The State of Western Australia v Phillips
[2015] WASC 193
•29 MAY 2015
THE STATE OF WESTERN AUSTRALIA -v- PHILLIPS [2015] WASC 193
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 193 | |
| 29/05/2015 | |||
| Case No: | INS:325/2014 | 13 MARCH, 10 & 16 APRIL 2015 | |
| Coram: | SIMMONDS J | 17/04/15 | |
| 35 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA JOEL CANE PHILLIPS |
Catchwords: | Criminal law Admissions and confessions Admissions to police officer not recorded audiovisually Admissibility of evidence Section 118 and s 155 of the Criminal Investigations Act 2006 (WA) |
Legislation: | Criminal Code (WA), s 570D (repealed) Criminal Investigations Act 2006 (WA), s 118, s 155 Criminal Procedure Act 2004 (WA), s 98 |
Case References: | Carr v The State of Western Australia [2007] HCA 47; (2007) 232 CLR 138 Floyd v The State of Western Australia [2013] WASCA 33 Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196 R v Murcott; R v Johnston [2005] WASC 30; (2005) 31 WAR 198 Stapleton v The Queen [2002] WASCA 328 The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285 The State of Western Australia v Yerkovich [2004] WASC 62 Wells v The State of Western Australia [2013] WASCA 124 Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Prosecution
AND
JOEL CANE PHILLIPS
Defence
Catchwords:
Criminal law - Admissions and confessions - Admissions to police officer not recorded audiovisually - Admissibility of evidence - Section 118 and s 155 of the Criminal Investigations Act 2006 (WA)
Legislation:
Criminal Code (WA), s 570D (repealed)
Criminal Investigations Act 2006 (WA), s 118, s 155
Criminal Procedure Act 2004 (WA), s 98
Result:
Application dismissed
Category: B
Representation:
Counsel:
Prosecution : Ms G Colborne
Defence : Mr D A Fort
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Defence : Fort Legal
Case(s) referred to in judgment(s):
Carr v The State of Western Australia [2007] HCA 47; (2007) 232 CLR 138
Floyd v The State of Western Australia [2013] WASCA 33
Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216
Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196
R v Murcott; R v Johnston [2005] WASC 30; (2005) 31 WAR 198
Stapleton v The Queen [2002] WASCA 328
The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285
The State of Western Australia v Yerkovich [2004] WASC 62
Wells v The State of Western Australia [2013] WASCA 124
Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1
- SIMMONDS J:
(This judgment was delivered extemporaneously on 17 April 2015 and has been edited from transcript).
Introduction
1 These are the reasons for decision on an application (the application) under Criminal Procedure Act 2004 (WA) s 98 for an order to permit the admission of evidence of certain admissions (the admissions) for the purposes of a forthcoming criminal trial.
2 The application dated 27 February 2015 is for an order that:
Unrecorded admissions made by the accused to police officers on 11 May 2014 [brief pages 44 - 46 and 51 - 55] be admissible on the trial of the accused.
3 This decision follows a hearing of the application at which the two police officers to whom the unrecorded admissions referred to were made appeared and testified. Those police officers were Detective First Class Constable Derek Tighe and Detective Senior Constable Jason Filgate, who was then a Senior Constable.
4 The application raises questions of the application of two of the exceptions to the rule for the inadmissibility of unrecorded admissions contained in Criminal Investigation Act 2006 (WA) s 118(3), on both of which the State relied.
5 The relevant provisions of the Criminal Investigation Act are in s 118(3). This might be referred to as the inadmissibility rule. It should be read with s 118(1) 'admission'. Under s 118(3) there are two classes of exceptions relevant to the application. The first relevant exception is in s 118(3)(b)(i) read with (1) ('reasonable excuse'). The second relevant exception, referred to in s 118(3)(b)(ii), is in s 155(2) ('the desirability of admitting the evidence outweighs the undesirability of admitting the evidence'). I set out s 118 in relevant part, as follows:
118. 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;
…
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.
…
(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.
7 Criminal Investigation Act s 155 reads as follows:
155. 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.
8 The State accepts that, of the listed specifics in Criminal Investigation Act s 118(1) 'reasonable excuse', only (c) is possibly relevant.
9 However, the State also puts its case in respect of 'reasonable excuse' on the generality of the words 'reasonable excuse' given, as I will note, that the specifics are not exhaustive. I will call this 'reasonable excuse' otherwise.
10 In these reasons, I first provide background as to the proceedings in the prosecution for a forthcoming trial.
11 I then turn to the admissions to which the application relates, including the circumstances under which the admissions were made.
12 I then describe and apply the law applicable to the exception in Criminal Investigation Act s 118(3)(b)(i), read with s 118(1) 'reasonable excuse', both in respect of the specific (c) and 'reasonable excuse' otherwise.
13 I will then describe and apply the law applicable to the exception in Criminal Investigation Act s 118(3)(b)(ii), by reference to s 155.
14 The final section of these reasons is my overall conclusion.
15 For reasons which should become apparent, this decision is necessarily a lengthy one. I should then at the outset indicate my conclusion. It is that the prosecution application should not be granted.
Background
16 The following matters are either common ground for the purposes of the application between the parties or unchallenged evidence given by Officers Tighe and Filgate.
17 The accused faces three charges: one of aggravated burglary with intent in dwelling; one of aggravated burglary and commit offence in dwelling; and one of aggravated armed robbery.
18 The following are matters of allegation that are the basis for that prosecution.
19 At approximately 1.00 pm on Saturday, 10 May 2014 a green Mitsubishi Pajero four-wheel-drive (the Pajero), registered in the name of the 'auntie' of the accused, but in his possession at the relevant time, was at an address in Ballajura. CCTV feed from a nearby residence captured the Pajero driving into Lakeshore Close in Ballajura at 12:58:14. The footage does not capture the number or identity of the occupants of the Pajero.
20 Two males entered a garage attached to the house at an address on Lakeshore Close. The males rummaged through the vehicle of a person (the first complainant) until they were interrupted and challenged by a female neighbour, Ms TD. The males got into the Pajero, which then drove off.
21 Ms TD managed to photograph the Pajero on her mobile telephone as the Pajero left the scene. As the Pajero drove past it veered straight towards her, as if to run her down.
22 Ms TD forwarded her photograph of the Pajero to the first complainant and to the police. The police were able to enhance the photograph and read the registration number of the Pajero.
23 CCTV feed from the nearby residence captured the Pajero exiting Lakeshore Close, doing a lap around the roundabout and then exiting towards Bermuda Drive, the next road on the right-hand side. It was seen doing this at 13:06:16.
24 The Pajero then stopped at an address on Bermuda Drive in Ballajura.
25 Two Aboriginal males of medium coloured 'milk coffee' skin entered the address through an open side door. The accused is an Aboriginal male with fair skin.
26 Inside the house, the two males were challenged by the 19-year-old Vietnamese complainant, Mr DTN (the second complainant).
27 One of the two Aboriginal males grabbed the second complainant and forced him into his mother's bedroom and on to the bed. The two Aboriginal males demanded cash. In the bedroom, one of them, armed with a large sword or machete approximately 75 cm in length, threatened to cut the second complainant into pieces if he did not hand over his mobile telephone.
