The State of Western Australia v QMT (pseudonym initials)
[2025] WADC 48
•15 AUGUST 2025
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- QMT (pseudonym initials) [2025] WADC 48
CORAM: WALLACE DCJ
HEARD: 7, 8 & 30 APRIL 2025 WITH FURTHER EVIDENCE FILED ON 7 MAY 2025
DELIVERED : 15 AUGUST 2025
FILE NO/S: IND KAL 4 of 2024
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
QMT (pseudonym initials)
Catchwords:
Evidence - Admissibility of evidence obtained in the execution of a Misuse of Drugs Act 1981 (WA) search warrant - Whether earlier breaches of the Criminal Investigation Act 2006 (WA) create an impugned chain of causation - Whether information obtained by police is a 'thing relevant to an offence' - Proper interpretation of s 154 of the Criminal Investigation Act 2006 (WA) - Bunning v Cross discretionary considerations - Admissibility of evidence of admissions - Voluntariness - Whether detention unlawful - Whether reasonable opportunity to communicate with a legal practitioner was afforded - Whether discretion to exclude voluntary admissions should be exercised on grounds of unfairness and/or public policy - Whether discretion to admit evidence should be exercised pursuant to s 155 of the Criminal Investigation Act 2006 (WA) - Application for permanent stay
Legislation:
Criminal Investigation Act 2006 (WA)
Criminal Procedure Act 2004 (WA)
Misuse of Drugs Act 1981 (WA)
Road Traffic Act 1974 (WA)
Result:
Application to exclude evidence of search of residential premises dismissed
Application to exclude evidence of accused's second interview with police on 5 July 2023 granted
Application that the prosecution of the charge be stayed permanently dismissed
Representation:
Counsel:
| Applicant | : | Ms C G Crouch |
| Accused | : | Mr N Scerri |
Solicitors:
| Applicant | : | Director of Public Prosecutions |
| Accused | : | Scerri Legal |
Case(s) referred to in decision(s):
Aliraja v Susan Dukes, Commissioner of Titles [2025] WASCA 103
Allen v Director of Public Prosecutions (WA) [2014] WASC 67
Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54; (1978) 19 ALR 641
Duke v The Queen (1989) 180 CLR 508
Jago v The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23
Kelly v The State of Western Australia [2017] WASCA 221
Luo v The Queen [2020] WASCA 184
Martin v The State of Western Australia [2008] WASC 105
Mukevski v The State of Western Australia [2010] WASCA 138
R v Buchanan [1966] VR 9
R v Swaffield (1998) 192 CLR 159
The State of Western Australia v Gammell [2022] WASC 201
TVM v The State of Western Australia [2007] WASC 299
Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278
Wright v The State of Western Australia [2010] WASCA 199
Table of Contents
Introduction
Evidence received by the court during the voir dire
Sergeant Milan Sobot
Detective Senior Constable Michael Le Poidevin
Senior Constable Marcus Scott
Senior Constable Amarinder Narang
The accused
Application to exclude evidence obtained at Westminster property
Position of applicant/defence
Position of the State
Determination
Application to exclude the accused's second electronic record of interview
Position of defence
Unlawful detention of the accused
Reasonable opportunity to communicate or to attempt to communicate with a lawyer
Whether the interview was voluntary
Court's discretion to exclude a voluntary confession
Discretion to admit the evidence pursuant to s 155 of the Criminal Investigation Act 2006 (WA)
Position of the State
Unlawful detention of the accused
Reasonable opportunity to communicate or to attempt to communicate with a lawyer
Whether the interview was voluntary
Court's discretion to exclude a voluntary confession
Discretion to admit the evidence pursuant to s 155 of the Criminal Investigation Act 2006 (WA)
Determination of application to exclude the evidence of the second interview conducted with the accused
Unlawful detention of the accused
Reasonable opportunity to communicate or to attempt to communicate with a lawyer
Whether the interview was voluntary
Court's discretion to exclude a voluntary confession
Discretion to admit the evidence pursuant to s 155 of the Criminal Investigation Act 2006 (WA)
Application for permanent stay
Position of defence
The State's position
Determination
Orders
WALLACE DCJ:
Introduction
It is useful before coming to the application itself to set out by way of overview relevant procedural matters and undisputed facts.
By indictment dated 4 July 2024, the accused was initially charged with the following four counts:
1.On 4 July 2023 at Eucla [the accused] had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another
And that the offence involved a trafficable quantity of methylamphetamine.
2.On the same date and at the same place [the accused] had in his possession a prohibited drug, namely cocaine, with intent to sell or supply it to another.
3.On the same date and at the same place [the accused] had in his possession a prohibited drug, namely heroin, with intent to sell or supply it to another.
4.On the same date at Westminster [the accused] had in his possession a prohibited drug, namely cocaine, with intent to sell or supply it to another.
On 18 March 2025 the State applied to discontinue counts 1 - 3 and to file a new indictment dated 18 March 2025 containing one charge which was, originally, count 4.
The court granted the discontinuance and received the new indictment on 7 April 2025.
The application made by the State was appropriate in all the circumstances and reflected several reasonable concessions recognising a number of contraventions of the Criminal Investigation Act 2006 (WA) (the CIA) by Western Australian police officers involved in this case. This is elaborated upon below in summarising relevant undisputed background facts arising from a voir dire conducted before the court on 7 April 2025.
On 4 July 2023, Acting Officer in Charge at the Eucla police station, Sergeant Milan Sobot, was travelling on Eyre Highway heading towards the Eucla police station when he observed a Range Rover sports vehicle driving through the area. Sergeant Sobot pulled his vehicle over and made a call to Senior Constable Amarinder Narang who was travelling together with Senior Constable Marcus Scott, both then stationed at the Eucla police station, and who were conducting patrols on the Eyre Highway. Sergeant Sobot thought the presence of a Range Rover sports vehicle on the Eyre Highway was unusual and indicated to Senior Constable Narang that it should be pulled over.[1]
[1] ts 45 - 46.
The accused's vehicle was stopped by Senior Constables Narang and Scott at approximately 10.53 am whilst it was travelling west on Eyre Highway, Eucla, approximately 40 km from the Eucla townsite.[2] The accused was the driver of the vehicle and a female companion was sitting in the front passenger seat.
[2] Prosecution Brief (PB) page 1, witness statement of Marcus Ashley Scott dated 7 November 2023, pars 3 ‑ 5.
As conceded by Sergeant Sobot during his evidence, there is no lawful basis upon which police officers are authorised to stop a vehicle on a mere whim simply because it may look out of place.[3] Whilst s 66 and s 66A of the Road Traffic Act 1974 (WA) authorise police officers to call upon drivers of motor vehicles to stop the vehicle and wait as directed for the purpose of a drug and alcohol test, which was in fact performed on the accused, it is uncontroversial that the accused's vehicle was not stopped for that reason.
[3] ts 69.
Senior Constable Scott conducted a preliminary breath test on the accused which produced a negative result. Senior Constable Narang then formed a decision to search the vehicle. He did not have a reasonable suspicion which would have lawfully enabled him to do so pursuant to either s 38 and/or s 39 of the CIA and/or s 23 of the Misuse of Drugs Act 1981 (WA) (MDA).[4]
[4] ts 116.
Whilst Senior Constable Narang asked the accused if he could look inside the vehicle and the accused agreed, he failed to provide informed consent in compliance with s 30 of the CIA.[5] The State concedes that the search which then proceeded was unlawful.
[5] ts 117.
During the search of the vehicle Senior Constable Narang located packages which he suspected to contain prohibited drugs. As a result, Senior Constable Scott arrested the accused and his female companion on suspicion of the sale or supply of a prohibited drug, and they were informed that they had a right to make a telephone call to a friend or family member or a lawyer but that the right was going to be withheld at that stage.[6]
[6] ts 101.
Senior Constable Scott contacted Sergeant Sobot and appraised him of the situation and Sergeant Sobot relayed, at the direction of the Border Operations Squad, that they were not to provide the right to communicate to other people to the accused or his female companion.[7]
[7] ts 47 (Sobot), ts 101 (Scott); PB page 241, witness statement of Douglas Stjepic dated 7 March 2025, par 4; Exhibit 3.
Sergeant Sobot attended at the location and conducted preliminary testing on the packages utilising a TruNarc Test in order to validate whether they may contain a quantity of illicit substances.[8] Sergeant Sobot also arranged for a tow truck to transport the vehicle to the Eucla police station.
[8] ts 118.
The accused and his female companion were transported by police officers to the Eucla police station where they were detained in cells.
In the late afternoon, Sergeant Sobot, whilst awaiting the arrival of detectives with the Drug and Firearm Squad from Perth, became concerned that the accused would need to be released at 5.01 pm once his detention period had expired. He therefore raised with others, including Detective Senior Sergeant Stjepic, of the Border Operations Squad, the need for an Authority to Extend Detention to be prepared pursuant to s 140(4) of the CIA.[9]
[9] ts 47.
Subsequently, the Authority to Extend the Detention was prepared and executed by Sergeant Sobot at 4.30 pm[10] which authorised the continuing detention of the accused for a further period of six hours concluding at 11.01 pm. The State concedes that the purported authorisation to extend the detention of the accused was unlawful and in breach of s 140 of the CIA on the basis that Sergeant Sobot was not a 'senior officer' for the purposes of that provision. That is because a 'senior officer' could not be involved in the investigation of any offence that the suspect was suspected of having committed ie the 'senior officer' needed to be independent of any involvement in the relevant investigation.
[10] Exhibit 1.
Clearly, Sergeant Sobot was not a 'senior officer' for the purposes of s 140 of the CIA because he had directed that the accused's vehicle be stopped for the purposes of a search, he liaised with other officers in relation to the ongoing investigation of the accused including those from the Drug and Firearm Squad and Border Operations Squad, he had conducted a TruNarc preliminary drug test on the substances seized from the accused's vehicle, he had arranged for transportation of the accused's vehicle to the Eucla police station for the purposes of further investigations and had conducted a handover to detectives upon their arrival from Perth. Sergeant Sobot's decision therefore that he was sufficiently independent to authorise the extension of the detention of the accused in all the circumstances was a clear breach of s 140 of the CIA.
At approximately 5.00 pm, Detective Senior Constable Michael Le Poidevin and Detective Sergeant David Law, stationed with the Drug and Firearm Squad, conducted a search of the accused's vehicle at the Eucla police station, which was video recorded. The accused was present throughout the search and questioned by Detective Senior Constable Le Poidevin. The State concedes that further breaches of the CIA occurred at this stage of the investigation by Detective Senior Constable Le Poidevin failing to provide the accused with his rights, pursuant to s 137 and s 138 of the CIA, in their entirety. In particular, the accused was not informed of his right to communicate with a lawyer. Detective Senior Constable Le Poidevin informed the accused that he was withholding his right to make a telephone call.[11] Detective Senior Constable Le Poidevin experienced difficulty, when giving evidence at the voir dire, in explaining the reason for the serious oversight.[12]
[11] ts 91.
[12] ts 95.
It is unnecessary for the purposes of determining the application before the court to identify in any detail the result of the search of the accused's vehicle, other than to note that illicit substances were located within the vehicle which founded counts 1 ‑ 3 on the indictment dated 4 July 2024.
The actions of Detective Senior Constable Le Poidevin prevented the accused from exercising his entitlement to communicate with a lawyer and/or to be afforded a reasonable opportunity to communicate with a legal practitioner. During that interview the accused made a number of admissions.
