The State of Western Australia v Samura [No 2] - [2019] WASC 391

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- SAMURA [No 2] [2019] WASC 391
CORAM:   DERRICK J
HEARD:   16 OCTOBER 2019
DELIVERED          :   1 NOVEMBER 2019
FILE NO/S:   INS 241 of 2018
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Prosecution

AND

SANNAH JR SAMURA
Accused

Catchwords:

Criminal law - Accused charged with murder - Objections to admissibility of interview - Voluntariness - Unfairness - Public policy

Legislation:

Criminal Code (WA)
Criminal Investigation Act 2006 (WA)

Result:

Objection to admissibility of interview dismissed

Category: B

Representation:

Counsel:

Prosecution	:	Ms L E Christian & Ms S M Cerqui
Accused	:	Mr G W Massey

Solicitors:

Prosecution	:	Director of Public Prosecutions (WA)
Accused	:	Holborn Lenhoff Massey

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

Collins v The Queen [1980] FCA 72; (1980) 31 ALR 257
EYO v The State of Western Australia [2019] WASCA 129
Hough v Ah Sam [1912] HCA 78; (1912) 15 CLR 452
Kelly v The State of Western Australia [2017] WASCA 221
MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512
McDermott v The King [1948] HCA 23; (1948) 76 CLR 501
Pearce v The State of Western Australia [2014] WASCA 156
Police v Dunstall [2015] HCA 26; (2015) 256 CLR 403
R v Clarke [1997] 97 A Crim R 414
R v Ireland [1970] HCA 21; (1970) 126 CLR 321
R v Lee [1950] HCA 25; (1950) 82 CLR 133
R v Swaffield [1998] HCA 1; (1998) 192 CLR 159
R v Williams (1992) 8 WAR 265
The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285
The State of Western Australia v Smith [2010] WASC 279
Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396
Van Der Meer v The Queen [1988] HCA 56; (1988) 82 ALR 10

DERRICK J:

Introduction

Mr Sannah Samura (the accused) is charged jointly with Mr Amirali Farsijani, Mr Poria Akhbari Sadiqi and Mr William Wade Kickett with one offence of murdering Mr Dejan Dimitrovski contrary to s 279 of the Criminal Code (WA) (the Code).
The trial of the accused and the three co‑accused is listed to commence on 28 January 2020. The trial has been set down for approximately three months.
The State intends to adduce at trial as part of its case against the accused the audio visual recording of an interview conducted with him on 16 November 2017 (the interview). The accused objects to the admissibility of the interview on the grounds of involuntariness, unfairness and public policy.
The hearing of the accused's objection to the admissibility of the interview took place before me on 16 October 2019. The State did not call any evidence at the hearing. The accused did not give or adduce evidence at the hearing.
For the reasons that follow I dismiss the accused's objection to the admissibility of the interview.

The alleged facts of the charged offence

The alleged facts of the charged offence, briefly stated, are as follows.
In August 2017 the accused and the three co‑accused were known to Mr Dimitrovski.
Between around 8.00 pm and 8.30 pm on Friday 4 August 2017, Mr Dimitrovski was at his home address of 43 Dallington Crescent in Balga.
On the evening of Friday 4 August 2017 the accused drove to Dallington Crescent in his 2007 white Mercedes SUV, model ML280cdi, registration 1 CNS 104. He arrived in Dallington Crescent at approximately 7.55 pm. He parked his vehicle close to Mr Dimitrovski's house. Also in the vehicle with the accused was Mr Farsijani.
Mr Kickett may also have been in the vehicle with the accused and Mr Farsijani at the time that the accused drove to Dallington Crescent.
The accused drove his vehicle to Dallington Crescent in convoy with another vehicle, a white Lexus sedan, registration 1 DZM 236. The Lexus was being driven by Mr Akhbari Sadiqi. Mr Akhbari Sadiqi also parked his vehicle close to Mr Dimitrovski's house.
On arriving in Dallington Crescent the accused, Mr Farsijani, Mr Akhbari Sadiqi and perhaps also Mr Kickett walked to and entered Mr Dimitrovski's house. At the time that they arrived at the house another male, Mr Saied Akbar Hussaini, was already with Mr Dimitrovski in the house.
If Mr Kickett did not travel to Dallington Crescent with the accused in the accused's vehicle, he arrived at Mr Dimitrovski's house earlier that evening with Mr Akbar Hussaini.
At some point the accused, Mr Farsijani, Mr Akhbari Sadiqi, Mr Kickett, Mr Akbar Hussaini and Mr Dimitrovski were in the theatre room on the second floor of Mr Dimitrovski's house. While in the theatre room one or more of the accused, Mr Farsijani, Mr Akhbari Sadiqi, Mr Kickett and Mr Akbar Hussaini assaulted Mr Dimitrovski. The assault caused significant injuries to Mr Dimitrovski.
At approximately 8.28 pm the accused, Mr Farsijani, Mr Akhbari Sadiqi and Mr Kickett left Mr Dimitrovski's house. The accused drove away in his vehicle at speed. Mr Akbar Hussaini remained at the house.
At approximately 8.29 pm Mr Akbar Hussaini made a triple 0 call which resulted in the police attending Mr Dimitrovski's house. When the police arrived at Mr Dimitrovski's house Mr Akbar Hussaini was present and was performing CPR on Mr Dimitrovski.
At the time of the arrival of the police Mr Dimitrovski was lying on the floor in the theatre room. He was lying on his back. He was wearing underpants, grey tracksuit pants and socks. He had visible significant injuries to his body. He was wet.
Underneath and near to Mr Dimitrovski were lengths of rope and duct tape. A pillow next to Mr Dimitrovski's head was significantly soiled with blood. Numerous empty 600 ml plastic water bottles were scattered near Mr Dimitrovski.
There was a large amount of blood near Mr Dimitrovski and on two couches that were close to where he was lying.
An ambulance attended Mr Dimitrovski's address. At about 8.45 pm the ambulance officers declared Mr Dimitrovski deceased.