28 A scuffle ensued during which the second complainant's leg sustained a minor cut from the sword or machete. The same Aboriginal male then kicked the second complainant in the head, approximately five or six times.
29 The second complainant then managed to flee to the ensuite bathroom. He locked the bathroom door and called out for help.
30 The second Aboriginal male was also armed with a sword.
31 During the incident the two Aboriginal males stole numerous electronic items from the house: an Apple iPhone 5; an Apple iPhone 4; a Samsung digital tablet; a Panasonic LED LCD TV; a Samco solar wristwatch; a Dell laptop; an Ashby laptop; a Samsung laptop; a Sony laptop; and an iPad Air. Two Vietnamese passports were also stolen.
32 The two Aboriginal males loaded the stolen property into the Pajero.
33 When all was quiet, the second complainant came out of the bathroom and went to a glass door. From there he observed the Pajero drive by, with a sticker on the rear window, leaving the scene.
34 CCTV feed from a nearby residence captures the Pajero pass from right to left (in a westerly direction) at 13:28:15. The feed does not show the identity or number of occupants in the vehicle.
35 The next morning, Sunday, 11 May 2014, the second complainant's family used the 'Find my iPhone' application (the app) in an effort to locate one of the stolen iPhones. The app indicated that that iPhone was at an address on Woolgar Way in Lockridge, the street on which the accused lived.
36 The second complainant and his family drove to Woolgar Way. There the second complainant saw and recognised the Pajero. It was parked at an address on Woolgar Way where the accused lived with his cousin Ms B.
37 The second complainant's mother rang the police and provided this information.
38 At approximately 3.30 pm on Sunday, 11 May 2014, the accused was stopped while driving the Pajero back to his aunt's house, being the 'auntie' who was the registered owner of the vehicle. She lived at an address on Sturtridge Road in Lockridge. This was around the corner from the accused's house.
39 The 'auntie' has provided a witness statement (prosecution brief, pages 62 - 63) stating that she is the owner of the Pajero and that she had lent it to her nephew sometime the previous day, Saturday, 10 May 2014. The accused was arrested and taken back to the offices of the Midland Police.
40 At 4.20 pm on Sunday, 11 May 2014 a search warrant was executed at the house of the accused in his absence. The search was recorded on video. In the bedroom of the accused the following items of interest were located: the stolen Panasonic TV, which was plugged in and connected to an antenna; the stolen Sony laptop computer; and a machete and sword bearing some similarity to the weapons described by the second complainant.
41 Starting at 9.32 pm on Sunday, 11 May 2014, at the Midland Police Station, Officers Tighe and Filgate interviewed the accused on video for over two hours, an interview that was electronically recorded (the EROI). As I will indicate the EROI was played at the directions hearing and a DVD of it became an exhibit, exhibit 3. I was provided with a transcript of the EROI. I understood no objection was taken to its accuracy for my purposes, and I did not find any inaccuracies in it for those purposes, save in the respect I now note.
42 I note that the transcript of the EROI incorrectly shows the start time of the interview as '9.32 am'. The EROI transcript accurately shows the interview concluded at '13 minutes past midnight' (ts 107).
43 The EROI concerned the current and other matters. The EROI as so recorded contained some admissions as to peripheral items in relation to the current matters. There were no other admissions.
44 In particular, the accused denied any involvement in the current offences. He said he had been asleep for six hours between 10.00 am and 4.00 pm on the day in question. He admitted that the Pajero belonged to his 'auntie' and that he had been in possession of it since the day before. He explained the property in his bedroom as being property from others who had committed the offences. However, he said he could not give them up as he was not a 'dog'. They had left the property in his room when they came to his house asking for drugs.
45 It was not in contest that the principal issue for a trial of the accused will be that of identity.
46 I further consider it not to be in contest that the admissions are of significant relevance to that issue.
The admissions and their context
47 I continue to describe what is either common ground before me for the purposes of the application or the evidence of Officers Tighe and Filgate.
48 The last page of the transcript of the EROI (ts 107) contains the following:
DET TIGHE: Um, is there anything you want to say in relation to any of these matters that we've spoken about. [indistinct] This is, this is your
PHILLIPS: No. Um, I just want to bring up one, um, I spun a life, my, my kids' lives that I had nothing to do with any of that assault or anything like that.
DET TIGHE: Mmm.
PHILLIPS: It's not in my nature to do that kind of stuff. I've stopped doing burgs years ago because it, it's, it's just gone through the roof. It's just ridiculous.
DET TIGHE: Mmm.
PHILLIPS: Like I, it's not, it's not in my nature any more to do anything like that and
DET TIGHE: Alright.
PHILLIPS: Because, um, you believe me you don't, and at the end of the day it's going to come down to a trial and all the rest of it, so.
DET TIGHE: Alright. Well, look that completes the interview.
PHILLIPS: Mmhmm.
DET TIGHE: Alright. So what we do now is a formal assessment of all of the evidence that we've got
PHILLIPS: Yeah.
DET TIGHE: And then we will make, if we need to make further inquir-, inquiries, um, and then we'll make a decision as to what further action we will take and then I'll advise you once that decision has been made.
PHILLIPS: Alright.
DET TIGHE: Okay. So if you are subsequently charged with anything a copy of this video will be made available to you or your legal representative within fourteen days of being charged or as soon as practicable thereafter.
PHILLIPS: Alright.
DET TIGHE: Okay? So we'll turn the, the video off now and it's 13 minutes past midnight.
PHILLIPS: Yeah. That's correct.
DET TIGHE: Okay.
49 The video recording equipment was switched off at this point. Officers Tighe and Filgate continued to speak to the accused.
50 In their witness statements forming part of the prosecution brief, the two officers provide accounts of what happened during that exchange (the accused's exchange with the police officers): see for Officer Tighe, the witness statement made 13 August 2014, 6.00 pm (prosecution brief, pages 37 - 44, at 44); for Officer Filgate, the witness statement made 1 September 2014, 11.43 am (prosecution brief, pages 47 - 55, at 51 - 55).
51 Officer Tighe's witness statement attaches a document (prosecution brief, pages 45 - 46) (Officer Tighe's attachment) which the witness statement refers to as one of the accused's exchange with the police officers and which was made by the officer the 'following day'. Officer Tighe's attachment became exhibit 2 before me.
52 I note that Officer Tighe's testimony as to the circumstances of the creation of exhibit 2 was at some variance with his witness statement.
53 In his witness statement, Officer Tighe said that he 'documented the conversation the following day', which on one view would have been Tuesday, 13 May 2014, as the EROI ended, as indicated in the quotation from its transcript above, at 12.13 am on 12 May 2014. Exhibit 2 was dated 13 May 2014.
54 However, Officer Tighe testified that on that date he prepared an initial version of what became exhibit 2 using the word processing program Notepad. This became exhibit 1 before me. Exhibit 1 has on it an annotation which Officer Filgate testified he had made when Officer Tighe showed exhibit 1 to him. This annotation was to reflect a comment which Officer Filgate recalled the accused had made and which did not appear in exhibit 1 as shown to Officer Filgate. That comment was a reference to a 'high-class prostitute' the accused identified in the annotation as 'Emmy' and as having been on Bennett Springs Drive.
