he was feeling very tired. The room he had been left in was not comfortable enough for him to sleep. He said it was a shock to him when he heard that the police had left to pursue further investigations and did not return for several hours.

The accused said that at the conclusion of the interview he was told that he would be charged. He asked whether that meant he could go home. He said that one of the police officers told him that a person with such a serious charge would not get bail. He said that he then 'woke up and faced reality, thinking, well, what the hell have I done'.
The accused was asked about being informed at the beginning of the interview of his right to contact a lawyer. He said that he had believed that it would be impossible to contact a lawyer at that time of the night. He said that if the police had offered to organise a lawyer for him he would have taken that up.
In cross‑examination the accused conceded that his cannabis use on the day of his arrest had not impacted on his ability to understand what was taking place or to deal with police inquiries. He said it was more a question of being tired when he was left in the interview room for several hours.
The accused also conceded in cross‑examination that he had been informed of his right to communicate or contact a lawyer at the time of his arrest. He said that he declined because he believed it was too late even then and that a lawyer would not come out and help him at that time. He also accepted that he was cautioned and that he understood that he did not have to say anything to the police if he did not wish to. However, he said that whilst he understood the caution he did not think that it represented his 'actual rights'. He said that he 'could not just say nothing to them' and that if he
[D]id nothing - well, obviously I'm going to look like I'm guilty, I'm going to look like I'm a guilty person. So why sit there and not say anything and look guilty when I wasn't guilty for the charge, that I thought anyway (ts 143).
In regards to his level of tiredness the accused conceded in cross‑examination that he had had plans for the night, which included watching a movie with his partner. However, he said it was likely he would have fallen asleep during the movie.
The accused accepted in cross‑examination that the police did not promise him that he would be going home, rather this was simply mentioned as a possibility. He was asked:
Q:So your decision to participate in the interview wasn't based on a promise, an expectation that you were going home?
A:It was more a hope. So a hope - so hopes - they put me hopes up that, basically, if I do the right thing, give them what they want, there's a good possibility that I've - like I say, still to this day I don't see that I should be charged for an aggravated armed robbery (ts 151).
He was asked why, if he did not believe that he had a choice as to whether to participate, he had not said this at the time. He said that he 'didn't think about it at the time'. He said that he was 'thinking partially' that he did not have to answer the police but at the same time he thought that if he did not answer the questions it would make him look like he was guilty.

Findings

I accept the evidence of Detective Gaunt that at the time of his arrest the accused was informed of his rights, including his right to contact a lawyer. I also accept that the accused responded to this by saying that he did not wish to take up that opportunity. The accused does not now dispute this evidence, rather he says that he did not understand his rights because he was under the mistaken belief that it would not be possible to contact a lawyer at that time of the night. This was not a rationalisation that was given at the time. Even when the accused was informed of his right again at the police station at the commencement of the interview he did not choose to exercise it. Although he referred to the lateness of the hour, it is evident from the recorded interview that he was given an opportunity to attempt to make contact with a lawyer and chose not to do so.
I doubt that the accused's claim that he only declined to make an attempt because he believed that a lawyer would not be available is true. It is apparent from the interview that the accused believed that he had a self interest in answering the police questions without further delay. He believed, whether rightly or not, that if he answered the police questions he could establish that he was not involved in the robbery. He was content in these circumstances to consult a lawyer the following day.
As to the question of voluntariness, I accept the evidence of the police officers that no inducement was made to the accused to participate in the interview. Each of the police witnesses denied that the accused was told that he was required to participate in the interview or that if he did so he would be released to go home. The accused's evidence in this regard was vague, inconsistent and unconvincing.
It is clear from both the recording at the time of arrest and the record of interview that the accused understood the caution and his right not to participate. He explained the caution in his own words and in a way that correctly encapsulated its meaning. He now says that whilst he understood the caution he nonetheless felt obliged to participate. However, it is apparent that this is because he considered that it was in his own interests to participate. This is not a case where the accused's will was overborne, rather it is a case where the accused exercised a choice to answer police questions, though he may now regret doing so.
As to the claim that the interview was unfair to the accused, this appears to rely almost entirely on the suggestions that the accused was too tired to participate. His evidence in this regard was unconvincing. It was contradicted by the evidence of the police officers and by the accused's own conduct and appearance during the recorded interview. There is no doubt that the interview was conducted late at night and it may well be that the accused was tired, though he gives very little appearance of this. However mere tiredness alone could not justify the exercise of the discretion to exclude. The tiredness would have to be such as would cast doubt on whether the interview was fair.
As I have noted, it is apparent that in this case the accused wanted the interview to proceed because he considered it to be in his own interests to do so. He did not seek a delay or a break, nor did he make any complaint at the conclusion of the interview.
Whilst reference was made in the evidence to use of cannabis the evidence of both the accused and his mother negated the possibility that this could have played any significant role in impairing the accused's ability to participate in the interview.