The State accepted that it was not reasonably arguable that the desirability of admitting the impugned evidence in relation to the search of the accused's vehicle and his initial electronic record of interview with police, which it accepted were obtained in contravention of the CIA, outweighed the undesirability of admitting the evidence. Without the impugned evidence, the State conceded that there was no reasonable prospect of conviction in relation to counts 1 ‑ 3 on the indictment dated 4 July 2024.
At approximately 7.00 pm on 4 July 2023, Detective Sergeant Law contacted Detective Sergeant Jonathan Macmillan, stationed with the Drug and Firearm Squad, informing him that there had been a traffic stop conducted in Eucla which had resulted in a large quantity of illicit drugs being located. Detective Sergeant Macmillan was tasked with compiling grounds upon which an application for a search warrant at the Westminster home address of the accused could be made.[13] Detective Sergeant Macmillan reviewed the Western Australia Police intelligence holdings in relation to the accused and the Westminster address. After conducting that review, together with the information provided to him by Detective Sergeant Law, he formed a suspicion that items may be located at that address that may provide evidence in relation to offences contrary to the MDA.[14]
[13] Witness statement of Jonathan Macmillan dated 2 May 2025, pars 8 ‑ 12.
[14] Witness statement of Jonathan Macmillan dated 2 May 2025, pars 15 and 16.
Detective Sergeant Macmillan then attended at a Justice of the Peace and swore the grounds for the MDA search warrant for the Westminster residence at approximately 8.35 pm.[15]
[15] Witness statement of Jonathan Macmillan dated 2 May 2025, par 19.
As a result of the search conducted at the Westminster property, police located 253.6 g of cocaine that is the subject of the sole charge brought against the accused on indictment dated 18 March 2025.
At 12.05 am on 5 July 2023, Detective Sergeant David Moore and Detective Alex Wong, both stationed with the Drug and Firearm Squad, conducted a second electronic record of interview with the accused at the Eucla police station.[16]
[16] Exhibit 4.
At the commencement of that interview, the accused was arrested on suspicion of possessing a prohibited drug with intention to sell or supply in respect to the illicit drugs seized at the Westminster property. It was made clear to the accused by Detective Sergeant Moore that as a charged person he was being held in custody for 'something else' (namely the seizure of illicit drugs located in the vehicle being driven by the accused earlier in the day).[17] The following exchange took place in relation to the accused's right to communicate with a legal representative:[18]
[17] PB page 167, transcript of the electronic record of interview conducted with the accused by police on 5 July 2023, page 4.
[18] PB page 168, transcript of the electronic record of interview conducted with the accused by police on 5 July 2023, page 5.
DET SGT MOORE: Now, I'll just go through your rights again. Um, you can make a phone call to a … legal practitioner. Did you want to make a phone call to a lawyer?
[QMT]: Not at the moment.
DET SGT MOORE: Do you want us to find you one?
[QMT]: No.
DET SGT MOORE: Up to you, mate. It's your legal right. You don't have to, but if you want me to find someone I can. It might be a bit hard at midnight, but - - -
[QMT]: That's all good.
DET SGT MOORE: All right. Um, did you want to make a phone call to a friend or family member?
[QMT]: No.
DET SGT MOORE: Not now? They're ongoing rights, mate. At some point if you - during the interview, you want us to do those things, I've got a mobile phone in my pocket. We can make it happen, okay? …
During that interview the accused made a number of admissions in relation to the cocaine seized by police at the Westminster property, including stating that:
1.He had lived at the property since 2018. He had lived there by himself, but a friend had recently started living at the address.[19]
2.The crystal substance located by police in a Beats box is cocaine.[20]
3.The accused planned to use the cocaine for party stuff.[21]
4.The accused used cocaine to party with friends.[22]
5.The accused's housemate did not know about the cocaine.[23]
[19] PB page 169, transcript of the electronic record of interview conducted with the accused by police on 5 July 2023, page 6.
[20] PB page 171, transcript of the electronic record of interview conducted with the accused by police on 5 July 2023, page 8.
[21] PB page 171, transcript of the electronic record of interview conducted with the accused by police on 5 July 2023, page 8.
[22] PB page 172, transcript of the electronic record of interview conducted with the accused by police on 5 July 2023, page 9.
[23] PB page 172, transcript of the electronic record of interview conducted with the accused by police on 5 July 2023, page 9.
The interview with the accused concluded at 12.16 am and by 12.50 am the accused had been charged in relation to the illicit drugs seized both from the vehicle and the Westminster property and his bail had been refused.[24]
[24] ts 91 - 92 (Le Poidevin).
The contentious issues for determination by the court is the question of the admissibility of the evidence obtained by police pursuant to the execution of a search warrant at the Westminster property and the admissibility of the second electronic record of interview conducted with the accused by police on 5 July 2023, during which he made a number of admissions.
The applicant applies pursuant to its application dated 8 August 2024 (as amended orally on 7 April 2025) for the following orders to be made:
1.An order excluding evidence of the search of the Westminster property on 4 July 2023 on the basis that the evidence was obtained improperly, pursuant to s 154 of the CIA.
2.An order excluding evidence of the accused's interview conducted with police on 5 July 2023 on the following grounds:
(a)the accused was unlawfully detained;
(b)the accused was not afforded a reasonable opportunity to communicate or attempt to communicate with a legal practitioner, pursuant to s 138(2)(c) of the CIA;
(c)the accused's admissions made to police were not made on a voluntary basis;
(d)or if deemed voluntary, that the court should exercise its discretion to exclude the electronic record of interview on the basis that admitting it would be unfair to the accused and/or that public policy considerations make admission of the evidence unacceptable.
3.An order pursuant to s 90 of the Criminal Procedure Act 2004 (WA) (CP Act) that the prosecution of the charge be stayed permanently.
Evidence received by the court during the voir dire
Sergeant Milan Sobot
Sergeant Sobot gave evidence of being a police officer for approximately 14 years. In July 2023 he had been stationed at the Eucla police station for approximately three months, and he was the acting officer in charge of that station.
On 4 July 2023 it was Sergeant Sobot who first observed the Range Rover sports vehicle being driven by the accused on Eyre Highway at approximately 10.30 am. It appeared out of place for that location which prompted Sergeant Sobot to contact Senior Constable Narang to alert him to the vehicle so that it could be pulled over. Sergeant Sobot conceded that there was no lawful basis on which police could stop a vehicle simply because it looked out of place.[25] He gave evidence that his intention in communicating to Senior Constable Narang was for the officers to stop the vehicle, ascertain who was driving it and have a conversation with that person, and if reasonable, search the vehicle.[26]
[25] ts 69.
[26] ts 71.
Sergeant Sobot subsequently received a call from officers Scott and Narang informing him that they had found drug‑related items in the accused's vehicle. This prompted Sergeant Sobot to make initial calls to relevant units including the Drug and Firearm Squad and the Border Operations Squad. Upon speaking with Detective Senior Sergeant Stjepic, Sergeant Sobot was advised not to provide the right to communicate with other people to the accused and his female companion. Sergeant Sobot denied that there was a 'blanket' direction that the rights to communicate were always withheld in situations of suspected large drug seizures but indicated that it was a case-by-case basis.[27] He was evasive when answering questions regarding training sessions run by detectives with the Drug and Firearm Squad where such a direction was likely to have been communicated.[28]
[27] ts 74.
[28] ts 75.
Body worn camera footage of Sergeant Sobot during the day captures him talking to a detective, most likely Detective Senior Sergeant Stjepic, in which Sergeant Sobot states '… I've done the old, ah … you know, yeah, all done, yeah, you know, I'm Yugoslav' followed by laughter.[29] Sergeant Sobot denied the proposition put to him in cross‑examination that he was referring to the improper withholding of the accused's rights.[30] Sergeant Sobot stated that he was referring to the CIA and was simply making 'a joke with a mate'.[31] Sergeant Sobot referred to it as an example of the sort of 'dark sense of humour between police officers'.[32] The explanation of the evidence in my view was oblique and unsatisfactory.
[29] Exhibit 5.
[30] ts 78.
[31] ts 81.
[32] ts 81.
Given that the accused was arrested at 11.01 am Sergeant Sobot was aware that his period of detention would expire six hours later at 5.01 pm. Sergeant Sobot understood that prior to the expiration of the six‑hour detention period, if police wished to continue to detain the accused, an extension by a senior officer would need to be authorised. Sergeant Sobot was questioned during the voir dire regarding his knowledge as to the requirements of obtaining an extension of detention, and he gave the following evidence:[33]
So it needs to be an independent person that needs to review it and do it, and hence why I asked somebody from that office to do it. It ended up being quite close with times cos I didn't get a reply, I didn't get any phone calls. So I followed it up and I spoke to - again it was either Senior Sergeant Stjepic, or one of the other Drug and Firearms ops managers, and they hadn't actually organised anything from what I got from the conversation with them. And given the area where I worked, Eucla, there wasn't exactly anybody else that I could sort of lean on, or ask for help. So by that point in time, I was concerned that we were about to go over time, and what we would have to do, if that makes sense.
… And so you signed the form yourself? --- Yeah. So I reviewed the form. Didn't see any issues as a result of reviewing it to not approve it, if that makes sense. Yeah.
[33] ts 48.
Sergeant Sobot was questioned by the State prosecutor and then cross‑examined by defence counsel regarding his understanding that a senior officer must be independent and thus not be involved in the relevant investigation. In my view, Sergeant Sobot was not forthright in the answers he provided to that line of questioning in what appeared to be a relatively futile attempt to defend his decision to authorise the accused's extension of detention.
Despite conceding that he had signed authorities to extend detention previously, in circumstances where he had no involvement in the relevant investigations and despite knowing that the power to extend the period of detention required the senior officer to be independent,[34] Sergeant Sobot nevertheless attempted to construct an artificial scale of independence. This way he could meet the requirement of independence by positioning himself somewhere on the continuum of independence ie slightly involved in an investigation so as to be not be entirely independent but nevertheless meeting the legislative requirement by shades of degree.[35] Sergeant Sobot, eventually and somewhat reluctantly, conceded that he authorised himself to extend the detention period of the accused under the artificial guise of a modicum of independence.[36]
[34] ts 53.
[35] ts 61.
[36] ts 57.
Ultimately, during cross-examination Sergeant Sobot accepted that he was just plugging up gaps in the system because he did not believe that it was appropriate to release the accused and therefore the end justified the means.[37]
Detective Senior Constable Michael Le Poidevin
[37] ts 65 - 66.
Detective Senior Constable Le Poidevin was stationed at the Drug and Firearm Squad in July 2023 and travelled from Perth to Eucla on 4 July 2023 in the late afternoon in order to conduct a search of the accused's vehicle, during which he also conducted an audiovisual record of interview with the accused.
Detective Senior Constable Le Poidevin accepted in his evidence that he did not communicate at the time of his interview with the accused that he had a right to communicate with a friend, family member or a lawyer. He simply informed the accused that he had a right to communication which was being withheld at that time.[38] It is unclear to the court the basis on which the withholding of the right to communicate to a lawyer would have arisen pursuant to s 138(4) of the CIA.
[38] ts 91.