55 It was not in contest that that same day, Tuesday, 13 May 2014, Officer Tighe prepared what became exhibit 2 using the word processing program Word. I note that there is very little difference between exhibit 1 and exhibit 2, and none of substance. However, I note that the annotation Officer Filgate testified he wrote on exhibit 1, 'Emmy Bennett Springs Drive Freshwater' does not appear anywhere on exhibit 2. At the same time, neither counsel made anything of this difference.
56 Officer Filgate testified that exhibit 2, in relation to exhibit 1, was:
not as much as in more accurate but fuller recollection of what he has said. The first version is more - I would read it as his notes and the second is a formalisation of his notes (13 March 2015, cross-examination, ts 25).
57 Officer Tighe testified as to exhibit 2, in relation to exhibit 1, that:
this is where I would have just put the notes into a Word document, just to make them look a little bit better and - and fix up any typos. It was - it's fundamentally the same - same contents.
And when did you compile this one? So that was done on the same Tuesday, so that was the 13th of the 5th, and I've signed the bottom of it and dated the bottom of it as well (13 March 2015, examination-in-chief, ts 49 - 50).
58 Before turning to what appears in exhibit 2, I note what appears in Officer Filgate's witness statement in the following respects.
59 Officer Filgate's witness statement says that immediately after the video recording equipment was switched off, Officer Tighe made a comment to the accused that the account which he had provided during the interview did not make any sense. The witness statement goes on to say:
that [m]y [sic] comment to the accused provoked a conversation [with the two police Officers] [30].
60 Officer Tighe's witness statement makes no reference to the comment. However, he testified that:
I passed a comment to Joel Phillips, and - and I - I've made a comment, something like - along the lines of, Do you realise how silly that - some of that stuff sounded? And his reply to that comment was he made some remarks, and from that point on we had a conversation, myself, Detective Filgate and Joel, and we - we had a discussion about what had actually transpired. So Joel then started to talk about what had actually happened (13 March 2015, examination-in-chief, ts 44).
61 Officer Filgate's witness statement then describes the exchange between the two officers and the accused in almost entirely the same words, in the same order, as appear in Officer Tighe's attachment (exhibit 2).
62 I now set out the text of exhibit 2:
After interview was finished, DVD's finalising PHILLIPS started talking as follows...
What they did was disgusting, to the little fella, it was disgusting...
Started with saying that 'I'm not a dog' i won't say anything or dob anyone in.
Said, you guys know who it is; he's running amuck in this area, you guys are watching him.
Asked, well who is it then?
Replied, I'm not a dog, I'm not saying.
Asked, give us something to go on...
Replied, The first letter on the DVD machine
'D'
Nodded yes
Derek Tighe wrote on a piece of paper and the erek and ighe crossed out leaving DT
Phillips nodded yes.
So is it Darryl THORNE?
PHILLIPS nodded yes.
He was asked 'So who was the other guy then?
PHILLIPS said, 'He's only a young fella, getting caught up with everything'
What's his name, 'I think something like Jayden...'
Asked so what happened then?
PHILLIPS replied...
I was driving through Bennet Springs, at the second roundabout, the two guys (THORNE AND JAYDEN) jumped in the car and i drive, i drove, i have a big heart.
Something about a high class prostitute???
Went to Ballajura, they said stop so I did, I didn't know where in Ballajura.
Next the two guys came running out and said drive, drive...so i did. I said, 'fuck man you're doing shit like this and this is my auntie's car'
A lady started taking pics as i was driving away, i put my head down to hide my face and the car went towards her, i know that it would have looked like i drove at her but it wasn't on purpose.
I was looking around, panicked a bit; i saw a house with the garage up so drove in.
The two went into the house through the side door.
DT said 'stay there man, don't fucking move or else...'
I stayed put and waited, after a while they came out.
As we were leaving DT said there was a guy in the house, i said what happened, DT said he smacked him in the head a few times.
I don't agree with that. It's disgusting...
PHILLIPS was asked...what about the stuff in your house, the TV, the Laptop, PHILLIPS nodded, so that was all the stuff from the house, PHILLIPS nodded yes.
PHILLIPS was asked, so what about all of what you've just said for the past 2 hours, was that all rubbish, PHILLIPS nodded yes...
PHILLIPS was asked, 'Where's all the rest of the stuff from the house?'
He replied, it should be in the house...
PHILLIPS was told that it isn't at the house; he replied 'I don't know then...'
63 I note the uncontested testimony of both Officer Filgate and Officer Tighe that exhibit 1 and exhibit 2 were accurate reflections of what they recalled as to the exchange with the accused in the respects that the exhibits describe. This is except for questions in the cross-examination of Officer Tighe as to the reference to the gender of the photographer above, to which I will return to below.
64 However, so far as matters not contained in exhibit 1 or 2 are concerned, Officer Filgate testified he commenced taking some notes of the accused's exchange with the police officers, in the sense of bringing his notepad out to write notes in it. On his testimony, before he could start taking notes the accused said that, if he were to take notes, the accused would stop talking to the two officers. Officer Filgate accepted he had not referred to this in his witness statement (13 March 2015, cross-examination, ts 26).
65 In examination-in-chief, Officer Filgate testified as follows:
Mr Filgate, are you aware of the Criminal Investigation Act requirement that admissions made by the accused to police officers have to be video recorded? I am.
And did you appreciate the significance of what the accused was telling you off camera? I did, and I offered him the opportunity to return to a recorded, or formally recorded interview but he declined.
So when did you offer for him to go back on video? Both during the conversation we were having and then afterwards.
And what was his response? In effect of he didn't want to - to dob anybody or to be known to have dobbed on anybody, and he told us that he would not go back on video to tell us what he was telling us there.
SIMMONDS J: I'm sorry, that drifted off. Can you repeat that answer a little more loudly, please? Sorry, your Honour. In effect, he did not want to dob on anybody, did not want it known that he had, to use his term, dogged, anybody.
Dogged, not dobbed? Both.
All right? Dogged being a colloquialism for telling the police or informing the police about what has occurred.
Yes? And that if we were to return to a recorded interview he would cease talking to us.
He added words in those terms, or words to that effect? To the effect of the conversation would end.
I see. Thank you (13 March 2015, ts 24 - 25).
66 In cross-examination, Officer Filgate acknowledged he had nowhere in his witness statement referred to asking the accused whether he would consent to participating in a recorded interview (13 March 2015, ts 26).
67 For his part, Officer Tighe testified in his cross-examination that he had 'a recollection' or a 'vague recollection' of an exchange between the accused and Officer Filgate as to the latter taking notes: see 13 March 2015, ts 54 (first quotation); see also 10 April 2015, ts 73 (second quotation).
68 Further, Officer Tighe testified in his examination-in-chief as to the matter of having the accused going back on a recorded interview as follows:
Mr Tighe, are you aware of the criminal investigation requirement that admissions made by an accused to police officers have to be video recorded? I am.
And at the time you were having this conversation, were you aware of the significance of what the accused was saying to you? I was.
Did you ask the accused to go back on video? That - that's a question that I would ordinarily ask a person. In all honesty, I can't recall if I did ask him on that occasion. It's something that I would normally do, however, I was aware also that we had already just completed a very long video interview, and we - Joel had also spoken numerous times about his reluctance to speak on video or anything on record as to. So I can't honestly say that I did ask, but it is something that I would normally do (13 March 2015, ts 51).
