The State of Western Australia v Simon - [2019] WADC 178

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION: BROOME
PERTH

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- SIMON [2019] WADC 178
CORAM:   LONSDALE DCJ
HEARD:   18 & 30 OCTOBER 2019
DELIVERED          :   20 DECEMBER 2019
FILE NO/S:   IND KUN 10 of 2019
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
ROWAN DALE SIMON

Catchwords:

Police record of interview - Admissibility - Voluntariness - Fairness and public policy discretion - Anunga rules - Right to remain silent - Right not to participate in electronic record of interview

Legislation:

Criminal Code (WA), s 297(1)

Result:

Application to exclude electronic record of interview upheld

Representation:

Counsel:

The State of Western Australia	:	Ms D Clarke
Accused	:	Mr B White

Solicitors:

The State of Western Australia	:	The Director of Public Prosecutions
Accused	:	Benjamin White Kimberley and Pilbara Criminal Lawyer

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

Allen v Director of Public Prosecutions (WA) [No 2] [2014] WASC 472
EYO v The State of Western Australia [2019] WASCA 129
R v Anunga (1976) 11 ALR 412
R v Ireland [1970] 126 CLR 321
The State of Western Australia v Adams [2018] WADC 5
The State of Western Australia v Gibson [2014] WASC 240; (2014) 243 A Crim R 68
The State of Western Australia v Smith [2010] WASC 279

LONSDALE DCJ:

The accused is charged with causing grievous bodily harm arising out of an incident which occurred in Kununurra on the evening of Tuesday 15 January 2019.
At 4.30 pm on 16 January 2019 the accused participated in an electronic record of interview (EROI) and made some admissions consistent with having committed the offence. A voir dire was held before me to determine its admissibility.
The State case is that on the evening of 15 January 2019 the accused was outside the Moongoong Sober Up Shelter (the shelter) in Kununurra when he approached the victim, pushed him to the ground and stomped on his head twice.
The victim was found unconscious and bleeding and taken to Kununurra District Hospital. The victim suffered multiple injuries to his head.
There were no eyewitnesses. Apart from the accused's admissions, the only evidence directly linking the accused to the crime is DNA found on the victim's body containing a profile consistent with that of the accused.
The defence objects to the admissibility of the EROI on the grounds of voluntariness. Alternatively, the defence submits that the EROI should be excluded on grounds of unfairness and/or public policy.

Events leading up to the interview

At about 7.55 pm on 15 January 2019, the accused came to the shelter and spoke to Elaine Johnson, an employee. Ms Johnson observed him to be intoxicated, angry and talking about the devil.
The accused was next seen at around 8.56 pm by Darren Smith, a bus driver for the shelter. Mr Smith thought he looked drunk. About 10 minutes after seeing the accused, Mr Smith saw the victim lying on the ground not far from the shelter. Mr Smith called an ambulance and the victim was taken to hospital.
At 1.10 am on 16 January 2019, the accused went to the front counter of the Kununurra Police Station and spoke with Constable Felim Rugel. He asked about 'the old man who was hurt'. Detective Auckland then came to the front counter. He saw the accused wearing a torn t‑shirt. The accused asked him 'what happened to the old man at the turnoff to the ranch'.
Detective Auckland arrested and cautioned the accused and advised him of his arrested suspect rights. He described the accused at this time as quite aggressive and making comments about the devil. Detective Auckland conveyed the accused to the lock up area and reiterated his rights, this time explaining them to him in more detail.
According to Detective Auckland the accused made several admissions without being questioned. The relevant admissions appear at par 26 – par 31 of Detective Auckland's statement:
26.        He said 'is that man in hospital ok? I feel bad'.
27.He said 'that man tried to hurt my …' but the accused trailed off, I think he mentioned a relative of his being hurt.
28.        He also said 'That man hit me first, I been hit in nose'.
29.        I didn't ask him anything about the comments he made.
30.In addition to those admissions, the accused also made other comments which indicated he may not have been thinking clearly.
Kerri Gunson, a mental health nurse, assessed the accused at the request of police.
Shortly after being assessed, the accused spoke to Amanda Whitehead, a solicitor from the Aboriginal Legal Service (ALS). The accused advised Ms Whitehead that he did not wish to answer police questions. Ms Whitehead recalls that she then advised police (in a telephone call and follow up email) that the accused did not wish to answer questions.