The interview

I have watched the recording of the interview. I have been provided with a transcript of the interview as part of the prosecution brief.
The interview commences at 12.05 pm. It concludes at 4.19 pm.
The interview is conducted by Detective Sergeant Connelly and Detective Senior Constable Walker. The principal interviewing officer is Detective Connelly.
At the beginning of the interview Detective Connelly introduces himself and Detective Walker to the accused and obtains the accused's details.[1] He asks the accused various routine questions concerning the accused's level of education, whether he is affected by alcohol, drugs or medication, and whether he is suffering from any illness or injury.[2]
[1] Prosecution Brief (PB) 835 ‑ 836; ts 2 ‑ 3.
[2] PB 836 ‑ 838; ts 3 ‑ 5.
Detective Connelly next refers to the circumstances of the accused's arrest earlier that day and in effect confirms with the accused the rights that were given to the accused at that time. The following exchange then occurs:[3]
Connelly: Yep. Okay. So what I'm gonna do is I'm gonna go over, um, those rights and caution again.
Accused: Yep.
Connelly: Just so that, um, anyone watching this tape knows that you understand that, your, ah, legal rights. Um, in relation to the rights that we, we've given you already ---
Accused: Mmm.
Connelly: You have, um, been given the opportunity to exercise some of those rights. So you said talk to a legal representation, did you speak to a lawyer?
Accused: Yeah, I did. I did speak to, um, my lawyer, Jeremy Noble.
Connelly: Yep. Okay. And he gave you some legal advice?
Accused: He gave me some legal advice, that's correct.
[3] PB 839 ‑ 840; ts 6 ‑ 7; 12:11.
After the above exchange Detective Connelly confirms with the accused that he has been given the opportunity to make contact with family members.[4] Having obtained this confirmation Detective Connelly then proceeds to caution the accused. The relevant exchange is as follows:[5]
[4] PB 840; ts 7.
[5] PB 841 ‑ 843; ts 8 – 10; 12:13.
Connelly: Okay. I wish to talk to you about the murder of Dejan Dimitrovski ---
Accused: Mmm.
Connelly: That occurred about 8 o'clock in the evening on the 4th ---
Accused: Yeah.
Connelly: Of August ---
Accused: Mmm hmm.
Connelly: 2017 ---
Accused: Yep.
Connelly: At 43 Dallington Crescent in Balga.
Accused: Mmm hmm.
Connelly: Before I do, however, I advise you that you're not obliged to say anything unless you wish to do so and anything you do say or do will be recorded and may be given in evidence.
Accused: Mmm hmm.
Connelly: You can answer some questions and not others.
Accused: Mmm hmm.
Connelly: Do you understand what I've just said?
Accused: Yep.
Connelly: Okay. Just so that anyone watching this tape knows that you understand, can you, in your own words, tell me what it means?
Accused: Oh, well, basically I don't need to speak to you guys about anything. I can choose to answer some question, and I can choose to not answer some question.
Connelly: Okay. Alright. So the choice to answer questions is yours.
Accused: Yeah.
Connelly: Okay. Um, if you do not wish to answer a question, I would appreciate if you would say no comment.
Accused: Mmm.
Connelly: At least myself and, um, and, ah Detective Walker will know that you don't wish to answer the question.
Accused: Yep.
Connelly: It's, it's not that you don't know.
Accused: Yep.
Connelly: Alright?
Accused: Just, um, before we go on, um, I was advised obviously, like, I spoke to my legal adviser and, advised to said, um, no comment for now.
Connelly: Okay. Well ---
Accused: Um I um, I also advise, um, been advised legally to say no comment to any of the questions at the moment.
Connelly: Okay.
Accused: So I'll just say ---
Connelly: Okay.
Accused: Yeah.
Connelly: Um, look, absolutely. That's, um, that's your right.
Accused: Yeah.
Connelly: That's your, um, your legal advice you've been given.
Accused: That's correct.
Connelly: Um, but in fairness to yourself ---
Accused: Mmm.
Connelly: And also, ah, due to the serious, oh, the seriousness of the allegations ---
Accused: Mmm.
Connelly: We still have some questions that we wish to, ah, put to you.
Accused: Mmm hmm.
Connelly: Um, and also, um, we would invite, we would invite you ---
Accused: Yeah.
Connelly: To, um, participate in the interview.
Accused: Mmm hmm.
Connelly: But it's up to you on how you wish to answer those questions.
Accused: Yep.
Connelly: Okay? So I've given you the, the caution ---
Accused: Yeah.
Connelly: Which is that you don't have to speak to us unless you wish to do so, but anything you do say is going to be recorded by the camera.
Accused: Yep.
Connelly: And also the, ah, microphones in this room.
Accused: That's alright.
Connelly: Okay?
Accused: Yep.
At this point Detective Connelly asks Detective Walker if he is happy with the accused's understanding of the caution. In response to this question Detective Walker engages in the following exchange with the accused:[6]
[6] PB 843; ts 10; 12:15.
Walker: Yep. If you do say something how's it gonna be recorded?
Accused: It will be recorded by the camera and also the microphone underneath the table.
Walker: Yep. And when we say that we'll produce it as evidence, where would we do that?
Accused: Sorry?
Walker: If we say we're gonna produce that recording as evidence, where ---
Accused: Oh, you can use it against me in court [indistinct].
Walker: Not so much against you, but it would be used as evidence, so where would we do that? Where would we use evidence?
Accused: In court, isn't it?
Walker: Yeah. Yeah. Okay.
Detective Connelly next confirms with the accused that he has not been spoken to about the matter since having been taken into police custody.[7] The following exchange then takes place:[8]
Connelly: Okay. Alright. What I'm going to do is I'm gonna ask you, um, to tell me your knowledge regarding the death of Dejan Dimitrovski.
Accused: Just like I advised earlier, um, I've been advised by the legal, um, advisors to say no comment to any question at the moment.
Connelly: Okay. Okay. Okay. In that case I'm going to ask you some, some questions, um, in relation to things and you can choose, um, whether or not to answer them based on ---
Accused: Mmm hmm.
Connelly: Your legal advice and the rights that I've given you. Okay?
Accused: Yeah.
[7] PB 843 ‑ 844; ts 10 ‑ 11; 12:16.
[8] PB 844; ts 11.
From this point in the interview Detective Connelly proceeds to ask the accused some questions about where he lives, who he lives with, when he arrived in Australia, what his first language is, where he was born, whether he has a nickname and the name of his father. The accused answers all these questions.[9]
[9] PB 844 ‑ 846; ts 11 ‑ 13.
Detective Connelly next asks some questions of the accused about whether he made use of a mobile phone or mobile phones on 4 August 2017. Detective Connelly also questions the accused about whether he was using a particular mobile phone number on 4 August 2017. The accused answers all of the questions asked of him.[10]
[10] PB 846 ‑ 850; ts 13 ‑ 17.
Detective Connelly next moves to asking the accused questions about his sources of income and his bank account. The accused answers the questions asked of him.[11] The following exchange then occurs:[12]