69 Officer Tighe further testified in cross-examination as to Officer Filgate seeking such consent as follows:
Do you recall whether Officer Filgate said to Mr Phillips - or said to Joel, 'Can we just record what you're saying?' I don't recall that, but I don't recall myself saying it either, but I don't recall anybody saying that.
You don't recall it today. If that had have been done, would that have been recorded, if that question had been asked of Joel? I - I would like to think so. Yes.
In order to comply with the? Yes.
Criminal Investigation Act? Yes.
There's no record? No.
That you've seen? No (13 March 2015, ts 55 - 56).
70 It may be noted that neither the matter of the exchange concerning notes nor the matter of the exchange concerning going back on to a recorded interview appears in either exhibit 1 or exhibit 2.
71 I note the following testimony of Officer Tighe as to another omission from exhibit 2:
You said there was at one point in this conversation that you had after the recording where Joel mentioned a lady. Now, that's quite a significant thing for him to say when, as you said, you hadn't referred to a lady earlier in the recording. It's quite a significant piece of information, isn't it? That's correct. This is to do with taking the photograph.
That's correct. Yes? Yes.
So did you question Joel as to why he had this sudden? I think I said to revelation? I think I said to him that the - the flow of conversation was - Joel said the lady jumped - jumped out and started taking photos, and I would have said, How did you know it was a lady?, you know, and he says, Oh, I saw - saw the lady. And I said, Well, I - I haven't spoken about a lady, because I was aware that I had only used the word 'person'.
So some aspects of this conversation weren't recorded. Is that what you're saying? This is the conversation after? Yes That's right.
The conversation you referred to the lady? Yes. That's - yes. So that's not in those notes, but that's something that I remember in my head. Yes.
This is something that you remembered in your head more than 24 hours after the conversation? There was a lot of smaller words in the conversation that are probably not in the text document, so (13 March 2015, cross-examination, ts 56 - 57).
72 Finally, I note the evidence from both Officer Filgate and Officer Tighe that they were aware of the requirements of the Criminal Investigation Act for the video recording of interviews with suspects (Officer Filgate: 13 March 2015, examination-in-chief, ts 24; Officer Tighe 13 March 2015, examination-in-chief, ts 51.
73 It was not in contest before me that the evidence of the admissions which the State seeks permission to lead is, by virtue of Criminal Investigation Act s 118(3), not admissible in the prosecution unless the State has the benefit of one or other of the exceptions in s 118(3)(b). I so determine.
74 Further, it was not in contest that if the inadmissibility rule did not apply the admissions are admissible as confessional evidence in respect of which the State has discharged any burden that fell upon it of showing they were made voluntarily: see on that ground of admissibility of confessional statements or admissions and that burden TheState of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285 [46] - [47] (Martin CJ, Hall J agreeing), [153] (Buss JA).
75 Finally, it is not in contest that there is no question in this case of the application of the common law exclusionary rules for confessional evidence, as to unfairness or public policy, save that a matter of unfairness was pressed for the accused, as I will indicate.
Exception in Criminal Investigation Act s 118(3)(b)(i); s 118(1) reasonable excuse' (c)
76 It is not in contest before me, as I have indicated, that the only one among the listed specifics for the application of Criminal Investigation Act s 118(1) 'reasonable excuse' that might be contended for in this case is the specific in (c), 'the suspect did not consent to an audiovisual recording being made of the admission'.
77 It was common ground before me that there was no authority in this court on the application of Criminal Investigation Act s 118(1) 'reasonable excuse' (c). However, there are authorities on the application of its predecessor provision, former Criminal Code (WA) (former Code) s 570D(4)(c). That provision in its material context was as follows:
570D Accused's admissions in serious cases inadmissible unless videotaped
(1) In this section -
'admission' means an admission made by a suspect to a member of the Police Force or an Officer of the Corruption and Crime Commission, whether the admission is by spoken words or by acts or otherwise;
…
(2) On the trial of an accused person for a serious offence, evidence of any admission by the accused person shall not be admissible unless -
(a) the evidence is a videotape on which is a recording of the admission; or
(b) the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for there not being a recording on videotape of the admission;
(c) the court is satisfied that there are exceptional circumstances which, in the interests of justice, justify the admission of the evidence
...
(4) For the purposes of subsection (2), 'reasonable excuse' includes the following -
(a) The admission was made when it was not practicable to videotape it.
(b) Equipment to videotape the interview could not be obtained while it was reasonable to detain the accused person.
(c) The accused person did not consent to the interview being videotaped.
(d) The equipment used to videotape the interview malfunctioned.
79 It will also be noted that the counterpart to former Code s 570D(2)(c) is now Criminal Investigation Act s 155, reproduced above. It may be seen that provision is framed in quite different terms to its Code predecessor.
80 There appear to be at least two relatively recent authorities in this court on former Code s 570D(4)(c). One is The State of Western Australia v Yerkovich [2004] WASC 62 (Roberts-Smith J). The other, the most recent of which counsel or I are aware, is R v Murcott; R v Johnston [2005] WASC 30; (2005) 31 WAR 198 (Owen J).
81 There is comment on Yerkovich in what appears to be the most recent High Court authority on former Code s 570D (there is none of which I am aware on Criminal Investigation Act s 118), Carr v The State of Western Australia [2007] HCA 47; (2007) 232 CLR 138: see Carr [70] - [72] (Gummow, Heydon & Crennan JJ); see also [14] (Gleeson CJ) (commenting on the question as to Yerkovich raised in [72] below; to same effect).
82 In my view, it is sufficient to refer to Carr [71] (part), [72] (part). In Carr itself there was a video recorded interview in which the admission was made, albeit an interview to which the accused had not consented. Here, of course, as in Yerkovich, there was no video record of the accused's exchange with the police officers at all.
83 Carr [71] (part), [72] (part) (footnotes omitted) is as follows:
In Yerkovich, the accused allegedly made unrecorded off-camera admissions, having refused to answer any questions during a videotaped interview. The State argued that the off-camera statements were admissible as there was a 'reasonable excuse' for the non-existence of a videotape, namely that the accused 'did not consent' to a videotaped interview. However, Roberts-Smith J ruled that the evidence was inadmissible: the exception in para (b) of s 570D(2) did not apply because the accused was never asked whether he did or did not consent to the interview being videotaped [56]. In this Court, counsel for the State accepted that 'did not consent' in s 570D(4)(c) means that an accused 'positively did not agree' to being videotaped.
This Court does not need to address the correctness of the ruling in Yerkovich or the response to it in this Court by counsel for the State: the essential point is that Yerkovich illustrates, contrary to the appellant's submissions, that para (b) of s 570D(2) and the question of consent within the meaning of para (c) of s 570D(4) come into play only in the absence of a videotape.
84 The written submissions for the State prior to the hearing as I understood them were that the reference in s 118(1) 'reasonable excuse' was capable of including circumstances where it was evident the accused would not have consented. Those written submissions were prepared on the basis, made express in them, that 'the Police did not ask the accused to go back on video' [10].
