The State of Western Australia v REL - [2011] WADC 80

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION: KALGOORLIE

CITATION: THE STATE OF WESTERN AUSTRALIA -v- REL [2011] WADC 80

CORAM: BIRMINGHAM QC DCJ

HEARD: 14 FEBRUARY 2011

DELIVERED : 4 MAY 2011

PUBLISHED : 30 MAY 2011

FILE NO/S: KAL IND 75 of 2010

BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
REL

Catchwords:

Criminal law and procedure - Accused interview whether voluntary - Breach of Criminal Investigation Act 2006 (WA) - Reasonable opportunity to communicate with legal practitioner - Voluntariness of interview - Discretion to admit or exclude

Legislation:

Criminal Procedure Act 2004 (WA), s 98
Criminal Investigation Act 2006 (WA), s 138, s 154, s 155

Result:

Record of interview inadmissible

Representation:

Counsel:

State of Western Australia : Mr S F Rafferty
Accused: Mr T Hager

Solicitors:

State of Western Australia : State Director of Public Prosecutions
Accused: Aboriginal Legal Service

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

Collins v The Queen (1980) 31 ALR 257
Cox v The State of Western Australia [2008] WASC 101
McDermott v The Queen (1948) 76 CLR 501
Pollard v The Queen [1992] HCA 69 (1992) 176 CLR 177
R v Anunga (1976) 11 ALR 412
R v Lee (1950) 82 CLR 133
State of Western Australia v Cox [2008] WASC 287
Tofilau v The Queen (2007) 231 CLR 396
Wright v The State of Western Australia [2010] WASCA 199

BIRMINGHAM QC DCJ: By an indictment dated 15 September 2010 it is alleged that on 28 September 2009 at Warmun community, the accused sexually penetrated the complainant without her consent by penetrating her vagina with his penis.
The accused applied pursuant to s 98 of the Criminal Procedure Act2004 to have certain evidence excluded namely alleged 'off‑camera' admissions and two video‑recorded interviews (VROI) of the accused conducted on 29 September 2009 and 30 September 2009 respectively.
The State no longer seeks to rely on the off‑camera admissions and the VROI of the accused conducted at the scene of the alleged offence on 29 September 2009 as part of the State's case. Accordingly, the application was confined to the admissibility of the VROI of the accused conducted at the Kalgoorlie Police Station on the evening of 30 September 2009.
On 4 May 2011 I upheld the accused's objection and ruled that the VROI was inadmissible and would be excluded from the evidence admitted at trial. The following are my reasons for doing so.
In the VROI of the accused conducted at the Kalgoorlie Police Station on the evening of 30 September 2009 the accused made a number of admissions against interest.
Counsel for the accused, Mr Hager, says that the accused's admissions made were not voluntary. Voluntariness in the context of the admissibility of confessional statements means in the exercise of a free choice to speak or be silent: R v Lee (1950) 82 CLR 133, 149.
It was further submitted, that even if the statement was voluntarily given, it should be excluded as a matter of discretion insofar as it was obtained in breach of s 138(2) and s 138(3) of the Criminal Investigation Act 2006 (the Act). In relation to this limb of the objection, the accused says that at the time of his arrest and subsequent interview as a suspect, he was not informed of the offence for which he had been arrested; was not properly cautioned before being interviewed and further was not given a reasonable opportunity to communicate with a legal practitioner or attempt to communicate with a legal practitioner.
If the statement of the accused has been taken in contravention of the Act such evidence is not admissible unless the court decides otherwise under s 155 of the Act: see s 154 of the Act.
The onus of proving the voluntariness of a confessional statement is on the State on the balance of probabilities. As the confessional material sought to be admitted by the State contains admissions seemingly addressing all elements of the offence charged, I approach the State's burden of proof on the basis that I must be completely satisfied that the statement is voluntary: State of Western Australia v Cox [2008] WASC 287 [49] – [50] (Martin CJ).

Background

On the morning of 29 September 2009 the police received a complaint from the complainant, P, alleging that the accused had sexually penetrated her without her consent. Later that day the police at Warakurna spoke to the accused about the matter.
At 12.55 pm on 30September 2009, the accused was arrested by police officers at Warakurna and placed in a cell at the Warakurna Police Facility.
At 2.45 pm, Detective Senior Constable McKay (DSC McKay), a detective based at Kalgoorlie, attended Warakurna. Following a brief conversation DSC McKay took custody of the accused as an arrested suspect and conveyed him by aircraft to Kalgoorlie - arriving at Kalgoorlie at about 6.00 pm. The accused was then placed in an interview room and provided a meal.
At approximately 7.30 pm – some 6 1/2 hours after the accused was first arrested as a suspect – DSC McKay and Constable Murray commenced interviewing the accused.