Connelly: No problem. Um, Sannah, are you in a relationship at the moment?
Accused: To be honest I would say, could I just say no comment to any of those at the moment. No comment.
Connelly: Yeah. Absolutely.
Accused: Just, um ---
Connelly: I mean, that's that that's up to you.
Accused: Like, I'll, I'll answer all my personal. Like I said, um, I've been advised legally just to answer, I'm gonna answer all my personal stuff to you guys and ---
Connelly: Okay.
Accused: Just to the rest I'll just say no comment, no comment.
[11] PB 850 ‑ 851; ts 17 ‑ 18.
[12] PB 851; ts 18; 12:26.
A short time later during the interview, after the accused has answered a number of further questions asked by Detective Connelly, the following exchange occurs:[13]
[13] PB 853 ‑ 855; ts 20 ‑ 22; 12:30.
Connelly: Okay.
Accused: Um, you guys are taking this serious, it's a very serious matter to me and my family as well, you know, and it's kind of like a shame, an embarrassment for my culture, so ---
Connelly: Okay.
Accused: And, I've never had a lawyer, never in my whole life.
Connelly: Mmhmm.
Accused: I've never had a lawyer until this incident has happened, so ---
Connelly: Okay.
Accused: Yeah.
Connelly: Well, Sannah, in relation to this, um, it's, it's an investigation we have been, we've been, um, working on since the 4th of August.
Accused: Yep, you mentioned --- [indistinct].
Connelly: It's a serious matter. It is a murder.
Accused: Mmhmm.
Connelly: Um, we, you are a suspect ---
Accused: Mmhmm.
Connelly: In this matter.
Accused: Mmhmm.
Connelly: And the intention today is to, um, to ask you questions, put the allegation to, to yourself ---
Accused: Mmhmm.
Connelly: And ask you to, um, comment on that.
Accused: Mmhmm.
Connelly: Whether you wish to participate in the interview and, answer questions is entirely up to yourself.
Accused: Mmhmm.
Connelly: You have been given your, um, opportunity to seek legal advice.
Accused: Mmhmm.
Connelly: And you've also been told your rights which is you don't have to say anything unless you wish to do so.
Accused: Mmm.
Connelly: We will not take that personally.
Accused: Mmhmm.
Connelly: Okay? But we'll continue to put questions to you, um, based on the seriousness of the offence that's under investigation.
Accused: Yep.
Connelly: And it's your choice as to whether or not you answer them.
Accused: Yep.
Connelly: Okay?
Accused: Mmhmm.
Connelly: So if you do not wish to answer those questions, it's perfectly okay to say no comment.
Accused: Yep.
Connelly: And at least we know where we stand with you. Okay?
Accused: No problem.
Connelly: In terms of that it's not that you don't want, it's not that, ah, you know the answer and don't want to tell us, it's ---
Accused: I don't know the answer, but ---
Connelly: Yeah.
Accused: You think I may know the answer, or, you know, um yeah.
Following the above exchange Detective Connelly proceeds to further question the accused. Detective Walker also asks some questions but most of the questioning is undertaken by Detective Connelly. The questioning proceeds for some considerable period of time. The accused answers the vast majority of the questions asked of him. However, on occasions he does elect not to answer a question by saying 'no comment' or by declining to provide the information sought by the question.[14] It is fair to say that the vast majority of the questions that the accused elects not to answer are directed at ascertaining the identity of persons that he has referred to, but not identified, in answering other questions. The accused's approach in this regard is consistent with his earlier statement to the detectives that he would answer all his 'personal stuff' and 'to the rest … say no comment'.
[14] PB 856, 858, 859, 860, 861, 865, 868, 878, 889, 895, 896, 901; ts 23, 25, 26, 27, 28, 32, 35, 45, 56 and 62, 63, 68.
At 1.44 pm Detective Connelly states to the accused that the interview has been going for a 'little while' and that it might be a good time to have a break. A break then occurs.[15]
[15] PB 907 ‑ 908; ts 74 ‑ 75.
Up until the time of the break the form and tone of the questioning by the detectives, while relatively direct and to the point, is not particularly assertive or confrontational. The accused does not appear stressed or anxious. To the contrary, he comes across in answering the questions as relatively relaxed, calm and confident.
The interview is resumed at 2.11 pm. On the resumption of the interview the accused confirms that during the break no one has spoken to him about the matter, that he has not been threatened, that he has not been promised anything in return for participating in the interview and that he does not have any complaints about the way that he has been dealt with during the break.[16] Detective Connelly advises the accused that now that the interview has resumed 'the same rules apply' and that he still has the same rights.[17] Detective Connelly again tells the accused that he does not have to say anything unless he wishes to do so and that anything he does say would be recorded and may be given in evidence.[18] The interview then proceeds.[19] Detective Connelly undertakes the vast majority of the questioning, although on a limited number of occasions Detective Walker does question the accused. During this portion of the interview the accused, save for three occasions, answers all of the questions asked of him.[20]
[16] PB 908; ts 75.
[17] PB 908; ts 75.
[18] PB 908 ‑ 909; ts 75 ‑ 76.
[19] PB 909 ‑ 1002; ts 76 ‑ 169.
[20] PB 915, 918; ts 82, 85.
About 25 minutes after the break Detective Connelly reminds the accused that he is being interviewed as a suspect for the murder of Mr Dimitrovski.[21] Detective Connelly tells the accused that in order for the police to make an assessment of his 'involvement' they need to verify where he was and what his movements were at around the time of the murder.[22] Detective Connelly expresses the opinion that every time he asks the accused a question in relation to where he was at around the time of the murder, the accused does not provide any details, specifically details of the names of people, locations and the names of people that borrowed his car.[23] Detective Connelly states to the accused that these 'are all things that are very important to…establishing your whereabouts on the night'.[24] At this point the accused interjects and tells the detectives where he asserts that he was at the relevant time on the night in question and explains that he does not want 'to get other people incriminated in this situation'.[25] Detective Connelly then states to the accused that it could 'only benefit' him to tell the police about his movements on the night in question and about who borrowed his car on that date because this would enable the police to make a formal assessment of whether he was involved in the commission of the offence.[26] The accused responds to this statement by saying, 'I totally understand what you're saying'.[27] Detective Connelly then proceeds to further question the accused.
[21] PB 923; ts 90; 14:34.
[22] PB 923; ts 90.
[23] PB 923 ‑ 924; ts 90 ‑ 91.
[24] PB 924; ts 91.
[25] PB 924; ts 91.
[26] PB 924; ts 91; 14:35.
[27] PB 924; ts 91; 14:35. The transcript erroneously records the accused as saying, 'I don't understand what you're saying'.