Factual issues relevant to the issues raised at the voir dire

The factual matters relevant to the issues of voluntariness, fairness and public policy raised by the defence included the following.
First, the nature and extent of Detective Auckland's explanation to the accused as to his rights and the caution.
Secondly, whether the accused understood his rights and the caution administered by Detective Auckland.
Thirdly, whether Ms Whitehead told Detective Auckland that the accused did not wish to participate in a record of interview and may not have understood the advice she had given him concerning his rights.
Fourthly, whether the accused was advised that he did not have to participate in a recorded interview.
Fifthly, whether the accused understood the caution administered by Detective Auckland during the EROI itself.

Evidence of Kerry Gunson

Ms Gunson is a clinical nurse specialist in mental health at the Mental Health and Drug Service (the MHDS). Ms Gunson had known the accused since 2008 as a client of that service. She knew him to suffer from paranoid schizophrenia and substance use disorder. She would see the accused in the community on a fortnightly basis if he was acutely unwell and about once a month if he was mentally stable. She was aware that the accused had disengaged with the service and had not been receiving treatment recently.
Ms Gunson noted the accused's demeanour to be calm and co‑operative. He was not agitated. His thought processes did not appear disrupted. He reported occasional auditory hallucinations. She was under the impression that, following her assessment of the accused, he would be referred to a mental health unit.
Ms Gunson denied making an assessment as to whether the accused was fit to be in custody. Her role was to assess his mental health needs. She thought those needs would be met whilst he was in custody.
Ms Gunson completed a risk assessment and management plan which she emailed to Sergeant Walkerden at Kununurra Detectives.
In her report, Ms Gunson observed that the accused was oriented in place and person but not in date, time or year; he was neither restless nor agitated but had limited eye contact, quiet speech and gave monosyllabic responses with limited reactive effect. There was no evidence of thought disorder or delusional or paranoid thoughts. He did not elaborate on his reported auditory hallucinations.
Ms Gunson thought the accused was aware he was being held in custody until court the next day. He had requested a lawyer and had told her that he would like to go home.
Ms Gunson was of the opinion that the accused had no insight into his existing mental illness and his judgement was impaired. For example, the accused told her, 'I don't need the needle. Just water will make me fine'.
Ms Gunson offered the accused anti-psychotic medication which he declined. He did agree however to Olanzapine (a drug used to treat agitation and distress from auditory hallucinations). Ms Gunson did not consider that the auditory hallucinations would have impacted on his mental capacity.
Under cross-examination Ms Gunson denied advising police that the accused was fit to participate in a police interview.
Ms Gunson agreed that during the assessment the accused generally gave 'yes' or 'no' answers or was non‑responsive. She agreed it was possible that the accused could have been experiencing auditory hallucinations during the assessment. She thought the accused was comparatively well on the day she assessed him but was potentially mildly psychotic.

Evidence of Amanda Caroline Whitehead

Ms Whitehead is a solicitor practising primarily in criminal law with the ALS.
At about 1.00 pm on 16 January 2019 Ms Whitehead received a telephone call from Kununurra Police. She spoke to someone (who she believes to have been Detective Auckland) who advised her that the accused was a suspect in relation to the offence of grievous bodily harm.
Ms Whitehead spoke to the accused to give him pre-interview legal advice. She did not consider that an interpreter was required as the accused had advised her he spoke English.
After providing the accused with advice, Ms Whitehead thought the accused did not seem to understand the advice and made a note to that effect.
One of the reasons she had formed this view was because the accused had told her he had never been to court but the ALS (computer) system revealed he had.
Also, Ms Whitehead said the accused had answered 'yes' when she believed he meant 'no'. Ms Whitehead had advised him of his right to silence. The accused had advised her that he did not wish to answer police questions.
At 1.27 pm on 16 January 2019 Ms Whitehead sent an email to Detective Auckland which reads:
We represent Mr Rowan Simon who has been arrested on suspicion of GBH.
I refer to my telephone conversation with Mr Simon this afternoon providing pre-interview advice.
We understand that you are investigating the above matter and that you are seeking to interview our client about the allegations.
We have provided Mr Simon with legal advice including advice regarding his right to silence. Mr Simon has instructed me that he does not wish to answer questions in relation to this matter.
Ms Whitehead said that, in her experience, it was common for police to conduct an interview even when a lawyer advised them that their client does not wish to answer questions.
Ms Whitehead did not attend the police station and was not present during the record of interview.