Detective Senior Constable Le Poidevin gave evidence that upon his attendance at the Eucla police station he received a handover from Sergeant Sobot and he was informed that the accused's period of detention had been extended. Whilst during evidence Detective Senior Constable Le Poidevin could not recall seeing the signed authority, he accepted that he would have asked to see it and that it would have been shown to him.[39] Detective Senior Constable Le Poidevin could not adequately explain why he did not provide the accused his rights in their entirety, pursuant to s 137 and s 138 of the CIA.[40]
[39] ts 93 - 94.
[40] ts 94 - 95.
Detective Senior Constable Le Poidevin was a credible witness and on the basis of his evidence, his breaches of the CIA appeared to be inadvertent and accidental, perhaps based on assumptions he had made that the accused had already been provided his rights to communicate during the day through officers stationed at the Eucla police station.[41] Those assumptions however did not negate his obligation to afford the accused with a reasonable opportunity to attempt to communicate with a legal practitioner prior to questioning him (particularly in circumstances where he was aware or ought to have been aware based on Exhibit 3 that the right had been withheld earlier).
Senior Constable Marcus Scott
[41] ts 94 - 95.
At the time of giving evidence, Senior Constable Scott had been a police officer for 30 years and in July 2023 was based at the Eucla police station, having been there at that time for approximately 18 months.
On 4 July 2023, Senior Constable Scott was conducting patrol duties together with Senior Constable Narang on Eyre Highway. During the morning, Senior Constable Narang received contact from Sergeant Sobot to the effect that there was a suspicious vehicle heading their way and they were to conduct a vehicle stop.
Upon stopping the vehicle, Senior Constable Scott conducted a preliminary breath test on the accused which returned a negative result.[42] Senior Constable Narang then had a discussion with the accused in regard to searching the vehicle which Senior Constable Scott was not privy to. Senior Constable Narang then searched the vehicle and identified bags which contained what appeared to be an illicit drug. He gave the accused and his female companion their suspect rights and informed them that their right to communicate would be withheld at that time.[43]
[42] ts 100.
[43] ts 101.
Senior Constable Scott contacted Sergeant Sobot to relay what had happened, and he was informed that the direction from the Drug and Firearm Squad was that the accused persons were not able to contact anyone until they arrived.[44]
[44] ts 101.
Senior Constable Scott gave what appeared to be very candid evidence during cross‑examination including that Eucla police stop 80% of vehicles because 'it's our job, we're the entry into WA',[45] irrespective of having any lawful basis to do so. Senior Constable Scott admitted that it is a regular practice in the region to stop vehicles given that Eucla is the highest drug diversion police station in the State.[46] Senior Constable Scott gave evidence that police are given targets for the number of vehicles they are required to stop, which in Eucla was approximately 5,500 vehicles per year.[47]
[45] ts 104 and ts 107.
[46] ts 106.
[47] ts 107.
Senior Constable Scott also gave evidence that from time to time, detectives from the Drug and Firearm Squad would attend at Eucla to provide training during which they were instructed that if they searched a vehicle and found substantial quantities of illicit drugs, they were to automatically withhold the occupant's right to speak to a lawyer until the detectives from Perth arrived and took over the investigation.[48] Senior Constable Scott interpreted the reason for the direction being concerns that lawyers could potentially interfere with the investigation.[49]
[48] ts 105.
[49] ts 109.
Senior Constable Scott was cross‑examined about whether the accused, while in the cells, had asked if he could speak to a lawyer, to which Senior Constable Scott responded, 'you will, you will'. He conceded that it was very possible that occurred but he had no independent recollection given the passage of time.[50]
[50] ts 112.
Senior Constable Scott gave evidence that the accused received one meal whilst in custody, although he could not recall the timing of the provision of the meal.[51]
Senior Constable Amarinder Narang
[51] ts 112 - 113.
Senior Constable Narang gave evidence that he joined the police force in February 2014 and was currently stationed at Highway Patrol in Midland. In July 2023 he was stationed at the Eucla police station.
In the morning on 4 July 2023, he was on patrolling duties of Eyre Highway with Senior Constable Scott when he received a phone call from Sergeant Sobot advising him of a Range Rover heading in their direction. Sergeant Sobot told him that the vehicle looked a little odd and asked him to have a look at it.
Senior Constable Narang accepted that he did not have a reasonable suspicion to search the vehicle.[52] Senior Constable Narang gave evidence that he asked to search the vehicle, and the accused provided his consent, although conceded that he did not inform the accused that he had a right to refuse to consent.[53] After locating suspicious packages in the vehicle, Senior Constable Narang gave evidence he afforded the accused and his female companion their suspect rights and advised the accused he had the right to make a phone call to a friend, family member or lawyer, which was being withheld at that time.
[52] ts 116.
[53] ts 117.
Senior Constable Narang was cross‑examined extensively in relation to his understanding as to the powers of police to stop and search vehicles in circumstances where police required consent of the driver. Whilst Senior Constable Narang was candid and forthright in his answers, his evidence concerningly portrayed a very clear ignorance of the need for police officers to obtain informed consent. Indeed, Senior Constable Narang gave evidence that he believed if a driver refused to consent to a search of their vehicle it was appropriate to engage in methods of relatively strenuous persuasion in order for the driver to be convinced to agree.[54] It is of course a deeply concerning matter when police officers who are tasked with patrolling our roads are completely ignorant of significant provisions such as s 30 of the CIA which requires informed consent to be obtained prior to an officer conducting a search of a vehicle. Ironically, although Senior Constable Narang gave evidence that drivers could always decline to have their vehicles searched, he never advised drivers of their lawful right to decline (despite being legislatively mandated to do so) and indeed on the one occasion when a driver declined to provide their consent, Senior Constable Narang refused to accept the response and debated the matter with the driver until they acquiesced.[55]
[54] ts 121 - 123.
[55] ts 123.
Senior Constable Narang gave evidence that police officers stationed at the Eucla police station were directed by the officer in charge to target vehicles for drugs, money and/or weapons because Eucla is a hot spot.[56] However, he denied there being a general rule of withholding an arrested suspect's right to communicate with a lawyer in cases of suspected large drug seizures.[57]
The accused
[56] ts 122.
[57] ts 125.
The accused elected to give evidence at the voir dire.
The accused gave evidence that he asked to speak to a lawyer whilst he was on the side of the road on Eyre Highway. He gave evidence that he made the request to Senior Constable Scott and was told that he would be provided the opportunity to contact a lawyer once they reached the Eucla police station and when the investigating officer arrived from Perth.[58] The accused gave evidence that he asked Senior Constable Scott two more times for access to speak to a lawyer, on both occasions he was in the cells, and he was told that it would happen.[59]
[58] ts 132.
[59] ts 133.
The accused described in evidence that during his detainment at the Eucla police station he was inside an enclosed bricked cell with no natural light and he was unable to see outside of the cell. Whilst in the cell he was provided with a bottle of water and a burger sandwich. At no stage prior to his interview at midnight was the accused given an opportunity to speak to a lawyer.
The accused gave evidence that during his initial interview on 4 July 2023 he answered questions asked of him by Detective Senior Constable Le Poidevin because he felt that he had to as he was not given the opportunity to speak to somebody or seek advice.[60]
[60] ts 134.
In relation to the second interview conducted with the accused by police on 5 July 2023 he stated that at the time he was feeling tired and hungry. He estimated that he received one burger sandwich at approximately 2.00 pm or 3.00 pm and one bottle of water. He felt tired because he found it difficult to sleep in the cell because there was only a metal bed and it was particularly cold and uncomfortable.[61] The accused gave evidence that he did not ask for a lawyer at the midnight interview because he had already made the request three times earlier in the day and although he had been told that he would be given the opportunity, it did not eventuate. In any event the detective told him that it would be difficult to find a lawyer given the lateness of the hour.[62]
[61] ts 135 - 136.
[62] ts 136.
In cross-examination the accused conceded that during the interview he was asked if he was too tired to speak to the detectives and he told them just to get it done and when he was asked whether he was hungry, or thirsty, he denied that he was. The accused also conceded that at the end of the interview he agreed that he had answered all questions of his own free will.[63] The accused accepted that he also confirmed that he had not been threatened to participate or promised anything during the interview.[64] The accused conceded that he was not too tired to participate in the interview, nor was he too hungry.[65]
[63] ts 140 - 141.
[64] ts 141.
[65] ts 141.
The accused was cross‑examined on why he did not request to speak to a lawyer during the midnight interview. He gave evidence that he had given up by that stage because he did not believe that the offer was genuine because he had already asked three times and been told that it would happen, yet no opportunity was availed to him. He had also been interviewed earlier by police during which he was not offered the opportunity to speak to a lawyer. In the circumstances, the accused believed that he was being told that he had an opportunity to speak to a lawyer but that the offer was not in fact a genuine one.[66]
[66] ts 143.
In the circumstances the accused believed that police were only affording the opportunity to him to contact a lawyer in the middle of the night, rather than during the day when he had made numerous requests, because it was not in fact an authentic offer.[67]
[67] ts 146.
Application to exclude evidence obtained at Westminster property
Position of applicant/defence
The defence submits that whilst the search conducted by police at the Westminster property was undertaken in accordance with a search warrant lawfully obtained pursuant to the MDA, nevertheless the evidence seized during the execution of the warrant was obtained improperly due to the operation of s 154 of the CIA. That provision relevantly provides as follows:
154. Evidence obtained improperly
(1)In this section -
authorisation includes a warrant and an order.
(2)If in the purported exercise of a power conferred by this Act or by an authorisation issued or purportedly issued under this Act -
(a)a thing relevant to an offence is seized or obtained; and
(b)a requirement of this Act in relation to exercising the power or issuing the authorisation, including a requirement that arises before or after the exercise of the power or the issue of the authorisation, is contravened,
any evidence derived from the thing referred to in paragraph (a) or from the exercise of the power is not admissible in any criminal proceedings against a person in a court unless -
(c)the person does not object to the admission of the evidence; or
(d)the court decides otherwise under section 155; or
(e)if the power exercised was exercised in relation to a protected person (as that term is defined in section 73), the court is of the opinion that the contravention arose out of a mistaken but reasonable belief as to whether the person was a protected person.
Defence contends that the information police derived from the unlawful traffic stop of the accused's vehicle and its initial search (namely that there were prohibited drugs inside the vehicle) is 'a thing relevant to an offence' as the information is a thing that may 'afford evidence relevant to proving the commission of an offence'.[68] Relevantly, 'a thing relevant to an offence' is defined in s 5(2) of the CIA to include material or non‑material, animate (other than human) or inanimate.
[68] Section 5(1)(d)(i) of the CIA.
Alternatively, defence appear to also submit to the court that the evidence could be excluded by the court's inherent discretion to do so.[69] Defence submits that the position at common law is that if there is a chain of causation between unlawfulness and the resulting obtaining of evidence, the court is conferred with the discretionary power to reject the evidence.[70] Defence submit that there is a clear chain of causation between the initial unlawful stop and search of the accused's vehicle and the subsequent application for the MDA search warrant which was then executed on the Westminster property. Defence invites the court to find that on the basis of the unlawful search of the accused's vehicle, a chain of causation has been established, as the tainted derivative evidence grounded the application for a search warrant in respect of the Westminster property. As such, defence contends that the proper approach is for the court to exclude the evidence by applying the Bunning v Cross discretionary factors.
Position of the State
[69] Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54; (1978) 19 ALR 641.
[70] Applicant's outline of submissions in support of application for evidence to be excluded and for a permanent stay of proceedings dated 31 January 2025, par 115.