A few moments after the exchange referred to in the preceding paragraph, Detective Connelly tells the accused 'that there are a lot of things that we know because we've been conducting a lot of inquiries in relation to this … and also we've spoken to a lot of people'.[28]
[28] PB 925; ts 92; 14:36.
It is at about this point in the interview that Detective Connelly starts to reveal to the accused in some detail evidence that had been obtained by the police in the course of their investigation into Mr Dimitrovski's death relating to the accused's movements on 4 August 2017.[29] Detective Connelly questions the accused by reference to this evidence.
[29] Earlier in the interview, shortly after the break, Detective Connelly did, in the course of questioning the accused, make some reference to evidence that the police had obtained relating to the accused's use of a mobile telephone: PB 909 ‑ 915; ts 76 ‑ 82. However, it is not until this later point in the interview, after he makes reference to having spoken to a lot of people, that Detective Connelly commences to make relatively detailed reference to evidence that had been obtained by the police. The evidence referred to by Detective Connelly includes, but is not limited to, still shots obtained from surveillance cameras, mobile telephone call charge records, and evidence of communications between the mobile telephone alleged to have been in the possession of the accused on the relevant date and mobile telephone cell towers located in relatively close proximity to Mr Dimitrovski's residence.
It is, I think, fair to say that from around the time that Detective Connelly starts questioning the accused by reference to the evidence obtained by the police in the course of their investigation the form and tone of Detective Connelly's questioning changes. The questioning, although not rude or intimidatory, becomes more assertive, persistent and confrontational. Detective Connelly, and for that matter Detective Walker also, in questioning the accused by reference to the obtained evidence challenge some of the answers given by the accused and implicitly, if not expressly, convey their doubts about the truthfulness of the answers being given by the accused. Indeed, towards the latter part of the interview Detective Connelly expressly states his doubts about the truthfulness of the accused's version of events, or more specifically, the accused's denials that he was involved in the murder of Mr Dimitrovski.[30] It is during this latter portion of the interview that Detective Connelly expressly and directly challenges the accused's denials and puts to the accused that he was involved in the murder of Mr Dimitrovski.[31]
[30] PB 962 ‑ 964; ts 129 ‑ 131, 135 ‑ 136, 148.
[31] See for example, PB 970 and 977; ts 137 and 144.
Further, during this portion of the interview the accused does provide some information to the police that he had, during the earlier part of the interview prior to the break, declined to provide. The most obvious example of this occurring is the accused telling the police who he asserts had borrowed his car at the time of the alleged murder of Mr Dimitrovski.[32]
[32] PB 942 ‑ 943; ts 109 ‑ 110.
Despite the above referred to change in the form and tone of the questioning of the accused, the accused throughout the questioning appears to remain relatively composed and confident. He does not exhibit any obvious signs of stress or upset. He provides a number of lengthy and relatively detailed answers to the questions asked of him. Indeed, at one point he demonstrates the presence of mind to ask Detective Connelly how he is able to assert that the vehicle shown in still shots obtained from surveillance footage is his (that is, the accused's) vehicle when it is not possible to see the registration plates of the vehicle in the still shots.[33]
[33] PB 954 ‑ 955; ts 121 ‑ 122; 15:19.
Towards the end of the interview the following exchange occurs:[34]
Connelly: Okay. Sannah, like I said at the start of this, the purpose of today is for you to give your account as to your whereabouts.
Accused: Yep.
Connelly: And, whether or not you have any knowledge in relation to the, the murder of Dejan Dimitrovski in August.
Accused: Mmm.
Connelly: Can I give you one last opportunity to tell us, do you have any knowledge of the death of Dejan Dimitrovski? Have you been involved in it? Were you there that night?
Accused: Again, like I said, I did not inv-, I did not kill Dejan. I did not involve in anything to his death.
[34] PB 991; ts 158.
At the end of the interview the following exchange occurs:[35]
[35] PB 1001 ‑ 1002; ts 168 ‑ 169; 16:19.
Connelly: Okay. So, um, I've just got some concluding questions.
Accused: Alright.
Connelly: Has this interview been conducted of your own free will?
Accused: Yeah.
Connelly: Have you been threatened at all to participate in this interview?
Accused: No.
Connelly: Have you been promised anything in return for participating in this interview?
Accused: No.
Connelly: Do you have any complaints about the way the interview was conducted or about the way you've been treated by police today?
Accused: No.
Connelly: Is there anything you wish to say?
Accused: No.
Having asked these concluding questions Detective Connelly terminates the interview.
The accused gives the above quoted answers to the concluding questions without hesitation.