85 As I understood the State's written submissions, they were by reference to the inclusionary wording of s 118(1) 'reasonable excuse' giving that term wider application than the listed specifics, that is, 'reasonable excuse' otherwise, as I have called the matter. I will return to that reference below. No issue was taken, as I understood the position of counsel, with Robert-Smith J's view of s 118(1) 'reasonable excuse' (c) as described in Carr.
86 However, I do not consider I need to go into the matter of the State's written submissions any further at this point. That is because, as I have previously indicated, there was testimonial evidence from Officer Filgate as to his having offered the accused the opportunity to return to a recorded interview, an offer made both during the accused's exchange with the police officers and after that exchange. His evidence was further, as has been seen, that the accused responded that he did not want to 'dob' or 'dog' anyone in, and if police returned to a recorded interview, his conversation with them would end.
87 However, counsel for the defence did not at any point seek an adjournment when evidence of the kind I have just described was first given, as it was at the end of the examination-in-chief of Officer Filgate on the first day of hearing in response to the question whether he appreciated the significance of what the accused was telling him off camera. As I understood it, counsel for the State had previously notified counsel for the defence of the likelihood of such evidence. Further, counsel for the defence sought to meet that evidence as I will indicate. I would not regard the evidence so given as of no or lesser weight on the basis of its departure from the State's written submissions.
88 Counsel for the defence accepted he had not put to Officer Filgate the question whether the evidence just described was an accurate account or not, including whether or not it had been made up. However counsel for the defence put to me that that evidence should receive little or no weight because of the failure of Officer Filgate's witness statement to reflect that matter. Indeed, as I have previously indicated, neither exhibit 1 or exhibit 2 reflects that matter either, while Officer Tighe testified he could not recall it having been said, and had it been said, Officer Tighe would have liked to think it would have been recorded. There was no such record Officer Tighe had seen, on his testimony previously quoted.
89 I accept that, on the evidence before me, as counsel for the defence was putting to me, there should have been such a record of the exchanges as to having the accused return to a recorded interview.
90 However, in face of the clear and unshaken evidence of Officer Filgate, which was not seriously challenged, I am unable to accept the submission I should give that evidence of a request for consent that was declined no or insignificant weight. While I also note that Officer Filgate's evidence received no support from the evidence of Officer Tighe, who at best had 'a recollection' or a 'vague recollection' of an exchange between the accused and Officer Filgate concerning the taking of notes, I do not consider that gap in Officer Tighe's recollection to be fatal to giving Officer Filgate's evidence significant weight. In that regard, I note the evidence of the length of time both officers had been on duty, to which I will return, and the evidence as to the roles they respectively played in the exchange. That evidence is what appears from exhibit 2 considered with the evidence of Officer Filgate concerning the taking of notes during the accused's exchange with the police officers.
91 Further, although it was not in contest that the accused was affected by drugs and tired at the time of the accused's exchange with the police officers (a matter to which I return below), I did not understand it to be contended for the defence that the accused was incapable of giving consent within Criminal Investigation Act s 118(1) 'reasonable excuse' (c). It might then be concluded that the present is a case to which Criminal Investigation Act s 118(1) 'reasonable excuse' (c) applies to overcome the inadmissibility rule in s 118(3). This was a view to which I was initially attracted.
92 However, counsel for the defence put to me, as I understood him, that such a conclusion should not be arrived at in a case where admissions were made in circumstances in which there was sufficient evidence the accused had made his admissions in the belief that police were no longer gathering evidence for use in court, and indeed were not conducting investigations as to any participation by him in the offending. I call this the first defence submission against 'consent'.
93 Alternatively, counsel for the defence put to me, the admissions were made in circumstances where the police officers had not explored with the accused whether or not he was aware of the implications of making the admissions he might make. Whether or not the accused had the beliefs referred to in the previous paragraph, the police officers were required in the circumstances to conduct that exploration before Criminal Investigation Act s 118(1) 'reasonable excuse' (c) could be met. I call this the second defence submission against 'consent'.
94 For the purpose of the first defence submission against 'consent', my attention was drawn to the evidence of the tone of the accused's exchange with the police officers compared with the tone of the EROI, immediately after which the accused's exchange with the police officers had commenced. My attention was also drawn to the evidence of the concern of police with identifying others involved in the offending.
95 The evidence of the tone of the accused's exchange with the police officers relied upon was that it was a 'conversation' in which the accused was 'a lot more relaxed' than in the EROI: see for the first quotation the examination-in-chief of Officer Filgate, 13 March 2015, ts 17, and his cross-examination, ts 25, as well as the examination-in-chief of Officer Tighe, 13 March 2015, ts 44, and his cross-examination, ts 53; and for the second quotation the cross-examination of Officer Tighe, 10 April 2015, ts 76.
96 For the defence it was put to me, indeed, that the police had become tired having been on duty up to the commencement of the EROI for 10 to 12 hours (Officer Filgate: 13 March 2015, cross-examination, ts 30) and over 14 hours (Officer Tighe: 13 March 2015, examination-in-chief, ts 52).
97 Against that background, it was put to me, they could be seen to have resolved to continue their interview with the accused without the recording equipment being left on in the hope that the technique would be ruled admissible. They were doing so in circumstances where the accused had admitted in the EROI being under the influence of drugs and, like the officers, was tired, as was evident from what he said and his behaviour during the EROI.
98 I note, however, that as to the tiredness of the accused, he appears to have accepted that he had slept some six hours during the day before the interview, where he had previously indicated to the police officers he had not slept for four days.
99 Further, I note from my viewing of the EROI, the DVD of which was played before me and became exhibit 3, that the accused does not always appear to be as tired as he appears at the outset of the EROI. From time to time over the length of the EROI he appears to be quite alert and responsive: see in particular EROI ts 9 (correction of the name of his lawyer); ts 14 (correction of the start of his drug bender); and ts 70 (how he denies that he had robbed any one).
100 Of course, it must be noted that, by the end of the EROI, the accused had been involved in that process for over 2 1/2 hours. I accept that he was then at his most tired before his exchange with the police officers.
101 I further note that my attention was not directed to any question putting such an intentional course of action by the police officers to either of them. Further, it seems to me that the possibility of such an intentional course of action tends to be excluded by the way in which Officer Tighe brought matters to a close in the EROI as shown in the extended quotation from its transcript above.
102 True it is, however, that Officer Tighe in his cross-examination was asked if he had said to the accused that the accused's exchange with the police officers was off the record. However, Officer Tighe indicated he could not recall saying that at all, that he would not normally say such a thing and he did not recall Officer Filgate saying it (13 March 2015, cross-examination, ts 56). The matter was not further pursued with him. Officer Filgate was not asked a corresponding question.
103 As to the matter of police being concerned with the identification of others involved in the offending, I accept that there was indeed evidence of such a concern, from Officer Filgate (13 March 2015, cross-examination, ts 31) and from Officer Tighe (10 April 2015, cross-examination, ts 71). That evidence was not challenged.
104 However, I do not consider that evidence inconsistent with, or even tending strongly against, the conclusion that the police were not continuing the investigation, including the investigation of the participation of the accused in the offending, with the possibility of the use of results in court. I note in particular how the accused's exchange with the police officers was precipitated, as described above, by reference to the comment of Officer Tighe; and the evidence of Officer Filgate as to, at that point, investigating both the matters of the other offenders and the participation of the accused (13 March 2015, cross-examination, ts 31).