The State submits that the search executed at the Westminster property was lawfully conducted following a search warrant being validly obtained pursuant to s 24 of the MDA. The State submits that the search warrant was obtained not only on the basis of the identification of suspected illicit drugs inside the accused's vehicle but was also on the basis of other matters identified through police intelligence.[71]
[71] Witness statement of Jonathan Macmillan dated 2 May 2025, pars 15 and 16.
The State therefore submits that the evidence obtained from the search at the Westminster property was located following the execution of a valid MDA search warrant which stands alone from the search undertaken by police officers of the accused's vehicle at Eucla, which was conducted pursuant to the CIA.[72]
[72] State's outline of submissions in an application to admit evidence dated 25 April 2025, pars 5 and 6.
Further, the State submits that s 154 and s 155 of the CIA do not apply in circumstances where the power exercised was not conferred by the CIA, but was rather exercised pursuant to s 24 of the MDA.
Alternatively, the State submits that 'information' derived from the unlawful traffic stop of the accused's vehicle is not a 'thing relevant' to the offence on the indictment, namely the illicit drugs seized at the Westminster property. The State submits that a 'thing relevant to an offence' does not extend to police information or intelligence that may ground a suspicion that drugs may be elsewhere. The State drew the court's attention to the authority of Wright v The State of Western Australia[73] in which Blaxell J gave the following obiter in relation to the purpose of the meaning of 'thing relevant to an offence':
… The underlying purpose of this extended meaning was explained by the Attorney‑General in the course of debate on the Bill as follows:
It is an all‑encompassing definition that is designed to ensure that the powers and duties that are contained in the bill are sufficiently broad to encompass any thing in a practical sense that may be either evidence or the content of evidence. That is the most practical way in which this could be interpreted. For instance, the content of evidence might be the distance between two things. There might well be other things that are not necessarily material. In essence 'thing' means anything that is relevant to an offence. It is difficult to draw limits on the meaning of 'thing' but it is meant to convey the idea that it is very broad in its application (Hansard 1728).
[73] Wright v The State of Western Australia [2010] WASCA 199 [168].
In that decision the court found that a DVD disc containing an audiovisual record of interview of an accused was a 'thing relevant to an offence' because it afforded evidence relevant to establishing the commission of an offence and who committed the offence. The court found that the interview itself (as distinct from the DVD) was a non‑material 'thing relevant to an offence' drawing comparison with the visibility from a window which likewise was a non-material thing of evidentiary value.[74]
[74] Wright v The State of Western Australia [170].
The State therefore submits that the information obtained when the accused was stopped by police at Eucla, which then gave rise (in part) to the decision of police to seek a MDA search warrant, is not 'evidence' or 'the content of evidence'. In the State's submission it is mere information to be pursued/explored rather than a material or non‑material evidentiary 'thing'.
Determination
I address firstly defence's contention that the evidence obtained by the search of the Westminster property by police was improperly obtained pursuant to s 154 of the CIA.
The submissions made by the parties require the court to engage in a task of statutory interpretation. The parties did not direct the court's attention to any authorities regarding the principles of statutory construction and nor were they required given that the principles are well settled.
Those principles were referred to recently by his Honour, Quinlan CJ in Aliraja v Susan Dukes, Commissioner of Titles:[75]
[75] Aliraja v Susan Dukes, Commissioner of Titles [2025] WASCA 103 [23] - [25].
23The principles of statutory construction are well settled. Statutory construction involves the attribution of meaning to statutory text. The Court's task in that regard must begin and end with the statutory text as a whole, considered in its context, including its objectively discerned statutory purpose.
24As to the last matter, statutory purpose, French CJ, Hayne, Kiefel, Gageler and Keane JJ, said in Thiess v Collector of Customs:
Objective discernment of statutory purpose is integral to contextual construction. … For:
'it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.'
25The statutory purpose of legislation may be discerned from an express statement of purpose in the statute, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose must be discerned from what the legislation says, as distinct from any assumptions about the desired or desirable reach or operation of relevant provisions.
(footnotes omitted)
In my view the purported reliance by defence on s 154 of the CIA is misplaced. The evidence which defence wishes to exclude as improperly obtained is the quantity of cocaine seized during the search of the Westminster property. It is that evidence which defence asserts has been improperly obtained. It is not disputed by defence that the cocaine was seized following the execution of a validly and lawfully obtained search warrant pursuant to the MDA. Defence appears to be attempting to tarnish the propriety of the search conducted at the Westminster property effectively via a back door entry through s 154 of the CIA. Defence attempts to do so by submitting that information obtained by the Eucla police officers was obtained improperly in the purported exercise of power conferred by the CIA and the evidence obtained at the Westminster property was derived from that information so improperly obtained.
It is not in dispute in this matter that police first became appraised of the suspected presence of illicit substances in the accused's vehicle due to an unlawful search of the vehicle in breach of s 30 of the CIA. As a result it was conceded by the State that the evidence obtained in the purported exercise of power pursuant to the CIA was improperly obtained and the charges brought against the accused in respect of that evidence were discontinued.
Defence wishes to extend the application of s 154 of the CIA beyond the purported exercise of a power conferred by the CIA to the subsequent validly and lawfully exercised powers pursuant to a different statute, namely the MDA. I am unaware of any such broad application previously being given to s 154 of the CIA. Therefore, what defence appears to be contending for reflects a significant departure from that provision's current application and interpretation.
In my view the defence position is not supported by the ordinary and natural meaning given to the wording of the statutory provision when it is considered in its proper context, and when one considers its objectively discerned statutory purpose.
When considering the ordinary and natural meaning of the language employed in s 154 of the CIA together with its statutory context, what appears to be clear is that it begins and ends with powers derived and exercised within the framework of the CIA. In that regard I note:
(a)the objective intention of the provision is to govern the purported exercise of a power conferred by the CIA or by an authorisation issued or purportedly issued under the CIA;[76]
(b)any 'thing relevant to an offence' that is seized or obtained in the purported exercise of a power conferred by the CIA or by an authorisation issued or purportedly issued under the CIA from which evidence is derived is prima facie inadmissible unless certain criteria are met (and thus those statutory criteria must be applicable to govern the relevant exercise of power in question);[77] and
(c)one of the exceptions is if the court decides otherwise pursuant to s 155 of the CIA, which mandates that the court takes into account the seriousness of the contravention of the CIA 'in obtaining the evidence' and whether any contravention of the CIA in obtaining 'the evidence' was intentional or reckless or arose from an honest and reasonable mistake of fact.[78]
[76] Section 154(2) of the CIA.
[77] Section 154(2) of the CIA.
[78] Section 154(2)(d), s 155(3)(c) and s 155(3)(d) of the CIA.
What the above illustrates is that s 154 of the CIA clearly and objectively intends to make prima facie inadmissible any evidence obtained or derived from a thing seized or obtained in an unlawful purported exercise of a power or authorisation conferred by or issued under the CIA. Nowhere within the framework of the provision does it provide for evidence derived from a thing relevant to an offence which is obtained through the lawful exercise of a power conferred by a different legislative instrument. If that were the intention, then the legislature in my view would have expressly stated that intention. Indeed, if the interpretation submitted by defence were correct, it would render s 154(2)(d) nugatory because s 155 requires the court to exercise its discretion to admit the evidence obtained by a contravention of the CIA. As I mentioned earlier, the evidence which defence submits is inadmissible is the cocaine which was seized by police as a result of the execution of a search warrant validly obtained pursuant to the MDA. That evidence was clearly not obtained in contravention of the CIA. Therefore, s 155 could have no application, which further sways against the interpretation of s 154 of the CIA advanced by defence.
Further support for the position that the CIA does not intend to govern the exercise of powers derived from other statutory bodies is provided by s 6(1) of the CIA:
6. Other written laws, this Act's relationship with
(1)Unless the contrary intention appears in this Act or another written law -
(a)this Act does not affect the operation of any other written law; and
(b)the powers conferred by this Act on a person are in addition to and do not derogate from any powers conferred on the person by any other written law.
In my view if the CIA intended to have application to the MDA, which was in existence before the CIA was enacted, then it would be expressly provided within the framework of the statute. I also note that the MDA has not in any of the amendments enacted since the CIA came into effect, expressly provided for any of the provisions of the CIA to apply to powers conferred and exercised pursuant to that legislation.
Therefore, in my view the CIA has no application to the search warrant executed at the Westminster property and the defence's application to exclude the evidence obtained as a result of the execution of that warrant is unsuccessful on that basis.
I turn now to consider the alternative submission made by defence that in any event the court ought to exercise its discretion to exclude the evidence obtained at the Westminster property by virtue of the Bunning v Cross factors. In my view there cannot be an alternative basis contended that the court ought to exercise its discretion to exclude the evidence upon application of the principles enunciated in Bunning v Cross. As is self‑evident that authority developed five considerations which serve as guides to the way in which the court's residual discretion falls to be exercised when considering whether evidence which has been unlawfully obtained ought to nevertheless be admitted.[79] Given that I have found that the evidence was obtained lawfully, there is no inherent jurisdiction to exclude.
[79] Bunning v Cross (78) - (80).
If I am incorrect in my view and the exercise of the power by police in the execution of the search warrant obtained pursuant to the MDA was invalid or unlawful or the evidence improperly obtained, then in any event I would not have exercised my discretion to exclude the evidence obtained. On application of the five principles established by Bunning v Cross, I would have reached that conclusion for the following reasons:
(a)the initial search undertaken by Senior Constable Narang of the accused's vehicle was as a result of his mistaken belief that he was entitled to do so and had obtained the required consent from the accused;
(b)the evidence seized from the Westminster property was seized following obtaining a valid search warrant which was lawfully executed pursuant to the MDA;
(c)the reasonable grounds upon which the search warrant executed at the Westminster property was based extended beyond the information derived from the unlawful search of the accused's vehicle by Senior Constable Narang and included unrelated matters sourced through police intelligence;
(d)the nature of the unlawfulness in the case does not affect the cogency of the evidence seized at the Westminster property;
(e)Eucla police officers could have relatively easily complied with the provisions of the CIA rather than exercising powers in contravention of its provisions;
(f)the evidence before the court suggests that none of the police officers involved in the subsequent search of the accused's vehicle at Eucla police station and in obtaining the MDA search warrant for the Westminster property had any knowledge of the unlawfulness of the stop and initial search of the accused's vehicle;[80] and
(g)the accused has been charged as a result of the evidence obtained at the Westminster property with a very serious charge which carries a maximum statutory penalty of 20 years imprisonment.
[80] Witness statement of Jonathan Macmillan dated 2 May 2025, pars 10 - 13; witness statement of David James Law dated 7 May 2025, pars 7 - 12; ts 95 - 96 (Le Poidevin).
Thus, in my view the Bunning v Cross factors do not weigh against the admissibility of the evidence and if I am in error in my interpretation of s 154 of the CIA, in any event I would not have been persuaded to exercise my discretion to exclude the purported impugned evidence.
Application to exclude the accused's second electronic record of interview
Position of defence
The defence submits that there are a number of bases upon which the court is able to make an order excluding evidence of the accused's second interview with police conducted on 5 July 2023 as follows:
(a)at the time that the interview was conducted the accused was unlawfully detained in breach of s 140 of the CIA;
(b)at the time of the interview the accused had not been afforded a reasonable opportunity to communicate or to attempt to communicate with a legal practitioner in breach of s 138(2)(c) of the CIA;
(c)on the basis of involuntariness;
(d)if the admissions made during the interview are deemed to be voluntary, the court should exercise its discretion to exclude the admissions on the basis that to admit them would be unfair to the accused and/or that public policy considerations make the admission of the evidence unacceptable; and
(e)the mandatory considerations set out in s 155(3) of the CIA do not weigh in favour of the court exercising its discretion to admit the evidence.