Evidence of Detective Auckland

Detective Auckland said the first time he explained to the accused what his rights were was in the foyer of the Kununurra Police Station. He did not however explain them in great detail at that time.
Later, whilst in the lockup, Detective Auckland spent more time with the accused explaining those rights. Detective Auckland thought the accused's responses at that time were 'not great' and that he was still quite erratic. The accused was not able to articulate the caution (in his own words) and frequently interrupted to talk about the events of that night. Detective Auckland did not think (due to the accused's mental state) he understood his rights entirely.
Detective Auckland took him from the charge room to a padded cell. He directed the accused to remove his clothes. Detective Auckland agreed in cross-examination that he did not give the accused a choice about taking his clothes off. He said it was not unusual for the officer conducting the arrest and strip search to also conduct the record of interview.
Detective Auckland next spoke to the accused in the lockup area just prior to 1.00 pm (some hours after Ms Gunson's assessment and his discharge from hospital). He then reiterated the accused's arrested suspect rights.
Detective Auckland noticed that the accused's demeanour was different to the night before: he seemed more coherent and appeared to understand the caution and his rights. This time the accused 'was able to articulate the caution back'. He determined that the accused was fit to be interviewed. He arranged for the accused to phone the ALS for legal advice.
Just prior to the commencement of the EROI at 4.30 pm, Detective Auckland again advised the accused as to his rights.
Detective Auckland could not recall having read Ms Whitehead's email (in which she advised that the accused did not wish to answer questions).
Detective Auckland agreed in cross-examination that (earlier on) the accused had said something about 'black fellas killing themselves in the street' and 'something about protecting his family'. He also recalled the accused saying 'motherfuckers are trying to bash me' and the accused providing a hissing response to some of his questions.
Detective Auckland agreed it would be inappropriate for police to interview a suspect who appeared unable to understand their rights, was highly intoxicated, or was affected by mental illness. He agreed that fairness required that the suspect not only be advised of their rights but have an understanding of their rights.
Detective Auckland was not made aware that the accused was a client of the MHDS. He was not aware that the accused had not been taking his medication since May 2018, nor that he had refused to take medication that day. Also, he was unaware that Ms Gunson had assessed him as potentially mildly psychotic.
Detective Auckland could not remember what he told the accused when he spoke to him just prior to 1.00 pm but it would have been very similar to what he said in the EROI. He estimated he would have taken '10 minutes or so' to explain to the accused what his rights were. This included his Anunga rights in accordance with R v Anunga (1976) 11 ALR 412.
Detective Auckland knew Ms Whitehead to be a lawyer with the ALS who regularly represented Aboriginal people from the East Kimberley. He could not recall speaking to Ms Whitehead or being advised by her that the accused did not want to answer questions. He could not remember receiving an email to that effect either.
In response to a question about whether he was likely to remember what Ms Whitehead told him, he responded:[1]
Not really no. Because it's a common thing. Either – put it this way. Every single time I've contacted ALS I'm told the client unequivocally has expressed that they don't want to do an interview, and quite often the client has done nothing but grunt three or four times on the phone. So we don't really put much weight into it. Even to the point, when we do get the email afterwards, it's just a template email. Sometimes they forget to even change the name. So it's just a standardised thing.
[1] ts 56.
Detective Auckland said it was rare not to get an email from the ALS (after they have provided suspects with pre-interview advice) advising them that an accused does not wish to answer questions. He agreed that, if Ms Whitehead had told him that the accused did not wish to answer questions or participate in an interview, he would not have given what she said much weight.
Although Detective Auckland could not recall having read Ms Whitehead's email, he agreed he had sent at least two emails from his police email address after Ms Whitehead's email was sent to him at 1.27 pm. He agreed it was highly likely he had seen Ms Whitehead's email prior to commencing the interview.
Detective Auckland conceded (somewhat reluctantly in my view) that the email from Ms Whitehead contained more than what he had described as the 'standard template' of advice from the ALS that he had seen on previous occasions.