105 Accordingly, I do not accept the first defence submission against consent.
106 In view of my conclusion, and my reasons for it, I consider I do not need to explore the extent to which the first defence submission against consent is open on the proper construction of Criminal Investigation Act s 118(1) 'reasonable excuse' (c), or indeed of 'reasonable excuse' otherwise or of s 155.
107 I note in that respect the question raised by Owen J in respect of former Code s 570D in Murcott [40].
108 With respect to the second defence submission against 'consent', I have noted the following authority, which was not cited to me by either counsel for the purposes of the hearing, but which I found while considering my judgment after reserving judgment at the conclusion of the hearing on 10 April 2015. I then requested both counsel address me on it at the further hearing on 16 April 2015. That authority was Murcott. That decision was concerned with the admissibility of a hand written statement signed by the accused Johnston in which he made certain admissions. Those admissions were made during a prison visit by two police officers on 30 May 2003.
109 Owen J held the evidence was inadmissible as it was not video recorded and former Code s 570D(2)(c) did not apply.
110 His Honour referred to evidence from one of the police officers, a Detective Sergeant Standish, who had prepared the handwritten statement, that at the visit he had asked the accused whether he wanted to talk about the matter on video, to which the accused responded he did not want to go on video again (Murcott [32]). He had previously been on video in an interview conducted on 3 and 4 March 2003 (Murcott [36]). He also referred to evidence from that police officer that he had asked the accused why he had taken that position and further that the accused had mentioned something to do with legal advice, or something along those lines. Further, the police officer had made a note on his casebook to the effect that the accused had declined to go on video, although he did not record the reason the accused had given (Murcott [33] - [34]). The other police officer also gave evidence that the accused had said he did not want to participate in a video, but he indicated he could not remember whether there was a particular reason the accused gave for that position (Murcott [35]). Owen J found that although there were no video recording facilities at the prison there were alternative means that were reasonably available (Murcott [31], [49]).
111 His Honour also referred to evidence given by the accused on the matter. The accused testified he had not been expecting the police officers to speak with him on the occasion in question. He denied, as reflecting what was said, a number of matters appearing in the hand written statement (Murcott [19]). He also denied that there was any conversation about going on video and further denied at any stage having said he did not want to go on video. He also denied there was any conversation about receiving legal advice about giving a statement (Murcott [37] - [38]). The accused also testified, in response to a question from Owen J, that it was 'just possible' something might have been said about the video but the accused had not heard it (Murcott [39], source of quotation). From Owen J's reasons for his conclusion that the State had failed to persuade him on the balance of probabilities that there was a reasonable excuse for not recording the admissions on video, I note the following:
In particular I have not been persuaded that Johnston did not consent to the interview being videotaped. By 'consent' I mean a voluntary and fully informed agreement freely given to the course of conduct that is now impugned. There are several reasons why I have come to this conclusion. All of them involve, to a greater or lesser degree, Standish's knowledge of the importance of the video recording of evidence. I will not repeat it each time.
First, the evidence of Standish about Johnston's attitude was not particularly detailed. It really amounts to no more than a question to Johnston whether he wanted to talk on video, a negative response, a question asking why he didn't want to do so and a response 'he mentioned something to do with legal advice or something along those lines, but I can't remember'. Given the knowledge that Standish had as to the importance attached to a permanent video record on interview it is surprising that he left it at that. But that is the evidence. There is no evidence, for example, that Standish probed Johnston to ensure that he understood his rights or as to what may have been behind the decision. When I speak of 'his rights' I am not referring to the right to speak or to remain silent but rather to the statutory right, conferred by s 570D, to have the admissions recorded (subject, of course, to the exceptions).
The cautions that Standish delivered at the commencement of the video records of interview on 3 and 4 March 2003 should be contrasted with all of this. They are lengthy and comprehensive. Standish went to great lengths to ensure that Johnston understood that he had a right to decline to participate in the interview. Standish gave evidence that he was careful to eliminate the possibility of later allegations of threats or intimidation. Whatever, Standish's motivation the cautions were models of propriety. His evidence at the voire dire was that he administered a caution at the outset of the interview process on 30 May 2003. While the running sheet includes a note that a caution was administered there is no detail as to its content. And nor is their evidence that it was anything other than a standard caution to alert the interviewee of his right to speak or to remain silent. There is no evidence that during the caution the subject of a right to have a video recording of the interview was raised.
I should explain what I meant when I referred to an absence of 'probing' by the police officers when Johnston told them he did not want to go on video. Standish was not sure whether any reason had been given but he thinks something might have been said about legal advice. Leach could not recall any reason having been given. I will assume for the moment that Johnston did say he had legal advice not to go on video. I do not believe, in the circumstances of this case, that it would have been appropriate simply to take that answer at face value and move on. I accept that it would have been inappropriate for the police officers to have questioned Johnston about the content of the legal advice or the circumstances in which it was taken. But the fact remains that the legislation proceeds on the basis that interviews of this type will be recorded on video. It is implicit in the section that this is far and away the most desirable option. That being so I believe that it was incumbent on the police officers to ask such questions as might have been necessary to ascertain that Johnston understood not only that he had a right to utilise video technology but that it was the course the legislature deemed the most appropriate. If, armed with that knowledge, Johnston had confirmed the decision and consented to a form of interview different from that in which he had participated on 3 and 4 March 2003, then no objection could have been taken. In saying this I am not overlooking the fact that he had on one previous occasion signed a typed statement. But this did little more than repeat what had previously been recorded on video.
The other possibility on the evidence was that no reasons had been proffered by Johnston for refusing to go on video. If that was what happened then in my view the case for questioning of the decision is even stronger.
Secondly, there is no mention in the May statement (which Johnston signed) that he had been offered, and declined, an opportunity to have the interview recorded on video. In settling for another option it is surprising that Standish did not take the opportunity to include reference to Johnston's position on the video option in the handwritten statement.
Thirdly, there is no evidence that Standish made a written note in the running sheet that the reason Johnston proffered for not going on video was that he had taken legal advice. Again, I would have thought this would occur to the police officers as an important matter. It is particularly so as it represented something of a change of heart for Johnston. In March he had participated in four video records of interview after taking legal advice. The logic of him, at some time between March and May, having taken legal advice that he ought not to go on video when he was prepared to give and sign a written statement should have been explored. Standish's evidence on the proffering by Johnston of the reason for not going on video was not supported by Leach. I repeat what I said earlier. What should have been explored was whether Johnston had a real appreciation of his rights, not the content of the legal advice or the circumstances in which it was taken.
Fourthly, there is no evidence that the police officers took steps to have the admissions confirmed on video at a later time. All that occurred was the events of 23 June 2003. But that would not have cured the problem because the same questions would have arisen in relation to the typed version of the May statement.
Finally, I have the sworn evidence of Johnston that there was no conversation about video, he did not decline to go on video and he did not say he was declining to do so because of legal advice. While there were some aspects of Johnston's evidence that were not particularly appealing, in this respect what he said in evidence fitted with the objective history, particularly his previous willingness to be interviewed on video after legal advice and the fact that he recanted at what appears to have been the first available opportunity [57] - [65].