Unlawful detention of the accused
In concise terms the defence submits the following:
(a)extension of the accused's detention purportedly made by Sergeant Sobot was not authorised by a 'senior officer' as mandated by s 140 of the CIA and thus the purported extension of the accused's detention was invalid and his detention from 5.01 pm onwards was unlawful;
(b)further, the purported extension of the accused's detention concluded at 11.01 pm, and the second interview was conducted with the accused at 12.06 am on 5 July 2023, namely, after the purported extension of detention had expired; and
(c)contrary to the submission of the State that by the time of the second interview the accused had been charged in relation to the illicit drugs found in his vehicle and his bail refused, the oral evidence of Detective Senior Constable Le Poidevin was that by 12.50 am the accused had been charged in relation to the drugs seized from the vehicle and the Westminster property and his bail had been refused.[81]
Reasonable opportunity to communicate or to attempt to communicate with a lawyer
[81] ts 91 - 92.
The defence submits that the accused was not provided with a reasonable opportunity to communicate or to attempt to communicate with a lawyer for the following reasons:
(a)prior to the second interview being conducted with the accused, he was only informed once by Senior Constable Narang that he had a right to communicate with a lawyer but that the right was being withheld;
(b)during the first interview conducted by Detective Senior Constable Le Poidevin, in contravention of the CIA, the accused was not informed of his right to communicate with a lawyer and neither was a reasonable opportunity afforded to him to do so or to attempt to do so;
(c)the accused asked on three separate occasions to speak to a lawyer and on each of those occasions he was not afforded any opportunity to do so. Those requests were made during the course of the day at times when it would have been practically feasible to contact a legal practitioner; and
(d)the second interview was conducted shortly after midnight and whilst Detective Sergeant Moore informed the accused that he could make a telephone call to a legal practitioner he eroded the offer by informing the accused that it 'might be a bit hard at midnight'[82] which effectively rendered the opportunity illusory.
[82] PB page 168, transcript of the electronic record of interview conducted with the accused by police on 5 July 2023, page 5.
Defence submits that it is appropriate in the circumstances of this case for the court to look at the totality of the conduct of the police culminating in the second interview being conducted with the accused when considering whether the accused was afforded a reasonable opportunity to communicate or to attempt to communicate with a legal practitioner.
Alternatively, if the court decides that it is restricted to considering whether the accused was afforded that opportunity as an arrested suspect in relation to the evidence obtained from the Westminster property, defence submits that given the timing of the second interview and the comments made by Detective Sergeant Moore as to the difficulty of being able to contact a legal practitioner given the late hour, that the accused was not in those circumstances afforded a reasonable opportunity to communicate or to attempt to communicate with a legal practitioner.
Whether the interview was voluntary
Defence submits that when the court looks at the totality of the circumstances, it ought to conclude that the admissions made by the accused in the second interview were not made voluntarily and that his will was overborne given the following matters:
(a)the interview was conducted shortly after midnight after the accused had been detained for 13 hours;
(b)the accused had been detained in a brick enclosed cell with no natural light, no views of the outside world, including the Eucla police station itself, which contained only a metal bed;
(c)on the accused's evidence he was given one meal at approximately 2 pm or 3 pm on 4 July 2023 comprising a burger sandwich and a bottle of water. At the time of the interview he was therefore hungry;
(d)during the 13-hour detention the accused struggled to sleep given the conditions of the cell and by the time of the second interview he stated in his evidence that he was extremely tired, rating his tiredness a 9 or 10 out of 10; and
(e)the accused had not been afforded the ability to speak to family, friends or with a legal practitioner and therefore believed that those rights were nugatory, and he should therefore participate in the interview in the hope of the situation coming to a conclusion.
Court's discretion to exclude a voluntary confession
Alternatively, defence submits that the court ought to exclude the voluntary admissions made by the accused in exercising its residual discretion to do so on two bases, firstly, that to admit the evidence would be unfair to the accused and, secondly, that public policy considerations make admission of the evidence unacceptable.
In relation to the first basis defence draws the court's attention to the following:
(a)the accused had, by the stage of the second interview, been in custody for 13 hours without any opportunity to communicate or attempt to communicate with a legal practitioner despite requesting the ability to do so on three separate occasions;
(b)if the accused had not been unlawfully detained by the deliberate actions of Sergeant Sobot to extend his period of detention, the accused would have been unconditionally released from custody whereupon he would have spoken with a legal practitioner following which, defence submits, the court can infer that he would have been advised not to answer any further questions asked of him by police. In this context, defence submits that the deliberate unlawful extension of the accused's detention together with the refusal to provide him with an opportunity to attempt to speak with a lawyer weighs heavily against the admission of any confessional material obtained by police during the second interview; and
(c)the accused was held for an extensive period of time in unacceptable conditions where he was afforded very little to eat or drink and given no ability to rest sufficiently in order to exercise independent free will, which was further eroded by the circumstantial futility of his ongoing detention and the conditions thereof.
In relation to the public policy considerations, defence submits to the court that the totality of the circumstances of this case speak overwhelmingly, based on policy considerations, to the exclusion of the second electronic interview. This is because, defence submits, that one could not find a clearer example of, whether intentional, reckless or indifferent, abuse of police powers to such an extent to diminish, if not extinguish, an individual's statutory rights to a fair and proper process. In this regard defence submits to the court that this case is one of the clearest examples of noble cause corruption wherein police attempt to produce what they consider to be a just outcome through unjust means. Defence submits to the court this is self-evident when one considers the totality of the fundamental breaches of the CIA and other legislative statutes which set the framework, boundaries and conditions in which police are to exercise their powers in order to prevent the interference with the rights of members of our community including:
(a)the accused's vehicle was stopped without a lawful basis to do so. Senior Constable Scott admitted in his evidence that this was normal practice at the Eucla police station;
(b)the accused's vehicle was searched by Senior Constable Narang without a lawful basis and in circumstances where he failed to obtain informed consent to do so. Based on the evidence of Senior Constable Narang, he believes that police are able to search any vehicle by persuading the driver that it is a justifiable exercise of power and indeed the duty and responsibility of police officers to do so. Senior Constable Narang appeared to have no knowledge whatsoever of the mandatory requirement of s 30 of the CIA, namely the very power that entitled him to search the accused's vehicle and the prerequisite conditions enabling him to do so;
(c)the accused's right to a reasonable opportunity to communicate to or attempt to communicate to a legal practitioner was withheld from him for a period of 13 hours in breach of s 138 of the CIA;
(d)during the accused's first interview he was not informed of his rights pursuant to s 137 and s 138 of the CIA, in particular his right to communicate to a legal practitioner. Detective Senior Constable Le Poidevin could not adequately explain the serious omission and breach of the CIA;
(e)the accused's detention was purportedly unlawfully extended by Sergeant Sobot. Defence submits that Sergeant Sobot did so intentionally with full knowledge that he was not independent and therefore was not a senior officer in a position to authorise the accused's extension of detention. Defence submits this was a blatant and contemptuous disregard for the accused's rights;
(f)the invalid purported extension of the accused's detention expired at 11.01 pm. Nevertheless, detectives and police officers at Eucla police station continued to unlawfully detain the accused; and
(g)at the time of the second interview the accused had been detained, largely unlawfully, in circumstances where he was denied the ability to speak to anyone including family, friends or a legal practitioner. Nevertheless, detectives formed the view that it was appropriate to interview him after midnight at a time when it was clearly known to them that it would have been practically impossible to contact a legal practitioner, and this was essentially communicated by detectives. Defence submits it was self-evidently an illusory offer made at that stage.
Discretion to admit the evidence pursuant to s 155 of the Criminal Investigation Act 2006 (WA)
Defence submits that if the court determines that the evidence obtained during the second interview conducted with the accused by police is not admissible, the court ought not to exercise its discretion to admit the evidence because in the defence's submission there were numerous contraventions of the CIA which defence submits were largely either intentional or reckless and which seriously undermined the rights of the accused to a fair and proper process.
Position of the State
Unlawful detention of the accused
The State initially conceded in its submissions filed with the court on 27 March 2025 that the accused was unlawfully detained at the time of the second interview and therefore the admissions contained in that interview were prima facie inadmissible in criminal proceedings by operation of s 154 of the CIA. On that basis the State submitted that the court ought to admit the impugned evidence pursuant to s 155 of the CIA on a finding that the desirability of admitting the evidence outweighed the undesirability of admitting it.
At the voir dire the State changed its position and submitted to the court that at the time that the second interview was conducted with the accused he was not unlawfully detained because at that stage the accused had been charged in relation to the illicit substances located in his vehicle and bail had been refused. Whilst the State concedes that it is unclear the precise time that the accused had his bail refused, the State relies on the witness statement of Detective Senior Constable Le Poidevin that the accused was charged and his bail refused after his female companion's interview was completed, which concluded at 10.02 pm.[83]
Reasonable opportunity to communicate or to attempt to communicate with a lawyer
[83] PB pages 42 and 43, witness statement of Detective Senior Constable Le Poidevin dated 18 October 2023, pars 14 - 16; PB page 217, transcript of the electronic record of interview with accused's female companion by police on 5 July 2023, page 43.
The State submits that the admissions contained in the second electronic record of interview were not obtained in contravention of the CIA because at that point the accused had been cautioned and afforded the opportunity to speak with a lawyer pursuant to s 138(2) of the CIA. The State submits that the CIA requires only that police officers afford an accused person the right and where they expressly or impliedly indicate that they do not wish to exercise the right, in the context of a reasonable opportunity of exercising that right, no further time is required.[84]
[84] In this regard the State referred to the authority of Wright v The State of Western Australia [34].
In addition, the State submits that the accused's belief in the genuineness of police when he was afforded the opportunity to speak to a lawyer is irrelevant to a consideration by the court as to whether s 138(2) of the CIA has been complied with.
Whether the interview was voluntary
The State submits to the court that there is no proper foundation on which the court could find that the admissions made by the accused during the second interview conducted with him by police were not voluntary. In this regard the State relies on the following:
(a)there is no evidence before the court that the accused did not understand the caution that was afforded to him, namely that he had a right to speak or to stay silent which was an ongoing right;
(b)during the interview the accused informed police that he was not too hungry or thirsty to participate in the interview and whilst he informed them that he was a little bit tired he nevertheless wanted to proceed with the interview;[85]
(c)the accused agreed at the conclusion of the interview that he had not been threatened to participate and had not been promised anything in relation to his participation in the interview;[86]
(d)the accused admitted during cross‑examination that he did not inform police that he was hungry at the time of the second interview conducted with him and he conceded that he was not too tired to participate in the interview;[87]
(e)even if the accused was hungry and/or tired at the time of the second interview which impacted his capacity to judge whether to answer the questions asked of him by police, it is insufficient to justify the court reaching a conclusion that confessional statements made by the accused are involuntary in the legal sense;[88] and
(f)none of the circumstances relied upon by defence are so extreme as to justify the court concluding that he was unable to voluntarily participate in the interview conducted with him and, rather, the circumstances support a conclusion being reached by the court that the accused was fully informed of his right not to speak to police but chose of his own volition to answer their questions.