The objection on the ground of involuntariness

Legal principles

In order to be admissible a statement made by an accused person that contains an admission against their interest must have been made voluntarily; that is, in the exercise of a free choice to speak or be silent and not because their will has been overborne.[36]
[36] R v Lee [1950] HCA 25; (1950) 82 CLR 133, 149; R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 [50]; The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285 [46].
In the absence of evidence to the contrary it is presumed that a statement that contains an admission against interest was made voluntarily.[37] However, if there is evidence that casts doubt on the voluntariness of the statement, the State must prove on the balance of probabilities that the statement was made voluntarily.[38]
[37] Hough v Ah Sam [1912] HCA 78; (1912) 15 CLR 452, 457; R v Williams (1992) 8 WAR 265, 271; The State of Western Australia v Silich [47]; Kelly v The State of Western Australia [2017] WASCA 221 [35]; EYO v The State of Western Australia [2019] WASCA 129 [50].
[38] R v Lee [144]; MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512, 519; R v Williams [271]; The State of Western Australia v Silich [47]; Kelly v The State of Western Australia [35]; EYO v The State of Western Australia [50].
An accused's will may be overborne as a result of conduct that includes the holding out of an inducement by a person in authority, threat of harm, duress, intimidation, persistent importunity, or sustained or undue influence or pressure.[39]
[39] McDermott v The King [1948] HCA 23; (1948) 76 CLR 501, 511; Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396.
Voluntariness is not an issue to be determined by reference to some hypothetical standard. It requires a careful assessment of the effect of the actual circumstances of the case upon the will of an accused.[40]
[40] Collins v The Queen [1980] FCA 72; (1980) 31 ALR 257, 307.
Recognition of the right to silence and fairness to a suspect requires that police should issue a caution and not whittle down the effect of the caution by pressuring or cajoling the suspect into speaking once they have clearly indicated their wish to remain silent.[41] Nonetheless, the fact that an accused indicates that they do not wish to answer questions does not of itself require the conclusion that their subsequent participation in an interview is involuntary. The question is one of degree and will depend on the particular circumstances.

Accused's submissions

[41] Van Der Meer v The Queen [1988] HCA 56; (1988) 82 ALR 10, 19; Pearce v The State of Western Australia [2014] WASCA 156 [39]; EYO v The State of Western Australia [77].

The accused places his primary, but not exclusive, reliance on the early portions of the interview set out in [26] ‑ [28] above. The accused submits that Detective Connelly, by telling him that 'in fairness to him' he and Detective Walker still had some questions that they wanted to put to him, suggested to him that it was to his advantage to participate in the interview, or to his disadvantage not to participate in the interview, and to this extent held out an inducement to him to participate in the interview. The accused submits that the inducement was in effect repeated and reinforced later in the interview after the break when Detective Connelly made the statements referred to in [37] above, particularly the statement that it could 'only benefit' him to tell the police about his movements on the night in question and about who borrowed his car on that date because this would enable the police to make a formal assessment of whether he was involved in the commission of the offence. The accused submits that Detective Connelly, by stating to him that he and Detective Walker wished to ask him questions, and by then proceeding to do so, whittled down the effect of the caution and pressured or cajoled him into answering questions. The accused submits that for these reasons I should (despite the absence of any evidence given by him) infer that he did not participate in the interview voluntarily, that is, in the exercise of a free choice to speak or be silent.
The accused does not suggest that he did not understand his right not to answer questions and not to speak to the police. Rather, his contention is that despite his understanding of this right his will was overborne by the inducement that he asserts was held out to him and by the conduct of the detectives in continuing to question him after he had told them that he had received legal advice to say 'no comment' to questions asked of him.