Evidence on hearing of application

For the purpose of this application I have been provided with a copy of the VROI together with a typed transcript. I pause to observe that the transcript tendered contains a number of errors and I rely on the primary source only. Unfortunately, some parts of the interview are indecipherable and the accused's response to some questions is unclear.
The accused did not give evidence on the application.
DSC McKay gave evidence for the State as to the circumstances of the accused's arrest, transportation to Kalgoorlie and the taking of the VROI.
It was DSC McKay's evidence that:
i.He was aware of his obligations under the Act in relation to arrested suspects.
ii.The accused had been arrested as a suspect at approximately 1.00 pm on 30 September 2009 and placed in a cell at the Warakurna Police Facility with the door closed.
iii.He spoke to the accused at approximately 2.45 pm at Warakurna.
iv.At that time he had been informed by the arresting officer that the accused had been cautioned when he was arrested.
v.He told the accused that P had made a complaint in relation to him having sex with her and then cautioned him.
vi.He told the accused that the matter related to the complainant and the sexual penetration of the complainant in terms to the effect of 'what you did with P' however was unable to specifically remember what he said to the accused about the allegation.
vii.It was his usual practice to describe such offences in terms of 'sexual penetration without consent' and believes that he would have described the allegation in such terms to the accused.
viii.He said that he explained the caution and also the accused's rights to communicate with other people including the right to speak to a lawyer.
ix.He asked the accused whether he wanted a lawyer and the accused said he did not wish to speak to a lawyer.
x.He said that when cautioning the accused at Warakurna, he probably did not seek to establish whether the accused understood the caution and his rights under the Act (ts 15) and did not ask the accused to repeat back to him what the words meant for either limb of the caution (ts 35).
xi.There were facilities available to enable the interview to be conducted at Warakurna, however they required the accused to return to Kalgoorlie to enable forensic matters to be completed.
xii.The accused was transferred in the police aircraft to Kalgoorlie.
xiii.During the flight to Kalgoorlie a senior officer travelling with him extended the time the accused could be detained in custody to be interviewed beyond six hours in accordance with s 140 of the Act.
xiv.Upon arrival at Kalgoorlie, the accused was taken to the Kalgoorlie Detectives Office where he was provided with a meal and drink before being interviewed – such interview commencing at 7.27 pm. At that stage the accused had been in custody 6 1/2 hours.
xv.At that time he had already obtained a statement from the complainant and intended to charge the accused irrespective of any admissions that were made in the interview.
xvi.In his experience he had been unable to contact a lawyer after business hours 9 out of 10 times (ts 19). In cross‑examination (ts 23) he expressed the position in terms of:
In my experience … a number of times we have tried calling lawyers and that, that after business hours you just get answering services, or it just rings out. I had no problems at all letting [the accused] speak to a lawyer, but it would be tomorrow morning, whenever.
xvii.He acknowledged that the accused as an indigenous suspect was likely to be represented by the Aboriginal Legal Service (ALS) (ts 23). He further acknowledged that the telephone numbers for the ALS, the Legal Aid Commission and a number of private lawyers were available at the Kalgoorlie Police Station. All that was required to enable the accused to contact a legal representative at the ALS would have been as simple as going to his office, obtaining the number to the ALS and making the call.
xviii.Notwithstanding the accused's request to speak to a lawyer, he did not provide the accused with access to a phone or with a phone book and did not attempt to contact a lawyer on his behalf.
xix.There was no urgency in conducting the interview and it could have waited until the next morning if the accused wanted to speak to a lawyer (ts 26).
xx.It had been his practice when an arrested suspect wanted to communicate with a lawyer (after business hours) to stop the interview and allow them to make a phone call - or carry on the interview the following morning after the accused had had the opportunity to speak to a lawyer. He had not had occasion to do that with Aboriginal people (ts 24). [I pause to note that by that evidence I understood DSC McKay to be saying that similar circumstances simply had not arisen previously.]
xxi.When the accused advised that he wished to speak to a lawyer during the interview it was then too late for him to do so.
It is apparent from the VROI that the accused is a seemingly relatively unsophisticated 24‑year‑old Aboriginal male who lived at the Warakurna community - a remote Aboriginal community in the western desert. Although he can write his name and communicate in the English language, he had very little schooling and was unable to read and write English.
For the purpose of this application, I am satisfied that the accused man is in the category of persons described as an indigenous suspect in the terms of R v Anunga (1976) 11 ALR 412 and that I should have regard to the Anunga Rules when considering the application.
The Anunga Rules are relevant to the issue of voluntariness. Although they do not have the force of law in this state, they provide a guideline as to what might be considered relevant in assessing the voluntariness of a confessional statement: State of Western Australia v Cox [2008] WASC 287 [55].