Legal principles

In EYO v The State of Western Australia [2019] WASCA 129 [50] ‑ [55] the Court of Appeal sets out a helpful summary of the law concerning the admissibility of police records of interview.
The following principles extracted from EYO v The State of Western Australia (and the authorities referred to therein) are relevant here:
1.It is presumed that a confessional statement is voluntary in the absence of evidence to the contrary.
2.The State bears the onus of establishing, on the balance of probabilities, that a confessional statement is voluntary.
3.If a confessional statement is voluntary, it may nevertheless be excluded on discretionary grounds.
4.If an accused asserts that a voluntary confession was improperly or unlawfully obtained or should, on some other recognised basis, be excluded, the accused bears the onus of proving the facts which would justify an exercise of the residual discretion in his favour.
5.A confession may be excluded on the basis that it is unfair to the accused to admit the statement.
6.A confession may be excluded on grounds of public policy which make it unacceptable to admit the statement into evidence notwithstanding that the statement was made voluntarily and there was no particular unfairness to the accused.
7.A confession may be excluded on the basis that the probative value of the statement is outweighed by its prejudicial effect.
8.The unfairness and public policy discretions often overlap.
9.In considering the question of unfairness, a police officer is under a duty to ascertain facts which bear upon the commission of a crime and is not bound to accept the first answer given by an accused.
10.In considering the question of public policy, there is a need to balance the public interest in bringing offenders to justice and the protection of the individual from unlawful and unfair treatment.
11.The reliability of a confession is a relevant but not determinative consideration on the question of unfairness.
12.Where the confession is given by an indigenous person, the Anunga rules may apply.
13.Breaches of the Anunga rules may be relevant to an assessment of the voluntariness of confessional evidence given by an Aboriginal person and the exercise of the discretion to exclude.