Analysis and ruling

I do not accept the submissions made by the accused. I am satisfied that the accused did participate in the interview voluntarily. I am so satisfied for the following reasons.
First, at the commencement of the interview the accused was properly cautioned. He was as part of the caution told that he was 'not obliged to say anything' unless he wished to do so.[42]
[42] See the portion of the interview quoted in [26].
Second, Detective Connelly, immediately after advising the accused that it was his intention to put questions to him, repeated the caution.[43]
[43] See the portion of the interview quoted in [26].
Third, it is clear from the interview that the accused understood the caution and in particular his right not to answer any questions asked of him. As I have just pointed out, the accused does not suggest otherwise.
Fourth, this is not, in my view, a situation in which the approach adopted by Detective Connelly, in responding to the accused's references to his legal advice by stating that he still had some questions that he wanted to put to the accused, was unduly persistent or overbearing so as to constitute an impermissible whittling down of the effect of the caution with the consequence that the accused was pressured or cajoled into speaking. This is not a case in which Detective Connelly persistently asked questions to which he did not receive an answer until the accused's resistance was effectively worn down and he commenced to answer questions. Rather, the only question that Detective Connelly asked and the accused refused to answer before the accused commenced to answer questions asked of him was the question in which Detective Connelly asked the accused to tell him about his knowledge regarding the death of Mr Dimitrovski. In addition, on those few occasions that Detective Connelly did, in response to the accused's references to his legal advice, state to the accused that he still intended to ask him questions, he also made clear to the accused that it was his right not to answer the questions.[44]
[44] See the portions of the interview quoted in [26], [28] and [32] above.
Fifth, although Detective Connelly's statement that he and Detective Walker still had some questions that 'in fairness' to the accused they wanted to put to him might be said to carry with it the suggestion that it would be advantageous to the accused to participate in the interview, or disadvantageous to him not to participate in the interview, I am not persuaded that the statement did, when considered in the context of the entirety of the exchanges between the detectives and the accused, amount to an inducement of such significance as to overcome the exercise by the accused of his free choice to speak or be silent. In this regard I make the following observations.
The statement was made by Detective Connelly together with a reference to the seriousness of the allegation. That is, what Detective Connelly said was that in fairness to the accused and due to the seriousness of the allegation he and Detective Walker had some questions that they wanted to put to the accused. Thus Detective Connelly did not suggest that the only reason he wanted to ask questions of the accused was to accord fairness to him.
Immediately after making the statement in question, Detective Connelly also said to the accused that he would therefore 'invite' the accused to 'participate' in the interview and that it was up to the accused how he wished to answer the questions asked of him.[45] The accused did not, in response to this statement, assert that he did not want to participate in the interview. Then, just moments later, after Detective Walker's exchange with the accused relating to the accused's understanding of the caution,[46] the accused, despite the alleged 'in fairness' inducement, refused to answer the first substantive question asked of him (the question relating to his knowledge regarding the death of Mr Dimitrovski) by repeating his legal advice to say 'no comment'. [47] The accused's refusal to answer the question is inconsistent with the suggestion that Detective Connelly's 'in fairness' statement amounted to an inducement that overcame the exercise by the accused of his free choice to speak or be silent.
[45] See the portion of the interview quoted in [26].
[46] See the portion of the interview quoted in [27] above.
[47] See the portion of the interview quoted in [28] above.
Further, in response to the accused's refusal to answer the first substantive question asked of him, Detective Connelly while stating that he was going to ask the accused questions, also repeated that the accused could choose whether or not to answer the questions based on his legal advice and the rights that had been given to him.[48]
[48] See the portion of the interview quoted in [28] above.
In addition, when a little later in the interview after he had answered a number of questions the accused answered 'no comment' to a question about whether he was in a relationship, the accused proceeded to tell Detective Connelly that he would 'answer all my personal stuff' and that he would just say 'no comment' to the rest of the questions. Again, the accused's statement that he would say 'no comment' to certain questions is inconsistent with the suggestion that his will had been overborne by Detective Connelly's 'in fairness' statement.[49]
[49] See the portion of the interview quoted in [31] above.
Finally, later in the interview, after the accused had answered some further questions and made the statement about the detectives taking the matter seriously, Detective Connelly stated to the accused that it was his intention to ask him questions and to put the allegation to him, that whether he wished to participate in the interview and answer the questions was entirely up to him, that he would continue to put questions to the accused based on the seriousness of the offence under investigation and that it was his choice whether to answer the questions.[50] In other words Detective Connelly once again clearly stated to the accused his right to remain silent.
[50] See the portion of the interview quoted in [32] above.
Accordingly, and as I have stated, I do not consider that Detective Connelly's 'in fairness' statement can, when viewed in the context of the exchanges to which I have referred, be said to amount to an inducement of such significance as to overcome the exercise by the accused of his free choice to speak or be silent.
Sixth, the accused's conduct during the interview in declining to answer some questions but answering others indicates not only his understanding of the caution, but also the fact that his will had not been overborne and that he was answering questions in the exercise of a free choice to do so. The fact that the questions that the accused chose not to answer related in the main to the identification of persons that he had referred to but not identified does not provide a basis for concluding otherwise.
Seventh, the mode of questioning by the detectives while on occasions assertive and confrontational did not go beyond what was appropriate and proper. Police officers investigating serious crimes are permitted, if reasonably appropriate, to interrogate with persistence and incredulity.[51]
[51] Kelly v The State of Western Australia [51].
Eighth, at no time during the interview does the accused exhibit any signs of discomfort, stress, anxiety or upset. To the contrary, the accused at all times presents both by his demeanour and the substance of his answers to questions as relatively composed and confident (as opposed to 'anxious to please' which is how his counsel described his demeanour).[52] There is nothing in the accused's demeanour during the interview to indicate that his will has been overborne.
[52] ts 227, 16 October 2019.
Ninth, although Detective Connelly's statements in the latter portion of the interview referred to in [37] above, particularly his statement to the accused that it could 'only benefit' him to tell the police about his movements on the night in question and about who borrowed his car, were clearly made by Detective Connelly in an attempt to encourage or induce the accused to provide the information in question, I am not persuaded and am unable to infer, viewing the interview as a whole, that the statements did in fact operate so as to overcome the exercise by the accused of his free choice to speak or be silent. There is nothing in what the accused said in answer to questions asked of him from this point onwards that indicates that Detective Connelly's statements operated to overcome the accused's will. There is nothing in how the accused behaved or acted from this point onwards that indicates that Detective Connelly's statements operated to overcome the accused's will. It may be that the accused, having 'totally understood' Detective Connelly's statements, made a calculated decision to answer the questions that were from this point asked of him. However, this is not the same as saying that the statements overcame the exercise by the accused of his free choice to speak or be silent.
Tenth, at the end of the interview the accused expresses without reservation that the interview had been conducted of his own free will and that he had no complaints about the way that the interview had been conducted.
In summary, taking all of the above matters into account in conjunction with each other, I am satisfied on the balance of probabilities that the accused did participate in the interview voluntarily.

The objection on the ground of unfairness

Legal principles

Subject to the relevant provisions of the Criminal Investigation Act 2006 (WA), none of which are relevant in the present case, if a confessional statement is made voluntarily it is prima facie admissible. However, the court does have a discretion to exclude a voluntarily made admission against interest on the ground of unfairness.[53] The purpose of the discretion is to protect the rights and privileges of an accused including their procedural rights. The discretion is not concerned with whether the police have acted unfairly, but rather with whether or not it would be unfair to an accused to use their statements against them.[54]
[53] Kelly v The State of Western Australia [39] ‑ [40]; EYO v The State of Western Australia [50].
[54] Van Der Meer v The Queen [26]; The State of Western Australia v Silich [64] ‑ [65], [168].