112 In the background to all of this was the ready availability of video facilities that could have been utilised.
113 I particularly note the importance attached by Owen J in Murcott to the consent for the purposes of former Code s 570D(4)(c) being both voluntary and 'informed'; as well as the content his Honour gave in that case to 'informed'.
114 It may be noted that in this case there was no evidence from either Officer Filgate or Officer Tighe that they had made any inquiries of the accused as to whether or not he had the understanding referred to in Murcott [60]. Indeed, there was evidence from Officer Tighe that he had not given the accused the caution in [59] (10 April 2015, cross-examination, ts 75).
115 Further, from exhibit 3 it is evident to me that Officer Tighe had in the EROI, at its commencement, given the accused cautions comparable to those Owen J highlighted in Murcott [59].
116 However, I should note this is not a case on all fours with Murcott. While it was not in dispute that it was practicable to record audiovisually what the accused said in the admissions and none of the other specifics listed in Criminal Investigation Act s 118(1) 'reasonable excuse' had any possible application, there was no evidence from the accused of denial of, or otherwise with respect to, the admissions, and no reason, on the evidence of the two police officers as to the reason given by the accused for a refusal to be recorded, calling for the 'logic' of his making admissions as he had to be explored by the police officers: compare Murcott [63].
117 Further, there was in Murcott, unlike this case, a significant separation in time between the prior video recorded interview, with the cautions it contained, and the making of the alleged admissions off-camera. And I accept there was a progression in the EROI of the accused's elaboration on what he was prepared to say had happened at the time of the incident in question without, however, any admission of involvement, which has no apparent parallel in Murcott.
118 At the same time, however, I note the contrast between exhibit 1 and exhibit 2 in this case, which were not prepared at the time of the accused's exchange with the police officers but a day later, and were not signed by the accused, with the handwritten and signed statement in Murcott.
119 In my view, the approach to 'consent' in Murcott is one I should follow. Further, doing so leads to me to uphold the second defence submission against 'consent'.
120 The approach to 'consent' in Murcott is in accord with the policy on the provision referred to in Floyd v The State of Western Australia [2013] WASCA 33 [39] referring to Carr [57] and Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1 [52] - [53], [131].
121 It is sufficient, in my view, to set out Carr [57], itself quoting from Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 [25] (footnotes omitted):
The public benefit in accurate video recordings is not limited to the recording of admissions by suspects. Legislation of the kind contained within Ch LXA of the Criminal Code exists in all Australian States. The broad purpose of such legislation was discussed by Gleeson CJ, Hayne and Heydon JJ in Kelly … In the absence of an accurate record of what occurred during police interviews, disputes could readily occur about the authenticity of any admissions said to have been made during such interviews, and about the propriety of the conduct of the police officers in question. Their Honours said … :
'The disputes could turn on questions not only of fabrication, but also of misunderstanding, misrecollection, coercion, or oppression in a broad sense. Considerable amounts of court time were taken up, generally in the absence of the jury, in resolving disputes about confessions. Considerable amounts of police time, too, were taken up in interviews slowly recorded by officers operating typewriters or writing in notebooks. Grave allegations were commonly made suggesting police perjury, brutality and pressure. Unfounded though many of these allegations may have been, they were damaging to public confidence in the criminal justice system. Over time the courts, law reform agencies and legislatures began to respond to this state of affairs. In particular, as audio recording became more common in commercial and social life, and as the necessary equipment became more efficient, easier to operate, and cheaper, it was increasingly suggested that, either as a matter of sensible practice or as a precondition to admissibility, police interviews in criminal investigations should be electronically recorded.'
123 On that approach, in this case it is of particular significance that there was no evidence of the two police officers attempting to ascertain that the accused understood not only that he had a 'right' to utilise video technology but that it was the course the legislature deemed the most appropriate. On that approach, it is also of significance, both that exhibit 2 does not refer at all to the matter of the accused refusing to give consent let alone his reasons for that refusal; and that Officer Tighe was not aware of any other record of those matters.
124 Of course, the matter is one of the application of Criminal Investigation Act s 118(1) 'reasonable excuse' (c) to the particular circumstances of this case. It is in the course of doing so I have noted the significance of the two matters referred to, in all the circumstances of this case.
125 I have concluded, because of the significance of those matters, that the exception in Criminal Investigation Act s 118(3)(b)(i), s 118(1) 'reasonable excuse' (c), to the inadmissibility rule is not made out.
Exception in Criminal Investigation Act s 118(3)(b)(i): 'reasonable excuse' otherwise
126 I note from Wright [55] the following, referring to Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196, which was an authority on former Code s 570D:
The definition of the expression 'reasonable excuse' is not in terms or effect exclusive. That is, there may be a reasonable excuse that does not fall within any of the paragraphs of the definition: Nicholls [3] [(Gleeson CJ)], [106] [(McHugh J)], [156] [(Gummow and Callinan JJ)], [218] [(Kirby J)], [342] [(Hayne and Heydon JJ)].
127 Nicholls in the paragraphs referred to indicates that the application of 'reasonable excuse' otherwise in former Code s 570D(4) was considered by each of the members of the High Court in that case. The majority who agreed that the evidence could not be admitted by reference to such a reasonable excuse appear to me to indicate that relevant to such a determination is the conduct of the police as well as the fairness or otherwise to the accused in permitting the admissions to be admitted [106]; and how far short of and different from the specifics was that which occurred [156], [218].
128 However, the circumstances in Nicholls were far different from this case. There the admissions were allegedly made during a toilet break called during a videotaped interview.
129 I also note Yerkovich on 'reasonable excuse' otherwise, in [123] - [124], quoting in [123] from Stapleton v The Queen [2002] WASCA 328 [24] - [25] (sic [26] and [27]) (Murray J, Steytler J & Fitzgerald AJ), in which, at [25], there is a statement that 'the effective and proper operation of the provision depends upon the judgment made against the background of the particular factual circumstances of the case as the trial Judge finds them to be'.
130 In Stapleton, the court held it was open to the trial judge to find that in the circumstances of that case that there was a ‘reasonable excuse' within former Code s 570D(4). Those circumstances were described in Yerkovich [123] as that the evidence was of admissions that had been volunteered and initiated by the appellant, in the context of a series of cautions having already been given to him and he clearly wished to confide in the investigating officer. In addition, I note the significance attached in Stapleton [24] to the view of the trial judge, considered to be open to him, that the accused would not have consented to going back on to an audiovisual record. The second and the fourth have a parallel here; but the first and third do not.
131 I have previously indicated that the State in its written submissions provided prior to the hearing appeared to me to rely on 'reasonable excuse' otherwise.
132 At the further hearing to consider Murcott, the State confirmed this reliance. In doing so, I understood the State to put the following matters to me, drawing on its written submissions.
133 The State put to me that, where there was no genuine dispute as to the accuracy of the record in exhibit 2 of what it says the accused said in the accused's exchange with the police officers, but where it was clear he would not consent to that exchange being recorded, a 'reasonable excuse' might be shown even if it was not within any of the specifics in Criminal Investigation Act s 118(1) 'reasonable excuse' (a) to (d).
134 The State laid emphasis for this purpose on the following:
• The lack of any challenge to the accuracy of that record so far as it went;
• The accused's clear indications in the EROI and at the beginning of the accused's exchange with the two police officers that he would not 'dob' or 'dog' anyone in; and
• The evidence of Officer Filgate as to the accused's reaction to Officer Filgate's indication of his preparations to take notes.