Conclusions

There can be no doubt that the accused was informed of his right to consult a lawyer at the earliest reasonable opportunity. Accordingly, there was compliance with the obligation in s 138(3)(a) of the Criminal Investigation Act: see Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1. Whether the police were obliged to do more than inform the accused of his right and actually afford him an opportunity to exercise it may be open to question. In any event this is immaterial since the uncontested evidence is that the accused declined the opportunity on each occasion.
The suggestion that the police were obliged to do more, in particular that they should have offered to obtain a lawyer for the accused, cannot be accepted. There is no basis in the Criminal Investigation Act for such an obligation. Nor can it be accepted that the accused was not properly informed of his right because the police did not probe him to establish that he understood that a lawyer may possibly be available at that late hour. It must be remembered that the right is an opportunity to contact or attempt to contact a lawyer. Whatever the accused's belief as to the unlikelihood of contacting a lawyer at that hour the seriousness of his situation would suggest that if he had really been concerned he would have made an attempt to contact a lawyer. The police were not under a duty to persuade him to make an attempt or to tell him that lawyers were sometimes available at night. In any event, it is clear from the record of interview that Detective Perry made it clear that, whatever the accused may think about the unlikelihood of contacting a lawyer, the opportunity to attempt contact was open to him and remained open.
The evidence does not support a conclusion that there was any breach of s 138 by the police. Even if it was arguable, which in my view it is not, that the accused was not properly informed of his right, I would exercise the discretion to admit the evidence under s 155 of the Criminal Investigation Act. I would do so because any failure by the accused to understand his right could not reasonably have been apparent to the police, the police made every reasonable attempt to inform the accused of his rights, the accused was given reasonable opportunity to exercise the rights, the alleged offence is a serious one, and the probative value of the admissions made during the interview is significant.
As regards voluntariness, the legal principles are well established. Admissions made out of court are not admissible in evidence unless they are made voluntarily: McDermott v The King (1948) 76 CLR 501, 511 (Dixon J). This means that the statement has been made in the exercise of free choice. A statement made as a result of duress, intimidation, sustained insistence or pressure is not voluntary. Nor can a statement be voluntary if it is made as a result of an inducement held out by a person in authority.
In this case the accused claims that he was subjected to undue pressure to cooperate and was told he was required to participate. I do not accept his evidence in this regard. His claims were unconvincing and inconsistent with his own evidence that the reason he spoke to the police was because he thought it would be bad for him if he did not.
The accused also claimed that he was offered an inducement that if he participated in an interview he would be allowed to go home. Again the accused's evidence in this regard was unconvincing and inconsistent. He conceded in cross‑examination that no promise was ever made and he merely hoped that by talking he would be able to leave. All of the police officers denied ever offering any such inducement and their evidence was unshaken in cross‑examination.
The evidence does not support a conclusion that the accused was pressured or offered inducements, far less that his will was overborne. Indeed, the evidence is that he was properly cautioned at every stage, understood the caution and clearly expressed his understanding. The only reasonable conclusion is that the accused voluntarily participated but regrets that choice.
As to the claim of unfairness, it is well established that evidence that is otherwise admissible can be excluded pursuant to the discretion of the court to ensure a fair trial. Three categories of discretionary exclusion were identified in R v Swaffield [1998] HCA 1; (1998) 192 CLR 159. They are where it would be unfair to the accused to admit the evidence, where the evidence should be excluded on public policy grounds and where the prejudicial effect of the evidence outweighs its probative value.
In the present case the accused submits that admission of the evidence of the interview would be unfair to the accused because he was tired and under the influence of cannabis. The implication is that the accused was significantly impaired in his ability to understand and communicate and that the police took advantage of this. The evidence does not support that conclusion.
The accused's evidence is that he was tired, but he does not suggest that he was so tired as to be incapable of understanding what was occurring and exercising his rights. The evidence of the accused's mother contradicts any suggestion that he was unfit to participate by reason of intoxication. The evidence of the police officers that the accused was fit to proceed is confirmed by the video record of interview. There is no basis for exercising a discretion to exclude evidence of the interview on the grounds of unfairness to the accused.
The application to exclude the interview is dismissed.