The discretion to exclude a voluntarily made admission on the ground of unfairness is not limited to cases in which the admission has been procured by unlawful or improper conduct on the part of the police, but extends to all cases in which the admission of the evidence would be unfair to an accused.[55]
[55] R v Williams [273]; The State of Western Australia v Silich [65].
The fact that a police officer continues to question an accused after an accused makes a statement to the effect that they do not want to answer questions does not necessarily give rise to any relevant unfairness. Interviewing officers are generally entitled to ask further questions to clarify an accused's position and to determine whether a refusal applies to all questions or only a particular topic.[56] The question as to whether persistence in questioning has crossed the line so as to render it unfair to an accused to admit the evidence of a voluntarily made statement is one of degree and each case will depend upon its particular circumstances.[57]
[56] The State of Western Australia v Smith [2010] WASC 279 [10] ‑ [11]; EYO v The State of Western Australia [56].
[57] R v Ireland [1970] HCA 21; (1970) 126 CLR 321; R v Clarke [1997] 97 A Crim R 414, 419; The State of Western Australia v Smith [11] ‑ [13].
An accused's right to a fair trial may be jeopardised if an admission against interest is obtained from them in circumstances which affect the reliability of the admission. Thus unreliability is an important aspect of the discretion to exclude admissions against interest on the ground of unfairness but it is not the sole touchstone.[58] Unfairness may also arise where the admission might not have been made at all had the police investigation been properly conducted.[59]
[58] R v Swaffield [54], [78]; The State of Western Australia v Silich [58], [170].
[59] R v Swaffield [53] ‑ [54], [78].
An accused who asserts that it would be unfair to admit against them a voluntarily made statement against interest bears the onus of proving facts that would justify the exercise of the discretion in their favour.[60]

Accused's submissions

[60] MacPherson v The Queen [519] ‑ [520]; The State of Western Australia v Silich [171]; Kelly v The State of Western Australia [38].

The substance of the accused's submissions made in support of his contention that the interview should be excluded in the exercise of the unfairness discretion may be stated as follows.
First, the accused submits that at the beginning of the interview he clearly demonstrated that he did not want to answer any questions and did not want to participate in the interview in any meaningful way, and that in these circumstances the conduct of the detectives in continuing to question him and ignoring his second attempt to alert them to his legal advice by stating that they would proceed to ask him questions, renders it unfair to admit the evidence of the interview against him.[61]
[61] Accused's submissions, [8(a)], [8(d)], [14(b)].
Second, the accused submits that it would be unfair to admit the evidence of the interview against him because the detectives did not at any stage ask him if he was, despite the legal advice that he had received, prepared to participate in the interview. [62]
[62] Accused's submissions, [8(c)].
Third, the accused submits that the conduct of the detectives in asking him questions in the initial pre-break portion of the interview without revealing to him the evidence that had been obtained against him, and then only revealing the evidence obtained in the second portion of the interview after he had already answered a significant number of questions, renders it unfair to admit the evidence of the interview against him. The accused submits that once Detective Connelly told him that he and Detective Walker were 'in fairness' to him going to ask him questions, fairness dictated that they should, at the outset of the questioning, have 'laid out' all the evidence that they had obtained. The accused submits that the detectives should not have given him 'the opportunity to tell lies'[63] by asking him questions about matters in relation to which they had evidence without disclosing the evidence.
[63] ts 212, 16 October 2019.
Fourth, the accused submits that some of the answers given by him during the interview, including answers that the State intends to rely upon at trial as being lies revealing a consciousness of guilt, are patently unreliable and that this unreliability, in combination with the conduct of the detectives in continuing to question him after he had expressed a wish to remain silent, renders it unfair to admit the evidence of the interview against him.[64]

Analysis and ruling

[64] Accused's submissions, [14(b)].