Court's discretion to exclude a voluntary confession
[85] PB page 167, transcript of the electronic record of interview conducted with the accused by police on 5 July 2023, page 4.
[86] PB page 173, transcript of the electronic record of interview conducted with the accused by police on 5 July 2023, page 10.
[87] ts 140 - 141.
[88] In this regard the State relies on the authority of The State of Western Australia v Gammell [2022] WASC 201 [186] in which Fiannaca J referred to Sholl J's judgment of R v Buchanan [1966] VR 9, 15.
In relation to the unfairness discretion, the State submits that despite the earlier breaches of the CIA on 4 July 2023, the interrogation in the second interview conducted by police with the accused proceeded according to the statute. The State submits that there is nothing in the interview to give cause for concern about the reliability of the answers given by the accused.
In relation to public policy, the State accepts the unchallenged evidence that the accused asked to speak to a lawyer on three occasions before he was interviewed for a second time by police. However, the State submits that the statutory framework was complied with at the time of the second interview. It took place late at night, on the State's submission, due to the dynamic nature of an ongoing police investigation and notes that the CIA does not prohibit an interview taking place in the late hours of an evening, or after a person has been held in custody for a period of time in relation to a separate matter.
Further, the State notes that there is no evidence before the court of threats, duress or intimidation towards the accused throughout his period in detention. The State submits that during the interview conducted by police with the accused he acknowledged that the interview could be later played in court and, thereafter, he freely answered questions asked of him. The State submits to the court that there is no evidence that he was not exercising his free choice to speak, or that his period of detention prior to his second interview disabled him from recollecting and reliably recounting his involvement in the alleged offence.
Discretion to admit the evidence pursuant to s 155 of the Criminal Investigation Act 2006 (WA)
If the court decides that the evidence obtained during the second interview conducted by police with the accused is inadmissible, then the State applies to admit the disputed evidence pursuant to s 155 of the CIA.
The State acknowledges that the onus is on the State to move the court to exercise its discretion. The State submits that the court ought to be persuaded to admit the evidence taking into account the following considerations:
(a)The alleged offence is a serious drug offence carrying a maximum statutory penalty of 20 years' imprisonment. Ordinarily, if an accused is convicted of this type of offence a term of immediate imprisonment is inevitable.
(b)The probative value of the evidence obtained is high because the admissions tend to prove that the accused committed the offence with which he has been charged given that they are full admissions to possession and supply of the cocaine. The State's case primarily relies on the admissions because there is no DNA evidence and the residential property was occupied together with another person.
(c)Whilst the State accepts that the detention provisions of the CIA are important and have been enacted for good reason, the State nevertheless submits that this is not a case where the accused's will was overborne by persistent questioning. Rather, the State submits that he was appropriately cautioned and advised of his rights at the commencement of the interview and there is no reason to believe that the admissions made by the accused were false or unreliable and no undue pressure was placed on him in order to answer questions asked of him.
(d)Sergeant Sobot, who ostensibly authorised the extension, was of an appropriate rank and it was only his previous involvement in the investigation that disqualified him from being able to lawfully authorise the extension. The other requirements relating to the extension of detention were complied with.
(e)Sergeant Sobot made efforts to comply with the legislation and his decision to authorise the further detention period simply reflects poor judgement on his behalf on the basis that he believed the extension would not be completed unless he did it himself.
(f)The State submits that the court ought to take into account as a relevant factor that Sergeant Sobot was working from an isolated police station with limited support.
(g)There is no evidence before the court to suggest that if the extension request had been made to a senior officer in compliance with the requirements of the CIA that the extension would not have been approved.
(h)There is no evidence before the court that the admissions made by the accused during the second interview were not made voluntarily.
(i)There is no evidence before the court that the admissions made by the accused during the second interview were obtained as a result of unlawful conduct or other misconduct on the part of police.
Determination of application to exclude the evidence of the second interview conducted with the accused
Unlawful detention of the accused
The first basis upon which defence relies in order to exclude the evidence obtained by police during the second interview conducted with the accused is that he was unlawfully detained at the time that the interview was conducted with him.
It is not in dispute that the purported extension of the accused's detention contravened s 140 of the CIA. The accused was therefore being unlawfully detained from 5.01 pm onwards. Whilst the purported extension of detention expired at 11.01 pm that matter carries little weight given that the extension itself was invalid. The crucial issue is the timing of the accused being charged in relation to the illicit substances located in the vehicle he was driving, and his bail being refused. Given the significance of this factual matter I set out in detail below the evidence before the court in relation to it.
Detective Senior Constable Le Poidevin, in his witness statement provides the following:[89]
14.At about 10.45 pm I conducted an electronic record of interview (EROI) with accused two, a copy of which I now produce.
15.At the conclusion of that EROI I conducted a review of the investigation and preferred charges against accused one and accused two.
16.I refused both of the accused's bail, who were remanded in custody at Eucla Police Station.
[89] PB pages 42 - 43, witness statement of Michael Douglas Owen Le Poidevin dated 18 October 2023, pars 14 ‑ 16.
Detective Senior Constable Le Poidevin gave evidence at the voir dire as follows:[90]
[90] ts 91 - 92.
And it's the case, isn't it, that by 12.50 pm, [the accused] had been charged in relation to the drugs seized from the vehicle and the house in Perth and his bail had been refused?---Yes.
[Defence counsel]: I missed the time that was put forward then. Is that 12.50 pm or am?
[Prosecutor]: am.
So just because of the timing - so in terms of the paperwork, I might ask you a couple of procedural things, officer, because, frankly, I've got no idea. When you take someone to a station to charge them just as a generic police officer, if I can use that phrase, the charging process, without going into the history of the world, can you tell us briefly what happens?---Yeah. Obviously there's a review of evidence, whatever that may be.
Yes?---The investigating officer makes the decision to charge. They go to the accused and they say 'I am now charging you with' whatever it is. … From there, it's now on the IO to consider bail or releasing that person to other means, if someone's juvenile, whatnot.
And to the best of your memory, what time do you - well, I should say before that: do you recall giving something to that effect to [the accused], saying something to that effect?---Yes.
All right. And what time are you - do you put on that, in terms of when you recall it happening? Was that what you said before, about the 12.50 am?---That - that is the timing that I've taken … off the Form 5 that I've seen this morning.
Okay. All right. And the Form 5, that's a bail form I think?---Yeah. Form 5, bail refused.
(emphasis added)
It is not in dispute that the interview police conducted with the accused's female companion concluded at 10.02 pm. However, there is no evidence before the court that the accused was charged and his bail refused immediately upon conclusion of that interview.
In my view, based on the oral evidence of Detective Senior Constable Le Poidevin, the accused was charged and his bail refused at 12.50 am. I make this finding because Detective Senior Constable Le Poidevin gave that evidence having refreshed his memory by reviewing the Form 5 which presumably recorded the fact that the accused's bail was refused at 12.50 am. It is unclear to me in those circumstances how the State can submit to the court that the accused was charged and his bail refused prior to the second interview being conducted with him. There is no evidence to support that submission before the court.
Therefore, I find that at the time that the second interview was conducted with the accused he was unlawfully detained. Prima facie therefore, the evidence obtained by police as a result of conducting that interview with the accused is inadmissible in any criminal proceeding by operation of s 154 of the CIA. If I am wrong in relation to that finding it is appropriate that I address the other bases on which defence contends that the evidence obtained by police during the course of the second interview ought to be excluded. I now turn to consider each of those bases.
Reasonable opportunity to communicate or to attempt to communicate with a lawyer
I accept that there were numerous breaches of the CIA in relation to affording the accused a reasonable opportunity to communicate with a legal practitioner which then impacted on the accused's subjective views about the genuineness of the rights afforded to him at the commencement of the second interview. However, that is not a matter that the court can take into account in determining whether s 138(2) of the CIA has been complied with. In this regard it is clear, on the face of s 138, that it governs the mandatory requirement that a suspect who has been arrested for a particular offence is to be cautioned before being interviewed in relation to that alleged offence and is to be given a reasonable opportunity to communicate or attempt to communicate with a lawyer.
Whether an accused person has been afforded a reasonable opportunity to communicate or to attempt to communicate with a lawyer is an objective determination rather than a determination made on the basis of an accused's subjective belief.
Whilst the accused was not afforded a reasonable opportunity to communicate or to attempt to communicate with a legal practitioner when he was previously interviewed by police, that history, most likely unbeknown by the detectives who subsequently interviewed him in relation to different alleged offending, could not dictate whether what they communicated to the accused afforded him a reasonable opportunity to communicate with a lawyer. It is clear in my view, on the plain and natural reading of s 138 of the CIA, that it does not intend to encapsulate prior conduct of police officers with arrested suspects in determining whether a person is subsequently given a reasonable opportunity to communicate with a lawyer. This would, of course, impose an almost impossible burden on police officers to conduct a thorough examination of an arrested suspect's prior interactions with police in order to determine whether they had previously been afforded their rights pursuant to s 137 and s 138 of the CIA and in effect to remedy any potential contraventions.
Whilst unfortunately the history of the matter did impact on the accused's subjective belief as to whether the police genuinely wished to afford him the opportunity to speak to a lawyer, s 138 of the CIA makes it clear on the face of the provision that it is an objective assessment as to whether a reasonable opportunity has been afforded to an arrested suspect to communicate or attempt to communicate with a lawyer. The provision does not require that an accused person believes in the authenticity or genuineness on the part of the police when they afford an accused person this right. It may be, in many cases, given the often lack of trust that an arrested suspect may have in the police, that they do not genuinely believe matters that are communicated to them. The legislation nevertheless does not require police to convince an arrested suspect of the authenticity of the rights afforded to them. They simply need to provide an accused with an objectively reasonable opportunity to communicate or to attempt to communicate with a lawyer and then the onus is on the arrested suspect to exercise that right.[91]
[91]Wright v The State of Western Australia [169] - [170].
I turn then to consider whether police afforded the accused a reasonable opportunity to communicate or to attempt to communicate with a lawyer at the commencement of the second interview conducted with him. In this regard I note the following:[92]
1.At the commencement of the interview Detective Sergeant Moore informed the accused that he had the right to make a telephone call to a legal practitioner and asked him if he wished to make that call. The accused told him that he did not wish to do so.
2.Detective Sergeant Moore asked the accused whether he wished for police to find him a legal practitioner which the accused declined.
3.Detective Sergeant Moore informed the accused that it was his choice given that it was his legal right. He did not have to contact a legal practitioner but if he wished police to locate one for him they could. Detective Sergeant Moore acknowledged that it might be difficult to reach a legal practitioner at midnight but that his rights were ongoing and if at some point during the interview he wished to exercise the right, Detective Sergeant Moore had a mobile phone in his pocket and could make it happen.
[92] PB page 168, transcript of the electronic record of interview conducted with the accused by police on 5 July 2023, page 5.
There is no prohibition in respect to police officers conducting interviews with arrested suspects late in the evening. There is no authority to suggest that in those circumstances affording an arrested suspect the right to communicate or attempt to communicate with a lawyer is not reasonable due to the potential practical difficulties of reaching a lawyer given the lateness of the hour. Indeed, defence was unable to identify any such authority for the court. In my view, despite the lateness of the hour, nevertheless police officers at the commencement of the second interview complied with their obligations pursuant to s 138(2)(c) of the CIA and afforded the accused a reasonable opportunity to communicate or to attempt to communicate with a lawyer by informing him of the right, offering to locate a legal practitioner for him, identifying that they had the means to do so throughout the interview because Detective Sergeant Moore had his mobile phone in his pocket and informing him that it was a continuing right which was his legal right. Whilst I accept that at that stage, given the history of the matter during the course of the day, the accused did not believe that the offer was a genuine one, nevertheless in my view the police officers complied with their obligations and the accused was afforded a reasonable opportunity to communicate or to attempt to communicate with a lawyer, which he declined.