Voluntariness of the video record of interview

The first issue for consideration is whether the statement made by the accused was voluntary.
The statement will not be voluntary if it is the result of duress, intimidation, persistent importunity or sustained or undue insistence of pressure: McDermott v The Queen (1948) 76 CLR 501, 511.
As observed by Gummow and Hayne JJ in Tofilau v The Queen (2007) 231 CLR 396:
… the key enquiry is about the quality of the compulsion that is said to have overborne the free choice of whether to speak or remain silent. [60]
When undertaking such enquiry it is necessary to have regard to the whole of the circumstances. As observed by Brennan J in Collins v The Queen (1980) 31 ALR 257:
The conduct of police before and during an interrogation fashions the circumstances in which confessions are made and it is necessary to refer to those circumstances in determining whether a confession is voluntary. The principle, focussing upon the will of the person confessing, must be applied according to the age, background and psychological condition of each confessionalist and the circumstances in which the confession is made. (307)
I have carefully reviewed the VROI - particularly in the context of reviewing the accuracy of the transcript.
Whilst I have some concerns as to the adequacy of the caution to which I will return later in these reasons, I am satisfied that during the course of the interview the accused understood the questions asked of him and was able to make appropriate responses. Although the accused exhibited signs of tiredness (a feature that became increasingly apparent as the interview continued), given the circumstances of his arrest and subsequent transfer by air to Kalgoorlie such appearance is not surprising. His general demeanour, as observed on the video and his answers indicate that he was aware of questions and able to respond. Although it is acknowledged that he does not read or write English, he displayed an adequate command of English and an ability to communicate and respond relevantly to the questions asked of him in relation to the matter.
I consider that the conduct of DSC McKay was not overbearing. The questions asked by DSC McKay were generally non‑leading and the manner and tone of his questioning did not put any undue pressure on the accused to answer. There was nothing apparent in the interview to suggest that the accused was overborne or threatened by the surroundings or by being interviewed. The accused seemingly understood that it was an opportunity for him to 'tell his story'.
The circumstances that led to the interview being concluded support such view. After the interview had been going for approximately 50 minutes, the accused rested his head on the table and DSC McKay enquired - 'Are you getting a bit tired?'. The accused responded, 'I have got no more story'. When asked, 'Do you wish to answer any more questions?' he responded, 'No'. The interview was then terminated (video timer ref: 00:51:00).
Before terminating the interview, the accused confirmed that the interview had been given freely, that he had spoken to the police because he wanted to and that he had not been induced in any way to speak.
I am satisfied that the accused answered questions because he wanted to tell 'his story' and his will was not overborne by pressure. I am further satisfied that he understood that he could speak or remain silent and exercised the choice to speak. There is nothing to suggest that the answers he gave were in any way unreliable.
I am satisfied on the balance of probabilities that the interview was voluntary. I make such finding notwithstanding that I have found that the interview of the accused was conducted in breach of s 138(2)(b), s 138(2)(c) and s 138(3)(b) of the Act for the reasons hereafter stated.

Breach of s 138 Criminal Investigation Act

Division 5 pt 2 of the Act confers rights on suspects and imposes obligations on arresting officers. It includes the following provision:

138. Arrested suspects, rights of
(1)In this section ‑
arrested suspect means a person who is under arrest having been arrested ‑
(a)under section 128, under an arrest warrant, or under another written law, on suspicion of having committed an offence; or
(b)under the Criminal Investigation (Extra‑territorial Offences) Act 1987;

officer means a police officer, a public officer, or any person who holds an office with power to arrest people.
(2)In addition to the rights in section 137 an arrested suspect is entitled ‑
(a)to be informed of the offence for which he or she has been arrested and any other offences that he or she is suspected of having committed;
(b)to be cautioned before being interviewed as a suspect;
(c)to a reasonable opportunity to communicate or to attempt to communicate with a legal practitioner;
(d)if he or she is for any reason unable to understand or communicate in spoken English sufficiently, not to be interviewed until the services of an interpreter or other qualified person are available.

(3)The officer in charge of the investigation must, as soon as practicable after the arrest of an arrested suspect ‑
(a)inform the suspect of his or her rights under section 137(3) (c) and subsection (2) (c); and
(b)afford the suspect his or her other rights under section 137 and subsection (2).

(4)An officer may refuse an arrested suspect his or her right to communicate or to attempt to communicate with a person if the officer reasonably suspects that the communication would result in ‑
(a)an accomplice taking steps to avoid being charged; or
(b)evidence being concealed, disturbed or fabricated; or
(c)a person's safety being endangered.

The accused's objections in relation to alleged breaches of s 138(2) and s 138(3) of the Act are the failure of the police:
(1)to inform him of the offence for which he had been arrested pursuant to s 138(2)(a);
(2)to caution him before being interviewed pursuant to s 138(2)(b); and
(3)to provide him with a reasonable opportunity to communicate or attempt to communicate with a lawyer pursuant to s 138(2)(c).

Failure to inform the accused of the offence – s 138(2)(a)

It was submitted by counsel for the accused that the police failed to inform the accused as to the offence for which he was arrested as a suspect.
It was the evidence of DSC McKay that he told the accused at Warakurna that the matter related to the complainant and the sexual penetration of the complainant in terms that 'what you did with P'. Although he could not remember specifically what he advised the accused in relation to the allegation, DSC McKay said it was his usual practice to say that it was sexual penetration without consent. I accept his evidence on this matter.
Having viewed the video and the other prosecution material, I am satisfied that at the time of undertaking the interview the accused was sufficiently aware of the nature of the allegations against him. If there was any failure on the part of the arresting officers to detail the allegations with specificity, it was not such as to deprive the interview of its voluntariness on the part of the accused.
It is apparent from his response to the questions asked of him that the accused was aware that the offence for which he was arrested related to the complaint of P alleging that he sexually penetrated her without her consent.