135 In respect of the first point, however, I should note that in cross-examination Officer Tighe was twice asked whether it was possible that he had recorded in the notes he compiled that the accused referred to the 'lady took photographs' because Officer Tighe knew the gender of the photographer, not because of how the accused had spoken of that person (13 March 2015, cross-examination, ts 57; and 10 April 2015, cross-examination, ts 70). Officer Tighe had previously referred to the accused's identification of the gender of the photographer as significant, and had remarked on that to the accused in the accused's exchange with the police officers, as I have previously indicated, as Officer Tighe did not recall having identified that gender in the EROI (13 March 2015, cross-examination, ts 56). Officer Tighe rejected that possibility of erroneous ascription on both occasions while accepting he had not recorded that part of the accused's exchange with the police officers.
136 In respect of the second point, I note that it is not addressed in exhibit 2 as a reason given by the accused why he did not wish to go back on to an audiovisual record; and there is no evidence of any other record in which it is addressed in those terms.
137 In respect of the third point, I note again that it is not addressed at all in exhibit 2; and there is no evidence of any other record in which it is addressed.
138 I have concluded 'reasonable excuse' otherwise is not made out here. I do so because of the observations I have made in respect of the points in the State's submissions, which go to the conduct of the police here; the likely physical condition of the accused at the conclusion of the interview as I have described it; the matters I addressed in respect of Criminal Investigation Act s 118(3)(b)(i), s 118(1) 'reasonable excuse' (c); and how far short the present case falls from any of the other specifics in s 118(1) 'reasonable excuse'.
Exception in Criminal Investigation Act s 118(3)(b)(ii): s 155(2)
139 It was common ground that the relevant authorities are in a case like this Wright [11] - [12], [41] (McLure P, Buss JA agreeing), [175] - [188], [206] - [211] (Blaxell J); Floyd [41] - [47] (McLure P, Newnes & Mazza JJA agreeing); and Wells v The State of Western Australia [2013] WASCA 124 [13] - [16], [28] - [31] (McLure P, Newnes & Mazza JJA agreeing).
140 From those authorities I extract the following principles as to the approach I should adopt in this case to Criminal Investigation Act s 155(2) and (3):
1. The discretion in s 155(2) is to admit otherwise inadmissible evidence, and is to be exercised by reference to the considerations in s 155(3), which are both mandatory and exhaustive: Wright [12].
2. The burden of persuading the court to exercise the discretion under s 155(2) rests on the prosecution; and to the extent its discharge rests on disputed questions of fact the prosecution must prove those on the balance of probabilities: Wright [188](d).
3. In relation to s 155(3)(a), favouring the admission of the evidence of the admissions is that it is not objected that the evidence is unreliable; however, matters of objection might include an objection based on common law grounds, such as unfairness to the accused from admission of the evidence: Wells [31]; Wright [183], [207].
4. In relation to s 155(3)(b), favouring the admission of the evidence of the admissions is the greater seriousness of the offence; and in assessing the seriousness of the offence account should be taken at least of the maximum penalty and where on the scale of seriousness the offending in the particular case may be placed: Wright [178] read with [117], [179], [208]; and Floyd [43].
5. In relation to s 155(3)(c) and (d), while the inadmissibility rule might be said not strictly to describe a 'contravention', it is treated as such for the purposes of (c) and (d): Wright [208].
6. Also in relation to s 155(3)(c) and (d), favouring the non-admission of the evidence of the admissions is the greater seriousness of the contravention; and in assessing such seriousness account should be taken of the matters in (d), with much greater weight to be given to the contravention if it was intentional or reckless than if it arose from an honest and reasonable mistake of fact; and in cases of a contravention not fitting within the categories in (d), such as carelessness, the court will assess its seriousness and give the factor such weight as it thinks fit: Wright [180]; and Floyd [44].
7. In relation to s 155(3)(e), the greater the probative value of the evidence, the greater the weight to be given to this factor as one favouring the admission of the evidence of the admissions; the probative value of the evidence of an admission will depend not only on the evidence's content and whether the admission can readily be established by other admissible evidence, but also on the evidence's reliability and unequivocalness; but by reason of s 155(4) the weight to be given to probative value can never be enough on its own to justify admission: see Wright [181], [209]; Floyd [45].
141 I note it is not suggested s 155(3)(f) has a role to play in this case.
Application of principles
142 As to s 155(3)(a), it was not objected that the evidence of the admissions, so far as it went, was unreliable, with the saving I noted above as to the gender of the photographer.
143 However, counsel for the defence referred to the incompleteness of that evidence, in respects which it ought to have recorded. I have already gone into those matters.
144 Further, for the accused it was objected that it would be unfair to the accused to admit the evidence, particularly given the accused's physical condition at the time. I have already gone into that matter.
145 Still further, I note the evidence of Officer Tighe concerning the desirability of recording the putting to an accused that he go back on an audiovisual record and that accused's response, and the lack of evidence of any such recording here.
146 As to s 155(3)(b), the offending was undoubtedly serious, by reference to the maximum penalty (see Floyd [43]), although in those terms not as serious as that in Wright (sexual penetration and murder). At the same time, I consider that the alleged offending by the accused here is some distance from the highest level of seriousness of offending of its type, given the role the accused is alleged to have played in it.
147 As to s 155(3)(c) and (d), for the reasons given in relation to Criminal Investigation Act s 118(1) 'reasonable excuse' (c) and 'reasonable excuse' otherwise the 'contravention of this Act in obtaining the evidence' was a serious matter. It might be noted in particular it did not involve spontaneous admissions made without prior warning and without police questioning him about the events in question.
148 At the same time, I accept that the 'contravention' cannot in my view be readily described as either intentional or reckless. However, it was at the least careless, in a way made more serious by the evidence from Officer Tighe as to the desirability of recording what occurred in relation to any attempt not to contravene the inadmissibility rule.
149 As to s 155(3)(e), it was not in serious contest the evidence had significant probative value, at least to the extent of going to the allegation of the accused's involvement, not as a principal offender, but as an aider.
150 In my view, on balance, taking account of all the mandatory considerations in s 155(3), and weighing all the relevant factors emerging from that accounting, the desirability of admitting the evidence of the admissions that the prosecution seeks permission to lead is outweighed by the undesirability of admitting that evidence.
Conclusions
151 I have determined that the inadmissibility rule in Criminal Investigation Act s 118(3) prevents the admission of the evidence of the admissions which the prosecution seeks permission to lead unless either s 118(3)(b)(i) or (ii) is met.
152 I have concluded I have not been shown that Criminal Investigation Act s 118(3)(b)(i) is met. This is because I have not been shown either s 118(1) 'reasonable excuse' (c) or 'reasonable excuse' otherwise is met.
153 I have also concluded for the purposes of Criminal Investigation Act s 118(3)(b)(ii) that I am not satisfied in the terms of s 155(2).
154 Thus, the inadmissibility rule in Criminal Investigation Act s 118(3) prevents the admission of the evidence of the admissions the prosecution seeks permission to lead.
155 Thus, I would not grant the prosecution's application.
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