Whether the interview was voluntary
It is a condition for the admissibility of evidence of confessional statements in a criminal proceeding that they were made voluntarily. It is presumed that a confessional statement is voluntary if there is nothing to suggest that it is involuntary. If the issue of voluntariness is raised, as it has been raised here, the State bears the onus of establishing on the balance of probabilities, that the confessional statements were made voluntarily.[93]
[93] Kelly v The State of Western Australia [2017] WASCA 221 [34] - [36].
As to what constitutes a confessional statement being voluntarily made, this matter was addressed by the court in Luo v The Queen[94] as follows:
71What is meant by 'voluntary' in this context was explained by Dixon CJ in McDermott v The King:
At common law a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made. This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary. But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made.
…
72In Swaffield the plurality recognised that Australian courts have generally not expressed the relevant principles by reference to an informed choice. At least in terms of voluntariness, they have tended to approach the matter in terms of freedom from compulsion. That emphasis is well placed where voluntariness is at issue, but too narrow when the exercise of discretion is involved. …
(footnotes omitted)
[94] Luo v The Queen [2020] WASCA 184 [71] ‑ [72].
His Honour, Fiannaca J, in The State of Western Australia v Gammell[95] considered what constituted voluntariness which observations have relevance to the issues raised before this court:
[95] The State of Western Australia v Gammell [174] - [186].
174The accused referred to The Queen v Williams, R Burnett, R v Phillips, R v Starecki and Naniseni v The Queen as authorities that have dealt with the significance (or otherwise) of an accused's physical and mental condition to the issue of voluntariness. He relied on the following passage from the ruling of the judge at first instance in The Queen v William as purportedly echoing his submission referred to at [172] above:
… in order to be admissible, a confession must be the result of conscious recollection of the detail of the events described and not a reconstruction put together while the body is exhausted and the mind in a condition to be overborne, so that every instinct would be to have it finished as shortly and as simply as possible and gain respite and rest from what here must have been nearly seven hours of debilitating experiences.
175The debilitating experiences referred to in that case included the accused attempting to commit suicide by taking poison, attempting to drown himself by throwing himself into the harbour, being violently ill, being found in a miserable and shivering condition, and being subjected to violent remedial treatment with a stomach pump, which must have left him in a debilitated condition. The police had commenced to take the accused's statement five minutes after that procedure, when there was no urgency to conduct the interview, which could have been postponed to the following morning. In those circumstances, the evidence of the accused's admissions, contained in the statement, was excluded because the factors to which I have referred were such as 'to rob any statement made by the accused in the period in question of its essential voluntary character'. …
176R v Burnett was a case in Victoria involving a confession late at night by an accused person who had fainted twice, had difficulty in moving and was 'in a dopey condition'. He had been arrested in an underground lavatory at about 9.30 pm and had fallen into a faint almost immediately. He was practically carried to the police station where he fell in a faint for the second time on the floor of the watch-house. He was revived from that state and put into a room where he was apparently left for a little while. When the police came back he was on the floor, apparently in an exhausted stated. He was told to get up. He rose slowly and apparently with difficulty and was told to sit on the bench where he took his seat and supported his head in his hands. He was kept 'closeted' by three police officers for upwards of an hour. He was questioned in those circumstances and, when he was not proceeding quickly enough with his answers, he was told by the questioning constable to hurry up as the constable could not stop there all night. In those circumstances, the trial judge, O'Bryan J, excluded the evidence of the confession on the ground that the prosecution had not established that it was voluntary. His Honour said:
It requires very little imagination to see that a man in that state of health, in those circumstances, is most likely to have his mind overborne by the presence of the officers.
177It is in that context that one needs to consider the more general proposition stated by O'Bryan J earlier in his reasons:
A man's mind can be overborne in a variety of ways, Persons who are sick, or ill in health, or in a debilitated condition may, and I would add in most cases are, very much more easily overborne than a person who is in robust health.
178In my opinion, it is sufficiently clear, from the context, that his Honour was referring to a person in such a condition being overborne by external pressures.
…
183The New Zealand decision of Naniseni v The Queen involved an accused who had been without sleep for 24 hours except for occasional naps in a car. The accused talked freely with police and what he said was reduced to writing and signed by the accused. The Court of Appeal in that case distinguished R v Burnett and held that involuntariness cannot be produced from within, for instance by fatigue or emotion, except where such condition of the accused has been brought about or aggravated by some other person to the end that a confession shall be made. As will appear below, in Tofilau, Callinan, Heydon and Crennan JJ considered this to be a general proposition to be followed, subject to rare exceptions, rather than a rule of law. …
…
186In R v Buchanan, Sholl J considered that the mere fact that a person's capacity to judge whether to answer or not is less than he would normally have, does not justify the conclusion that any statement he makes is involuntary in the legal sense. In his Honour's view, where intellectual capacity is an issue, evidence could be excluded as involuntary only if the accused person lacked 'sufficient intellectual capacity ... to determine whether he would or would not exercise his right to refuse to answer'. A mere reduction in that capacity did not suffice.
(footnotes omitted)
Whilst I accept the accused's evidence as both credible and reliable that he was hungry and tired at the time of the second interview and that the conditions at the Eucla police station were perhaps suboptimal, I am satisfied that the State has established that the admissions made by the accused during the course of his second interview were made voluntarily. Whilst the accused was undoubtedly under a degree of discomfort due to his tiredness and hunger, neither of those factors undermined his intellectual capacity such that he was not able to determine whether he would or would not exercise his right to refuse to answer. In addition, those matters did not render unreliable his recollection of his involvement in the alleged offending, nor did it result in him reconstructing his involvement in circumstances where his body was exhausted and/or his mind was in a condition to be overborne. Whilst I accept that the accused at that stage had an overwhelming desire to simply get the interview done and for matters to move forward, there was nothing in the circumstances of his detainment, in my view, which rendered him in such an extreme state that he was incapable of voluntarily participating.
Further, there is no suggestion that during the interview officers threatened the accused to participate or promised him an inducement. Indeed, there is no criticism at all of the manner in which the interview was conducted. The electronic record of the interview was played during the voir dire before me and in my view, there was nothing untoward or improper in the manner in which the interviewing officers conducted themselves. Indeed, the accused appeared to be calm and engaged in the process and did not exhibit any observable signs of experiencing any difficulty, physically or mentally, in his ability to participate. In my view the answers provided by him were reliable in those circumstances. Further, the accused admitted during his cross‑examination that he was not too tired to participate in the interview and had informed police officers that he was not too hungry or thirsty to participate.[96]
[96] ts 140 - 141.
Whilst I accept the accused's evidence as both credible and reliable that during the course of the interview he felt compelled to answer questions because of his treatment throughout the day by police and the withholding of his rights to communicate with others, particularly a legal representative, in my view that is not a matter that renders his participation in the interview involuntary. Involuntariness requires an externalised pressure such that an accused's will is overborne, or their intellectual capacity is in such a precarious state that they are physically, emotionally or mentally unable to participate with a consciousness of will. The internal thought processes of which the accused gave evidence does not fit into those recognised circumstances of involuntariness. However, it is a matter which may be relevant to the exercise of the courts residual discretion to exclude the evidence on the basis of unfairness to which I will turn shortly.
I am therefore satisfied, on the balance of probabilities, that the recorded admissions made by the accused during the second interview conducted with him by police were voluntary.
Court's discretion to exclude a voluntary confession
I will address firstly whether the court ought to exercise its residual discretion to exclude the evidence of the second interview conducted with the accused on the basis of unfairness to the accused.
The term 'unfairness' was considered by Toohey J, Gaudron J and Gummow J in R v Swaffield[97] as follows:
53The term 'unfairness' necessarily lacks precision; it involves an evaluation of circumstances. But one thing is clear:
'[T]he question is not whether the police have acted unfairly; the question is whether it would be unfair to the accused to use his statement against him … Unfairness, in this sense, is concerned with the accused's right to a fair trial, a right which may be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement.'
54Unfairness then relates to the right of an accused to a fair trial; in that situation the unfairness discretion overlaps with the power or discretion to reject evidence which is more prejudicial than probative, each looking to the risk that an accused may be improperly convicted. While unreliability may be a touchstone of unfairness, it has been said not to be the sole touchstone. It may be, for instance, that no confession might have been made at all, had the police investigation been properly conducted. And once considerations other than unreliability are introduced, the line between unfairness and policy may become blurred.
(footnotes omitted)
[97] R v Swaffield (1998) 192 CLR 159 [53] ‑ [54].
In conducting further analysis of the unfairness and policy discretions, their Honours noted that Brennan J in Duke v The Queen[98] described unfairness as incorporating conduct of police such as trickery, misrepresentation and unlawful detention justifying rejection of evidence of a confession. In that judgment Toohey J noted that a relevant factor to consider in the exercise of the discretion on the basis of unfairness is whether the confession was obtained whilst the accused was held in unlawful custody.[99]
[98] Duke v The Queen (1989) 180 CLR 508 [71] referred to R v Swaffield (1998) 192 CLR 159.
[99] Duke v The Queen (527) referred to R v Swaffield [72].
In my view the evidence obtained by police during the course of the second interview conducted with him ought to be excluded in the exercise of the court's residual discretion on the basis that it would be unfair to the accused to admit that evidence. The unfairness does not arise simply due to one contravention of the accused's rights but because there was a multitude of those contraventions, the most significant of which was the unlawful detainment of him for a considerable number of hours and the denial during that time of his right to communicate or attempt to communicate with a legal practitioner in circumstances where it is not disputed by the State that the accused sought to exercise that right on a number of occasions. Those matters inextricably form the foundation upon which the second interview was then conducted. If it were not for those fundamental breaches of the CIA in my view, the accused would not have participated in the second interview by answering questions asked of him by police. That is because he would have had the opportunity to seek advice from a legal practitioner who undoubtably would have advised him not to make any admissions contrary to his own interests. Even if that were not the case, the accused at the very least would have had the opportunity to have been properly advised by an independent legal practitioner before then deciding whether to exercise his right to answer questions or not. He was denied that opportunity for over 12 hours. He was unlawfully detained for 7 hours prior to being interviewed just after midnight on 5 July 2023. In my view there is clear unfairness to the accused in the manner in which the investigation was conducted by police, some of which was intentional as a means to an end, particularly the purported extension of detention by Sergeant Sobot. Those contraventions interfered with the accused's right to a fair and proper process and they were not remedied by the caution and rights afforded to the accused at the commencement of the second interview. In those circumstances, in my view, it would be unfair to the accused to admit the confessional evidence police obtained during the course of the second interview.
In relation to public policy considerations, I note that there is a considerable overlap between unfairness to the accused and public policy considerations in the exercise of the court's residual discretion. It is perhaps at this stage unnecessary for the court to repeat what has been set out earlier in these reasons in respect to the conduct of police throughout their investigations in respect of the accused. Suffice to say I accept the submissions made on behalf of defence that the contraventions of law by the police in how they conducted the investigation are so serious that they would likely undermine the public's confidence in the administration of justice. In my view therefore, public policy considerations would also persuade the court to exercise its discretion to exclude the confessional material.