Failure to caution the accused prior to interview – s 138(2)(b)

As noted above, whilst the Anunga Rules do not have the force of law in this state, they provide guidelines as to what may be considered relevant to the assessment of the voluntariness in a confessional statement. This is particularly so in relation to the question of whether or not an accused has been adequately cautioned before speaking to the police.
A caution has two components. First, an accused person is to be advised that he or she has the right to remain silent – that is to say, that he or she is not obliged to speak to the police officer nor answer the questions put unless he or she wishes to do so. The second component of the caution is to advise the accused person of the use to which any statement or answers to questions that he or she may give will be put – that is to say, that it will be used as evidence against him or her in relation to any charges that may arise in relation to the matter about which he or she is being questioned.
DSC McKay acknowledged that he was aware of the Anunga Rules and accepted that they applied to the accused.
Rule 3 of the Anunga Rules provides that care should be taken in administering the caution. As noted by Forster J at 414 ‑ 415 in Anunga, it is not adequate to simply administer the caution in usual terms and to say 'do you understand that?'. Interrogating police officers, having first explained the caution in simple terms, should ask an accused to whom the Rules may apply, to tell them what is meant by the caution, phrase by phrase, and not proceed with the interrogation until it is clear that such accused has an apparent understanding of the nature of the proceedings and of his or her right to remain silent.

It was DSC McKay's evidence that he was told that the accused had been cautioned by other police officers when he had been arrested and so administered his usual caution. He accepted however that when cautioning the accused at Warakurna, he probably did not undertake an exercise to establish whether the accused understood the caution and his rights under the Act (ts 15) and that he did not ask the accused to repeat back to him what the words meant for either limb of the caution (ts 35).
When interviewing the accused that evening at Kalgoorlie, DSC McKay reminded the accused of what had been said to him by the Sergeant at Warakurna about suspect's rights – including having been cautioned and if he wanted to speak to a lawyer.
I pause to note that DSC McKay was not then present at Warakurna and relied on information subsequently provided to him by the arresting officer.
Following a conversation with the accused concerning whether he wished to speak to a lawyer and to thereafter continue in the absence of one – to which I will return later in these reasons – DSC McKay again sought to caution the accused. The relevant portion of the evidence from the corrected transcript of the VROI is as follows:
[video timer ref. 00:08:55]:
Q.Um, I've got to give you this caution. Okay? And this caution is that you don't have to talk to me unless you want to. Okay? But whatever you say, so anything you speak or do that camera's getting it. Okay?
A.Yeah.
Q.And whatever's done is being recorded on a DVD.
A.Yeah.
Q.Okay? And, uh, that can be used in court as evidence.
A.The camera there?
Q.Yeah.
A.Oh.
Q.Yeah. Do you know what I mean? So if I, if I say, um, what colour is my jacket, do you have to answer me? Do you have to tell me? [long pause] Let me put it another way. When I ask you a question, do you have to tell me the answer?
A.Yeah.
QNo?
A.No.
QNo. You don't have to. Okay. And that's what you've got to remember. So if I ask you any questions and you don't want to tell me - - -
A.Yeah. Not to.
I observe that the accused shakes his head at this time. The conversation continued:
Q.Nup. You'll go - just say, "No. I don't want to talk". Okay? But if you do tell me something whose choice is it?
A.That's for P [the complainant].
Q.Hey?
A.That's P (indistinct) go home (indistinct)
Q.Who?
A.P.
Q.P?
A.(indistinct)
Q.Oh, yeah. No. We'll talk about that in a minute. Okay?
A.Yeah.
Q.I just got to make sure you understand that you don't have to tell me anything. Okay? You might want to tell me some things and not others. Okay? And anything that you say, where do you think that's being recorded? So anything we're doing now, where's that getting recorded? Hm?
A.Yeah.
At this point the accused looks at table microphone and DSC McKay points to microphone in the surface of the table. The conversation continued:
Q.There? And - - -
A.Camera.
Q.Yep. On to a - do you know what it's getting recorded on to? A DVD, do you know what DVD's are?
AYeah.
Q.Do you, like, the movies?
A.Disc.
Q.Yeah. Onto a disc. And that goes on the - yeah. The machine's recording it.
A.Oh.
Q.Okay.
A.Yeah.
Q.That, that can see all of us in here. Okay? And all we talk about. All right?
A.Yeah.
Q.So later on when this goes to court, you know, the magistrate could look at this movie of us. Okay? And listen to your story.
A.When that court?
Q.Hey?
A.When court?
Q.When court?
A.Yeah.
Q.Probably tomorrow.
A.Tomorrow?
Q.Yeah. Okay?
A.Oh. Yeah.
Q.Yep? So are you with me? Do you understand? So - all right. If I ask you a question do you have to tell me?
A.No.
Q.Whose choice is it to answer the questions?
A.Mine.
Q.Yep. That's right. So you remember that as we go through. Okay?
A.Yeah.
[video timer ref. 00:12:12]
It is apparent from the recording of the interview that DSC McKay went to some lengths to ensure that the accused was aware that he was not required to answer questions and that he could bring the interview to an end at any time. As noted above, the accused ultimately brought the interview to an end when he said he 'had no more story'. In the circumstances, I am satisfied that the accused understood that he had a choice to answer questions and was aware that he was not obliged to answer the questions put to him.
From my review of the interview, particularly the passage referred to above however I am not satisfied that the accused fully understood the nature of the caution that had been given to him and the use which would be made of his answers to questions put to him. He was not asked if he understood the use to which it would be put.
In such circumstances I am not satisfied that the accused appreciated or understood the nature of the proceedings and that consequence of answering the questions may be that they would be put before a court to deal with him for anything revealed by the answers. In my opinion, to that extent, the caution administered to the accused was deficient. To say (ts 9) 'a magistrate will listen to your story' did not disclose to the accused that the answer he gave might be used against him in the proof of such offences with which he may be charged arising out of the matter.
I find to that extent the accused was not properly cautioned in accordance with s 138(2)(b) of the Act before being interviewed.