I will deal with the accused's above referred to submissions in turn.
As to the first submission, it is of course the position that the accused did assert at the beginning of the interview that he had received legal advice to say 'no comment' to any questions asked 'for now' and 'at the moment'. It is, I think, tolerably clear that by making these statements the accused was indicating that he did not at that point in time intend to answer any questions asked of him. Nonetheless, in the circumstances of this case Detective Connelly was, in my opinion, having made clear to the accused that he was, as he had been legally advised, under no obligation to answer any questions, entitled to inform the accused that he intended to put questions to him and to proceed to do so for the purpose of ascertaining if the accused was, despite the advice that he had received, willing to answer any questions. Detective Connelly was, in my opinion, entitled to explore by a limited amount of questioning the extent of the accused's resolve to exercise his right to silence. I do not consider that the adoption of such an approach was unfair to the accused. Indeed, and as I have already pointed out, once Detective Connelly proceeded to ask questions the accused, having refused to answer the first question asked of him, then proceeded to voluntarily answer the questions asked of him.
The position may have been different if the accused had unequivocally stated at the outset of the interview that he did not want to proceed with the interview at all and that he wanted the interview to be brought to an end immediately. If that had occurred and the detectives had ignored the statement, told the accused that they were going to ask him questions nonetheless, and then proceeded to question him to any significant extent, it might be argued that it would be unfair to admit against the accused any answers that he eventually gave to questions asked of him even if he provided the answers voluntarily. Similarly, if the accused had, in accordance with his legal advice, repeatedly responded 'no comment' to a more lengthy series of questions asked of him by the detectives at the beginning of the interview but eventually succumbed to the ongoing questioning by commencing to voluntarily provide answers, again it might be argued that to admit the answers against him would be unfair. However, neither of these situations is what occurred in the present case. In short, this is not, in my opinion, a situation in which the persistence in questioning crossed the line so as to render it unfair to the accused to admit the evidence of his voluntarily provided answers.
It is not, in my opinion, correct to say that the detectives ignored the accused's second attempt to alert them to his legal advice. To the contrary, Detective Connelly expressly acknowledged the legal advice that had been given to the accused by saying:[65]
Okay. Okay. Okay. In that case I'm going to ask you some, some questions, um, in relation to things and you can choose, um, whether or not to answer them based on … your legal advice and the rights that I've given you. Okay?
[65] PB 844; ts 11. See the portion of the interview quoted in [28] above.
With respect to the accused's second submission, it is the case that the detectives did not expressly ask the accused if he was, despite the legal advice that he had received, prepared to participate in the interview. They could have done so (although they were not obliged to do so). However, the accused had right at the beginning of the interview made clear, in expressing his understanding of the caution, that he understood that he did not have to speak to the police if he did not want to.[66] Further, Detective Connelly did during the earlier part of the interview, and in the context of informing the accused that it was his intention to question him about the alleged offence, 'invite' the accused to 'participate in the interview' and tell the accused that whether he wished 'to participate in the interview and answer questions' was entirely up to him.[67] Viewed in these circumstances the detectives' failure to expressly ask the accused if he was willing to participate in the interview despite his legal advice does not, in my opinion, justify the conclusion that it would be unfair to the accused to permit the evidence of the interview to be admitted against him.
[66] See the portion of the interview quoted in [26] above.
[67] See the portions of the interview quoted in [26] and [32] above.
In relation to the accused's third submission, I do not accept that any unfairness to the accused in the relevant sense resulted from the way in which the detectives conducted the interview. Police officers conducting an interview with a suspect are not required, in order to accord fairness to the suspect, to commence their questioning by disclosing to the suspect the evidence that they have obtained which potentially implicates the suspect in the commission of the offence the subject of the interview. Further, the fact that Detective Connelly told the accused that he intended, in fairness to the accused, to put questions to him, does not alter the position. There is no apparent reason for concluding that Detective Connelly, by making this statement, brought upon himself an obligation to commence the interview by laying out to the accused the evidence that the police had obtained against him.
It seems to me that what really underlies this third submission is a complaint by the accused that during the initial part of the interview he gave some false answers that he would not have given had he been made aware of the evidence that the police had obtained against him from the beginning of the interview. As the prosecutor in effect put the point during her oral submissions, the accused 'elected to tell a bunch of lies' and is now asserting that it would be unfair to use the interview against him because he knows that the State will be submitting at trial that a number of his statements were lies (that is, lies reflecting a consciousness of guilt).[68] The fact that the accused may have deliberately given some false answers to questions asked of him during the initial part of the interview before he had been made aware of the nature and extent of the evidence that the police had obtained against him does not provide a basis for concluding that it would be unfair to permit the interview to be used against him.
[68] ts 222, 16 October 2019.
The accused's fourth submission that it would be unfair to admit the evidence of the interview against him given the apparent unreliability of a number of the answers given by him is misguided. The relevant question is whether it would be unfair to the accused to admit the interview against him because any admission against interest made by him (that is, any admission made by him that directly or indirectly implicates him in the commission of the offence) was obtained in circumstances that affected the reliability of the admission. In the present case the accused does not suggest that any of the relatively limited admissions that he made during the interview (for example, his admissions as to his relationship with Mr Dimitrovski and his admissions as to the clothing that he was wearing on the day that the deceased was murdered) are unreliable. Rather, his contention is that other statements made by him, which were not admissions but which the State intends to contend were lies revealing a consciousness of guilt, are unreliable. The unreliability of such statements does not provide a basis for concluding that it would be unfair to use the interview against the accused. Lies are by their very nature unreliable. Further and in any event, in my opinion, for reasons that are apparent from what I have already said, there is nothing in the way in which the interview was conducted that can be said to have resulted in any of the admissions made by the accused during the interview, or for that matter any of the statements made by the accused during the interview, being obtained in circumstances that affect their reliability. If some of the answers given by the accused during the interview are 'unreliable', there is no basis for concluding that the unreliability was in any way the product of the manner in which the interview was conducted as opposed to a deliberate decision on the part of the accused to provide the answers that he did.
For the reasons I have stated, I am not persuaded that it would be unfair to the accused for the evidence of the interview to be admitted against him. I therefore decline to exercise my discretion to exclude the interview on the ground of unfairness.

The public policy objection

Legal principles

The court can exercise the discretion to exclude otherwise admissible statements against interest made by an accused where considerations of public policy (such as those enlivened by improper police conduct), lead the court to conclude that it is unacceptable to admit evidence of the statements.[69] The public policy discretion focusses not on unfairness to an accused, but on considerations of public policy which make it unacceptable to admit the statement into evidence notwithstanding that the statement was made voluntarily and that its admission would not result in any particular unfairness to the accused.[70] The rationale for the public policy discretion is 'not so much a concern with fairness to [an accused] as with the public policy of not giving the appearance of curial approval to wrongdoing on the part of those whose duty is to enforce the law'.[71] The public policy discretion involves striking a balance between the public interest in placing the court in possession of all relevant admissible evidence and ensuring that law enforcement officers do not act unlawfully or improperly.[72]

Accused's submissions

[69] R v Swaffield; Tofilau v The Queen; Kelly v The State of Western Australia [39] ‑ [46]; EYO v The State of Western Australia [50].

[70] R v Swaffield [52]; Kelly v The State of Western Australia [39] ‑ [46]; EYO v The State of Western Australia [50].

[71] Police v Dunstall [2015] HCA 26; (2015) 256 CLR 403 [26]; Kelly v The State of Western Australia [47].

[72] R v Swaffield [25]; Kelly v The State of Western Australia [39] ‑ [46]; EYO v The State of Western Australia [50].

The accused submits, essentially for the same reasons as he advances in support of his contention that the interview should be excluded on the ground of unfairness, that the interview should be excluded on grounds of public policy. The accused submits that the conduct of the detectives in continuing with the interview after the accused had informed them of the substance of his legal advice was improper and that in these circumstances for the court to allow the admission of the interview would amount to a curial approval of wrongdoing on the part of the police.

Analysis and ruling

For reasons that are apparent from my decision in relation to the objection on the ground of unfairness, I do not accept the submission that anything done by the detectives in this case was improper. It therefore necessarily follows that I do not accept that any part of the interview should be excluded on public policy grounds.
If contrary to my view there was any impropriety in the conduct of the detectives in continuing with the interview after the accused had informed them of his legal advice, or in the way that the detectives conducted the interview, the nature and extent of that impropriety is outweighed by the public interest in convicting those who commit criminal offences. The admission into evidence of the interview will not give the appearance of curial approval of any significant impropriety and will not be in conflict or at variance with the protection of societal norms.[73]
[73] Kelly v The State of Western Australia [52].

Conclusion

For the reasons I have given the accused's objection to the admissibility of the interview is dismissed.
I state to avoid any uncertainty on the issue that my ruling does not preclude the accused from objecting to portions of the interview on grounds other than involuntariness, unfairness and public policy.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick
30 OCTOBER 2019