The rights afforded to members of our community are, as noted by Owen JA in Mukevski v The State of Western Australia,[100] a precious commodity which ought to be strenuously guarded against irreparable erosion. Indeed, his Honour noted the responsibility of the courts:
… to protect against inappropriate intrusions against individual rights. Relevantly, the courts take seriously society's right to insist that those who enforce the law themselves respect it, so that a citizen's precious right to immunity from arbitrary and unlawful intrusion into the daily affairs of private life may remain unimpaired. …
[100] Mukevski v The State of Western Australia [2010] WASCA 138 [22].
This is apposite in the present case. The officers involved in the investigation of alleged offending by the accused ought to have upheld the integrity of the law such that the rights of individuals were not recklessly or intentionally disregarded in the 'cutting of corners' as a righteous means to an inglorious end.
Discretion to admit the evidence pursuant to s 155 of the Criminal Investigation Act 2006 (WA)
Having concluded that the evidence obtained by police during the second interview conducted with the accused is inadmissible pursuant to s 154 of the CIA, I consequently must now consider the State's submission that I should exercise the court's statutory discretion to permit the prosecution to lead the evidence pursuant to s 155 of the CIA. Relevantly, that provision provides the following:
…
(2)The court may nevertheless decide to admit the evidence if it is satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.
(3)In making a decision under subsection (2) the court must take into account -
(a)any objection to the evidence being admitted by the person against whom the evidence may be given;
(b)the seriousness of the offence in respect of which the evidence is relevant;
(c)the seriousness of any contravention of this Act in obtaining the evidence;
(d)whether any contravention of this Act in obtaining the evidence -
(i)was intentional or reckless; or
(ii)arose from an honest and reasonable mistake of fact;
(e)the probative value of the evidence;
(f)any other matter the court thinks fit.
(4)The probative value of the evidence does not by itself justify its admission.
In this case the accused does object to the admission of the evidence obtained by police during the second interview conducted with him.
It is not in contention that the offence charged against the accused is a very serious one that carries a maximum statutory penalty of 20 years' imprisonment.
This is important of course because the more serious the offence, the greater the public interest which may be served in admitting the otherwise inadmissible evidence. However, the more serious the offence, the greater likely consequences to an accused and the more important, therefore, that all procedural rights be strictly complied with.[101]
[101] Martin v The State of Western Australia [2008] WASC 105 [47].
In relation to the seriousness of any contravention of the CIA in obtaining the evidence I have already expressed views in this regard. In particular the accused was unlawfully detained at the time that the second interview was conducted with him and during that period of unlawful detainment he was denied any opportunity to communicate or attempt to communicate with a lawyer. These are serious and fundamental breaches of the accused's right to a fair and proper process.
In my view, the unlawful detainment of the accused, primarily enabled by the invalidly purported exercise of authority pursuant to s 140 of the CIA by Sergeant Sobot was done intentionally so as to ensure that the accused was not released. I expressed views at [36] ‑ [38] that Sergeant Sobot was well familiar with the requirement that an independent officer needed to authorise any extension, that he was not independent because he had been involved in the investigation, and that he authorised the extension to simply ensure that it 'got done'.[102] The fact that the ongoing detention of the accused was done unlawfully and intentionally by Sergeant Sobot in contravention of the CIA is a very serious matter. This is particularly when considering that there is no common law power to detain a person for the purposes of an interview and therefore the power conferred under the CIA is an inroad to what was an individual's right to liberty at common law.[103] In such circumstances the constraints on that power must be respected in absolute terms.
[102] ts 50.
[103] Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278.
The withholding of the accused's right to communicate with a lawyer is also inexplicable. I accept the very credible, plausible and candid evidence of Senior Constable Scott that there was a standing instruction to officers at the Eucla police station that if they were to discover a large quantity of illicit drugs at a vehicle stop that they were to withhold the vehicle occupants' rights to communicate with any person, including a legal practitioner, until detectives from the Drug and Firearm Squad decided otherwise.[104] Senior Constable Scott adhered to that instruction by refusing to facilitate the accused's request to speak to a lawyer on three occasions.[105] Whilst Senior Constable Scott was simply following instructions 'from above', in my view he ought to have been aware, certainly by the third time that the accused requested to speak to a lawyer that the withholding of this right was in direct contravention of the CIA. It appears to this court that the Eucla police station, together perhaps with instructions given to them by various detectives at the Drug and Firearm Squad, saw fit to conduct their investigations in any way deemed necessary for the 'greater good'. That is the only plausible explanation for what took place in this case.
[104] ts 110.
[105] ts 133 and ts 136.
The heuristics of noble cause corruption has no place in our police force or in our society. It infiltrates the police force by osmosis like a poison soaking through the tightly interwoven fabric of the cold face of the law, fraying the edges of its ethical integrity. It must be strenuously guarded against.
In considering the seriousness of the contraventions of the CIA, much greater weight should be given to a contravention if it was intentional or reckless than if it arose from an honest and reasonable mistake of fact. Therefore, in my view, given the findings that I have made, the contraventions of the CIA in this case were particularly serious.
It is undoubtedly the case that the probative value of the evidence is significant. However, in my view the State nevertheless has a relatively strong case against the accused. The prosecution will proceed even if the admissions the accused made during the course of his second electronic record of interview are excluded. Therefore, this is not a case where if the evidence is excluded then the charge will either be discontinued or will inevitably fail.
In relation to other matters that the court views as relevant to the exercise of the discretion pursuant to s 155 I note the following:
1.In my view police officers could have very easily complied with the relevant provisions of the CIA. There was no need to proceed in the manner in which they did.
2.There were a number of significant fundamental breaches in the exercise of the powers of police officers leading up to the conduct of the second interview with the accused.
3.There are important public policy considerations requiring police officers who enforce the law, to know and apply the law but also a requirement for the law to vigorously protect members of our community from having their fundamental rights overridden due to the failure of police officers to adhere to statutory legislative mandated requirements whose very purpose is to protect the rights of our citizens. This case is a very clear example of the significance of that public policy consideration.
In conclusion, the State has not satisfied me that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.
Consequently, the evidence obtained by police during the conduct of the second interview conducted with the accused on 5 July 2023 is inadmissible at the trial of the accused.
Application for permanent stay
Position of defence
Lastly, defence seeks an order permanently staying the indictment either on exercise of the court's implied power to prevent an abuse of its process or pursuant to s 90 of the CP Act. The defence submits that the court ought to exercise its discretion for the following reasons:
(a)the police improperly exercised their legislative powers when stopping and searching the accused's vehicle;
(b)although the accused was informed of his right to speak with a lawyer, that right was withheld from him for 13 hours and when it was ultimately afforded to him it was late in the evening when legal assistance was unlikely to be available; and/or
(c)the accused was unlawfully detained for a period of seven hours following his initial arrest.
The defence contends that the cumulative effect of those matters has caused the accused to suffer significant unfairness and, further, that the police conduct was of a quality to undermine the community's confidence in the administration of justice and on that basis a permanent stay is the appropriate remedy.
The State's position
The State notes that the power to order a stay of proceedings is discretionary and ought to be exercised only in extreme cases sparingly.
The State acknowledged the seriousness of the breaches of the CIA relating to the impugned evidence in counts 1 ‑ 3 on the original indictment and as such applied to discontinue those charges. The State submitted to the court that the appropriate remedy to the unfairness arising from those particular breaches of the CIA was to discontinue those charges, as opposed to a permanent stay of the prosecution of the entirety of the indictment. The State submits that by its actions of discontinuing those counts, the issue of fairness to the accused was addressed as was the need to maintain public confidence in the administration of justice.
The State submits that whilst any breach of the CIA is undesirable and concerning, there is nevertheless a legitimate public interest in prosecuting the accused for the cocaine seized at the Westminster property. In that regard the State notes that a MDA search warrant was obtained in respect of the search of that property which was obtained on reasonable grounds and was validly and lawfully exercised.
Determination
The exercise of the court's discretion to order a permanent stay of a proceeding is exercised in exceptional and rare cases where the court is satisfied that there is a fundamental defect which goes to the root of the trial which is of such a nature that there is nothing that a trial judge can do in the conduct of the trial to relieve against its unfair consequences.[106]
[106] Jago v The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 [21] (Jago).
The purpose of the power is to prevent an abuse of process or the prosecution of a criminal proceeding in a manner which will result in a trial which is unfair when judged by reference to acceptable standards of justice. The other purpose of the power is to ensure a fair trial by preventing an abuse of process.[107]
[107] Jago [23].
Section 90 of the CP Act provides that:
A superior court which an accused is committed on a charge or in which an accused is indicted on a charge may at any time order that the prosecution of the charge be stayed permanently, if it is in the interests of justice to do so.
The phrase 'the interests of justice' is not capable of easy articulation or extrapolation given its conclusory nature.[108]
[108] TVM v The State of Western Australia [2007] WASC 299 [28].
Given that the phrase is not defined in the legislation, it has been applied as incorporating the factors pertinent to the exercise of the discretion at common law which includes, as mentioned above, the need to protect an accused against an inherent unfairness that cannot be otherwise cured by the trial judge. Indeed, this was the position articulated by her Honour Jenkins J in Allen v Director of Public Prosecutions (WA).[109] Thus, the statutory provision enabling a court to permanently stay a proceeding effectively restates the court's inherent power to do so and does not purport to limit that power to something less than is recognised by the common law.
[109] Allen v Director of Public Prosecutions (WA) [2014] WASC 67 [38] ‑ [39].
Ultimately, I am not persuaded that the case before me is so exceptional that it ought to be permanently stayed on the basis that the accused would be unable to have a fair trial.
The State has, in effect, cured what would otherwise be an unfair trial by discontinuing counts 1 ‑ 3 on the original indictment. That application was appropriately made. I have, further, made an order excluding the admissibility of the second interview conducted by the police with the accused which remedies the potential of the accused otherwise receiving an unfair trial.
The quantity of cocaine seized by police at the Westminster property is significant and undoubtedly reflects alleged serious offending. It was seized by police following a lawful and valid execution of a search warrant obtained pursuant to the MDA.Whilst police unlawfully stopped the accused's vehicle and searched it and conducted an initial interview with him in breach of s 137 and s 138 of the CIA, in addition to unlawfully detaining him for a number of hours, none of the evidence derived from those fundamental breaches of the powers of police will be before a jury in the prosecution of the current indictment.
In my view the prosecution of the accused on the current indictment is not an abuse of process and despite the conduct of the police leading up to the search of the Westminster property being unacceptable, and in respect of which appropriate criticisms have been laid by this court, as a result of the orders made by this court and the actions taken by the State to discontinue counts 1 ‑ 3 on the original indictment, the accused can nevertheless be afforded a fair trial.
In all the circumstances therefore the basis for a permanent stay is not made out either at common law or pursuant to s 90 of the CP Act.
Orders
The court therefore makes the following orders:
1.The application made on behalf of the accused seeking an order that the court exclude evidence of the search at the Westminster property on 4 July 2023 is dismissed.
2.The evidence of the accused's second interview conducted with police on 5 July 2023 is excluded as inadmissible.
3.The accused's application seeking an order of the court pursuant to s 90 of the Criminal Procedure Act 2004 (WA) that the prosecution of the charge be permanently stayed is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LE
Associate to Judge Wallace
14 AUGUST 2025
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