Failure to provide opportunity to communicate with a lawyer – s 138(2)(c)

Pursuant to s 138(2)(c) of the Act, the accused as an arrested suspect has a statutory right to a reasonable opportunity to communicate or to attempt to communicate with a legal practitioner.
Pursuant to s 138(3)(a) of the Act an officer in charge of an investigation must inform the suspect of his rights to communicate with a lawyer. Having so informed the suspect of that right, it is then for the arrested suspect to exercise that right. If the arrested suspect expressly indicates he does not wish to exercise that right then nothing further is required of the police officer: see Wright v The State of Western Australia [2010] WASCA 199 [34], [38] (McLure P) and [160], [164] (Blaxell J).
If an arrested suspect advises that he or she wishes to communicate with a lawyer, the officer in charge must afford the arrested suspect a reasonable opportunity to do so: see s 138(3).
What is required to provide a 'reasonable opportunity' will depend on the facts and circumstances of the case. Given that an arrested suspect is detained in the presence of a police officer it may necessarily involve the suspect or accused travelling in the company of police officers to obtain access to a telephone and the means by a telephone directory or other ways to contact a lawyer. The police must not by any act or omission prevent an accused from exercising his or her entitlement to speak to a lawyer: Wright [29], [30] and [34] (McLure P).
At the commencement of the interview in Kalgoorlie DSC McKay asked the accused if he wished to speak to a lawyer. The relevant portion of the interview is as follows:
[Video timer ref: 00:06:26]
Q.You've, um, I think you spoke to the police on Tuesday. Neil, Neil Gordon?
A.Yeah.
Q.Yeah? And you've spoken to, um, the Sergeant from Warakurna today, um, and they, they told you something about your rights, suspects rights. Do you remember them telling you about suspects rights?
A.What's that?
Q.Did they tell you that, you know, that you're under arrest as a suspect for - - -
A.Yeah.
Q.- - - what happened with P? Okay.
A.Yeah.
Q.And they say that you could talk to a lawyer - if you wanted to. Yep? And, um, did you want to talk one when they, they asked you?
A.Yeah.
Q.You wanted to talk to a lawyer when they spoke to you? [the accused nods] What did you tell them? [long pause] Do you remember what you said to them or anything? No? Okay. And then I asked you - when I come out and spoke to you today, when you were at Warakurna. I said to you about the, um, that again I needed to speak to you about what happened with P, and again I told you that, you know, that you had the right to speak to a lawyer if you wanted to.
The accused covered face with hand and shakes his head:
A.Ahhh [indecipherable].
Q.And you said to me at that time you didn't want to speak to a lawyer. Hey? Yeah?
A.[the accused shakes his head] Yeah.
Q.So do you, do you want to speak to a lawyer or not?
A.Which lawyer?
Q.Any lawyer. That's up - that's, that's your rights. Okay? And that - when I say 'your rights' that's, like, if you want to, we can't stop you from doing that. Okay?
A.Yeah
Q.So if you want to speak to a lawyer you can speak to a lawyer.
A.Yeah. I want to speak to a lawyer.
[Video timer ref:00:08:24]
Q.Yeah? The only thing is you're not going to be able to get one now, this late at night.
A.Maybe tomorrow.
Q.Yeah. Maybe tomorrow. If you want to speak to one tomorrow.
A.Yeah.
Q.What about, do you want to talk to me about what's happened with P?
A.Yeah.
Q.So you want to talk to me without speaking to a lawyer first? [The accused nods] Is it okay?
A.Yeah.
Q.Are you sure? [The accused nods] Okay. Now before we go on to that then, if you're happy to talk to us about what happened with P.
A.Yeah.
Q.Um, I've got to give you this caution. Okay? And this caution is that you don't have to talk to me unless you want to. Okay? But whatever you say, so anything you speak or do that camera's getting it. Okay?
A.Yeah.
[Video timer ref: 00.09.21]
The accused was then cautioned by DSC McKay and the interview continued. It is apparent, however, from the video that the accused seemingly did not have a good grasp as to what the position was in relation to whether he was going to speak to a lawyer or not. During a pause in the interview the following conversation took place:
[Video timer ref: 00:34:41]
Q.Have you got anything?
A.When the lawyer coming?
Q.Hey?
A.Lawyer.
Q.Do you want to ring a lawyer?
A.(indistinct)
At this point the accused appears to say 'Yeah', but shakes his head.
Q.No? You don't want one? Okay.
Constable Murray then further questioned the accused.
As noted above, it was DSC McKay's evidence that he had asked the accused if he had wanted to speak to a lawyer when first speaking to him at Warakurna. He says that the accused then advised him that he did not wish to do so.
It was apparent from the VROI in the passages set out above that there was a prior conversation in relation to this matter at Warakurna – both with the Sergeant stationed at Warakurna and later with DSC McKay.
No evidence was adduced by the State as to the extent to which the accused had been informed of his rights under s 138 at the time of his arrest by the Sergeant at Warakurna.
As I understand DSC McKay's evidence in relation to the caution he administered at Warakurna, his advice to the accused in relation to his rights under s 138 of the Act was, at best, cursory. DSC McKay readily admitted in cross‑examination that he probably did not undertake an exercise to establish whether the accused understood the caution and his rights under the Act at Warakurna (ts 15).
Whilst the accused acknowledged in the VROI that he had been told certain things about his rights at Warakurna, he maintained that he had asked to speak to a lawyer.
I am not satisfied on the state of the evidence that the accused expressly stated that he did not want to speak to a lawyer when he was at Warakurna. I find that it is more probable that the accused said he wanted to speak to a lawyer at Warakurna earlier that day. This is supported by the entry on the running sheet maintained by DSC McKay for 30 September 2009 (page 93 of the brief). The running sheet records:
1445:Warakurna Police
[The accused]: Arrested as suspect at 1300hrs on 30.09.09 by Sgt Davies of Warakurna Police at Wanarn. Conveyed to station.
1455:Property seized off [the accused].
Again advised of his rights and the offence.
Might call lawyer in Kalgoorlie [emphasis added]
1545:Depart Warakurna.
1815:Arrive Kal. With [the accused].
Convey to station, placed in i/v room with officer.
1905:Given meal.
The entry in the running sheet at 2.45 pm that day 'Might call lawyer in Kalgoorlie' suggests that the accused had expressed a desire to speak to a lawyer or at the very least, had not expressly stated that he did not wish to do so.
Given that DSC McKay had seemingly anticipated the possibility that the accused would seek the opportunity to communicate with a lawyer and it was known that the accused would not arrive at Kalgoorlie until after the close of business that day, it is surprising and disappointing that no attempt was made to afford the accused that opportunity at some time during the next 4 1/2 hours the accused was in his custody as an arrested suspect prior to commencing the interview. There was no explanation given as to why attempts to arrange for a lawyer to be available for the accused when he arrived at Kalgoorlie were not made.
The fact that the accused was from a remote Aboriginal community in the western desert, was in police custody at a distant location - some 2 hours flying time from his home and had then been in custody as an arrested suspect for some 6 1/2 hours must be considered. In such circumstances it is likely that the accused would accept DSC McKay's advice that it was then too late to contact a legal representative rather than press his request.
In such circumstances, as soon as the accused expressly advised DSC McKay that he wanted to speak to a lawyer the interview should have been stopped and the accused afforded that opportunity rather than fobbed off with an explanation that it was then too late to do so. In the light of DSC McKay's evidence that he had previously suspended interviews until the next day when a person wished to speak to a lawyer, there was no explanation or excuse for not adopting that practice on this occasion. DSC McKay had already obtained a statement from the complainant and formed a view as to charging the accused.
On the state of the evidence before me I find that the accused expressed a desire to speak to a lawyer at Warakurna and reiterated that request at Kalgoorlie when he was being interviewed. It is clear that nothing was done, either before the accused departed Warakurna or when he arrived at Kalgoorlie to afford the accused the opportunity to communicate with a legal representative.
The measure of response of a police officer when an accused indicates that he wished to communicate with a lawyer was considered by Blaxell J in Wright. At [161] ‑ [164] Blaxell J said:
It is quite sensible and logical that s 138 does not explicitly require the officer in charge to 'afford' those rights at a time when he or she is not necessarily in a position to do so. It is also logical that the officer must first provide information on the existence of the rights which otherwise might not be known to the suspect. Without that knowledge the suspect would not be in a position to exercise the rights. [161]
Although s 138 is silent as to the duty of an officer when a suspect expresses the wish to exercise one of the rights of communication, the Act clearly requires that there be a reasonable opportunity for the suspect to do so. Given that s 139(3) provides that an arrested suspect should ordinarily be detained in the company of an officer, any reasonable opportunity to communicate can only occur with the cooperation of that officer (eg by the provision of a telephone and telephone book). [162]
In my view, it is also significant that s 138(4) refers to a 'right to communicate or to attempt to communicate' as distinct from a 'reasonable opportunity' to do so. This conversion in the nature of the rights conferred by s 137(3) (c) and s 138(2) (c) occurs in the context of the circumstances in which an officer may 'refuse' an arrested suspect that right. Clearly such a refusal can only be in response to a request by an arrested suspect to be able to exercise the right. [163]
In light of these considerations it is my opinion that when the Act (and particularly s 137, s 138 and s 139) is construed as a whole, an arrested suspect's right to communicate arises as soon as he or she expresses the wish to exercise that right. In the absence of any reasonable suspicion under s 138(4) the officer then detaining the arrested suspect is obliged to afford the suspect that right. [164] (emphasis added)
I find that the conduct of DSC McKay by advising the accused that it would not be possible to contact a lawyer due to the lateness of the hour, without first making any enquiry or allowing the accused the opportunity to do so denied the accused the opportunity to communicate with a legal representative.
At all material times DSC McKay was aware that the accused would or could be represented by the ALS however there was no attempt made to facilitate the accused contacting that office – either during office hours or after. To advise the accused that it was too late – without first making any enquiry as to the opportunity of the accused to communicate with a lawyer was materially misleading. I do not accept DSC McKay's assertion that 9 out of 10 times he has tried to contact a lawyer after hours he has been unsuccessful – particularly giving his evidence in cross‑examination that in his experience
… a number of times we have tried calling lawyers and that, that after business hours you just get answering services, or it just rings out.
In my view, even if DSC McKay's experience was as he suggests, the accused was entitled to be afforded the opportunity to try to contact a legal representative. No attempt whatsoever was made to afford the accused the opportunity to communicate with a lawyer and he was misled as to his opportunity to do so. It was accepted by the State that an after hours contact service was available for indigenous persons wishing to access legal representation from the ALS.
The accused had been detained as an arrested suspect for over 6 1/2 hours before the interview was undertaken. The cause of the long delay before seeking to interview the accused lies entirely at the door of the police officers handling the matter. From the moment of his arrest, the accused was dependent upon the arresting officers to afford him the opportunity to contact a legal representative. The decision to transport him to Kalgoorlie to be interviewed was made by DSC McKay, well knowing that the accused would not arrive in Kalgoorlie until after business hours – seemingly to suit the convenience of the arresting officers without any regard to the rights of the accused as an arrested suspect.
The obligation of the interviewing officer pursuant to s 138(3)(b) of the Act is to afford an arrested suspect his rights under s 138(2) as soon as practicable after the arrest.
No attempt had been made to contact anyone from ALS at that time or prior to the accused's departure from Warakurna.
In this case the accused, a relatively unsophisticated Aboriginal person, had made it clear that he wanted to speak with a lawyer. At that time the accused had been in custody almost 7 hours and was exhibiting signs of fatigue.

There was no evidence that there was anything preventing the police from suspending the interview for a short time while contact was made with either that lawyer or someone else from the ALS.
The interview proceeded without any attempt to contact either a lawyer or the ALS with the accused then being inadequately cautioned as to the consequences of his continued participation in the interview.
Whilst DSC McKay gave the accused a choice to continue with the interview, stating that 'it is up to you', he did not expressly tell the accused that the interview could be suspended for a time while an attempt was made to contact a lawyer at the ALS or defer the interview until the next day. In such circumstances, I find that DSC McKay conveyed to the accused the impression that his only choice was to continue the interview at that time.
Taking into account these circumstances and the accused's personal vulnerability, I consider that DSC McKay should have postponed the interview until, at the very least, the accused had been afforded the opportunity to attempt to contact the ALS, even if that meant deferring the interview until the next morning. The right of an arrested suspect to the reasonable opportunity to communicate with a lawyer is not restricted by normal business hours and the possibility that a lawyer may not be contacted immediately – particularly if the arrested suspect had expressed such desire within normal business hours.
Given that the interview was being conducted outside business hours – essentially entirely at the behest of the police as a result of their logistical arrangements for the day, every effort should have been made to ensure that the accused was afforded the rights to which he was entitled under s 138(3) of the Act.
I find that the interview proceeded without the accused being afforded a reasonable opportunity to communicate or attempt to communicate with a lawyer. It follows from my findings that I am satisfied that the statement of the accused obtained in the interview conducted at Kalgoorlie on 30 September 2009 was taken in breach of s 138(3) of the Act. In my opinion to not afford an accused the opportunity to contact a legal practitioner for over 6 1/2 hours and then suggest that it is too late to do so completely ignores the obligations cast upon the police officer dealing with an arrested suspect under the Act.
In the light of the accused's objection, the VROI is inadmissible unless the court otherwise allows it to be admitted into evidence: s 154 of the Act.
In determining whether evidence should be admitted those factors listed in s 155(3) of the Act must be considered. The issue of common law consideration such as unfairness may be considered when looking at those criteria when undertaking the balancing exercise under s 155(2): see Wright [48] (McLure P) and [188], [206] (Blaxell J).

Discretionary considerations

The factors that I must take into account under the Act are as follows.

(a) Any objection to the evidence being admitted

The accused has objected to the evidence being admitted. As observed by Blaxell J in Wrightit is necessary to consider the question of whether it is unfair to the accused and further, whether it would be contrary to public policy to admit the interview.
The aspect of unfairness includes the failure of the police to afford the accused his right to communicate with a lawyer under s 138(2). Notwithstanding my finding that the admissions were voluntary and reliable, unfairness arises in the context as to whether the admissions would have been made at all if the accused had been afforded the opportunity to obtain legal advice prior to the interview and properly cautioned as to the consequences of so doing.
The public policy consideration is also important. To endorse such conduct would be to defeat the object of the Act. As McKechnie J pointed out in Cox v The State of Western Australia [2008] WASC 101 [52] ‑ [54], it is important that courts are scrupulous in ensuring that rights given to an accused under the Act are complied with, particularly those who may be disadvantaged by way of background, education, age or other factors. Given the accused's background and circumstances, the arresting officers should have been zealous to ensure that he was afforded a reasonable opportunity to communicate or attempt to communicate with a lawyer within a reasonable time after his arrest – and not leave it until it was believed to be too late and then plough on with the interview regardless of the accused's rights under the Act.

(b) The seriousness of the offence in respect of which the evidence is relevant

The offence with which the accused is charged is a serious offence. If the accused was convicted of such offence, in all probability he would receive a custodial sentence to be immediately served.

(c) The seriousness of any contraventions of the Act in obtaining the evidence

It is a pre‑condition of the exercise of the power of arrest of a suspect that he or she is informed of and afforded his or her rights under the Act. In this case the accused was not afforded any opportunity to communicate with a legal practitioner. The interview should not have taken place without some attempt being made to afford the accused his rights to do so. I consider such contravention of the Act is serious.
Further, the consequences of the failure to afford the accused an opportunity to communicate with a legal practitioner were compounded by the failure to properly caution the accused. The interview was conducted in circumstances where the accused had not been given an opportunity to obtain legal advice and further, had not been properly cautioned as to the consequences of participating in the interview.
The question of unfairness must be considered in the context of the overall fairness in relation to the whole of the circumstances including the combined effect of the failure to fully comply with both s 138(2)(b) and s 138(2)(c) of the Act.

(d) Whether any contravention of the Act was intentional or reckless or arose from an honest and reasonable mistake of fact

I do not consider that DSC McKay acted intentionally in breach of the Act but in all the circumstances his actions amounted to a reckless disregard for the rights of the accused. DSC McKay was aware of his obligations under the Act but elected to ignore them by failing to make any attempt to afford the accused an opportunity to communicate with a lawyer notwithstanding having become aware of his desire to do so some hours before the interview. When the accused requested to speak to a lawyer during the VROI, he should have been given the opportunity to do so and the interview suspended
There is no mistake of fact in this case. Having then made no attempt whatsoever to do so, I do not consider there was any reasonable basis for DSC McKay to believe that the accused would not be able to contact a legal practitioner that night.

(e) The probative value of the evidence

The evidence is clearly highly probative. The probative value of itself does not justify its admission.

(f) Any other matter the court thinks fit

Nothing has been brought to the attention of the court.

Summary

As noted by Blaxell J in Wright [117], referring to the judgment of Deane J in Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177, 202, the exercise of the public policy discretion requires a balancing of competing policy considerations.
In Pollard, Deane J expressed the position as follows:
In any case where a voluntary confessional statement has been procured by unlawful conduct on the part of a law enforcement officer, there is conflict between the public interest in ensuring observance of the law by those entrusted with its enforcement and the public interest in the conviction and punishment of those guilty of crime. In the balancing process to resolve that conflict, the weight of the competing considerations of public policy will vary according to the circumstances of the particular case. The weight to be given to the public interest in the conviction and punishment of crime will vary according to the heinousness of the alleged crime or crimes and the reliability and unequivocalness of the alleged confessional statement. The weight to be given to the principal considerations of public policy favouring the exclusion of the evidence will vary according to other factors of which the most important will ordinarily be the nature and the seriousness of the unlawful conduct engaged in by the law enforcement officers. In that regard, a clear distinction should be drawn between two extreme categories of case. At one extreme are cases in which what is involved is an 'isolated and merely accidental non-compliance' (Bunning v Cross, 78) with the law or some applicable judicially recognized standard of propriety. In such cases, particularly if the alleged offence is a serious one, it would ordinarily be quite inappropriate to exclude evidence of a voluntary confessional statement on public policy grounds. The critical question in those cases will be whether the evidence should or should not be excluded on the ground that its reception would be unfair to the accused. At the opposite extreme are cases where the incriminating statement has been procured by a course of conduct on the part of the law enforcement officers which involved deliberate or reckless breach of a statutory requirement imposed by the legislature to regulate police conduct in the interests of the protection of the individual and the advancement of the due administration of criminal justice. … In such cases, the principal considerations of public policy favouring exclusion are at their strongest and will ordinarily dictate that the judicial discretion be exercised to exclude the evidence. (203 – 204)
The only matter which would justify admission in my view is 'the probative value of the evidence' however, that does not of itself justify its admission: s 155(4) of the Act.
As observed by McKechnie J in Cox at [46] the exercise of the discretion to reject the evidence requires the competing public requirements to be considered and weighed against each other. Whilst on one hand there is the public need to bring to conviction those who commit serious criminal offences, there is the public interest in the protection of the individual from unlawful and unfair treatment. As his Honour expressed at [46] 'convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price'.
Having considered the above factors and the circumstances of the breach of the Act in this case, I am not satisfied that it is appropriate to admit the VROI into evidence. Although the VROI was voluntarily obtained it was obtained in breach of the Act in circumstances that its admission into evidence should be refused.
Accordingly I find that the VROI is inadmissible as evidence in the prosecution of the accused.