Voluntariness

It is a necessary pre-condition for an admission to have been made voluntarily that an accused is cautioned as to his right to remain silent and that he understands that caution.
In EYO vThe State of Western Australia [69], Mazza JA and Pritchard JA in joint reasons summarised the requirements of the caution in this way:
The caution that a police officer is obliged to give to an arrested suspect has two limbs. The first limb is that the suspect has the right not to answer any questions put to him or her by police. The second limb is that, if the suspect answers any question, the answer may be given in evidence. The importance of the second limb of the caution is to ensure that the suspect understands the effect or consequence of answering any question put by police. Comprehension of the second limb of the caution is as important as comprehension of the first limb.
Detective Auckland did attempt to explain both limbs of the caution in the EROI as the following extract reveals:
S/Con Auckland:        Okay. So that's what we're talking about here, alright. Mmhmm. As an arrested suspect you've got some rights available to you. So [sic] do you remember me telling you your rights when you were first arrested? Yep. Do you remember me telling you your rights again a couple of times in the charge room of the lockup, yep?
Simon:Yeah
S/Con Auckland:        Okay, mate. Good stuff. Look, I'll go over those rights again now on video. Alright. So you've got the right to contact a lawyer and get the legal advice before doing an interview.
Simon:[indistinct]
S/Con Auckland:        So have you spoken to a lawyer?
Simon:Yeah, already.
S/Con Auckland:        Yep. You've spoken to a lawyer already. Um, do you remember what her name was?
Simon:N-, nup.
S/Con Auckland:        Nup. Okay. So her name was Amanda.
Simon:Y-, yeah.
S/Con Auckland:        Amanda Whitehead. Now, she's from Aboriginal Legal Services in Kununurra. Now, do you agree that you spoke to Amanda for quite a while on the phone?
Simon:Yeah.
S/Con Auckland:        A little bit earlier on. Yep. Do you remember what Amanda told you?
Simon:Un, just - - -
S/Con Auckland:        That's, that's alright. You, you don't have to ‑ ‑ -
Simon:Yeah.
S/Con Auckland:        You don't have to tell me what she told you.
Simon:Yeah.
S/Con Auckland:        But do you remember what she told you?
Simon:Yeah.
S/Con Auckland:        Yep. Okay. Are you happy with the advice that you got from Amanda?
Simon:Y-, yeah.
S/Con Auckland:        Yep. Okay. Did you want to call any other lawyers? Or are you happy with that?
Simon:N-, nup.
S/Con Auckland:        Okay. No worries, mate. Um, now, you've also got the right to speak with a family member or friend and let 'em know where you are. Have you called any family or friends?
Simon:N-, nup.
S/Con Auckland:        Nup. Would you like to before we go any further?
Simon:Y-, yeah.
S/Con Auckland:        Yep. Who would you like to call?
Simon:Ah, mum and dad.
S/Con Auckland:        Mum and dad. Okay. What's mum and dad's name?
Simon:Ah, no, that's okay. I don't want to them bothered and that.
S/Con Auckland:        You don't want to?
Simon:Y-, yeah.
S/Con Auckland:        Okay, mate. Is there anyone else you want to call?
Simon:George Botany. But he's, he's, like, nah, whatever [indistinct]
S/Con Auckland:        Mate, that right stays open to you throughout the whole time that you're with police. So if, if you decide in five minutes time that you do want to call your mum and dad or you want to call someone else, you're more than welcome to, alright. You, you just interrupt us and say, can I please call mum or whatever? And I'll stop the, the, ah, stop the, the interview. And I'll go get out that phone call, alright.
Simon:Thank you.
S/Con Auckland:        So did you want to call anyone at the moment? Or are you okay?
Simon:No, it's okay.
S/Con Auckland:        It's okay? Alright. Just let me know if you change your mind. Now, this is one of the most important rights that I'm about to tell you now. It's what we call the caution, okay. Now I've told you the caution a couple of times already today. But I want to go over it again now. Because I want to make sure that you understand it. The caution means that you don't have to talk to us unless you want to. Right. Anything you do say is being recorded. And that can be used as evidence in court. Now, you can answer some of our questions and not others. It's completely up to you. Do you understand that?
Simon:Yeah, I understand.
S/Con Auckland:        Yep, If I ask you a question do you have to answer it?
Simon:N-, nup.
S/Con Auckland:        Exactly right, mate. You don't have to. If Jess asks you a question, do you have to answer it?
Simon:N-, nup.
S/Con Auckland:        Exactly right, you don't have to. Whose choice is it whether you answer our questions? Who gets to choose whether you talk to us today, mate? Alright. Look, I'll come back to that one. Are, are you feeling alright at the moment?
Simon:Yeah, yeah. I'm still alright.
S/Con Auckland:        Yep. Okay. Anything you say today is going to be recorded. Do you know how we're going to record that?
Simon:N-, nup.
S/Con Auckland:        Sorry, mate, can I just get you to speak up a little bit?
Simon:That there and this here.
S/Con Auckland:        Yeah. Exactly right, mate. So you're obviously pointing to the video camera and also to the microphones. And as well as that, as you can see, Jess and I are writing stuff down. That's also recordings that can be used in court. Now, do you understand how the court process works?
Simon:That's all that, that's what you got, um, that's that.
S/Con Auckland:        Okay, so w-, what happens in court; sometimes when people have done the wrong thing - - -
Simon:Mmm.
S/Con Auckland:        They can be charged by police. And what that means is that they have to go to court sometime in the future. And when they go to court there could be a judge or a magistrate or a jury. And they listen to all the evidence. And they listen to all the recordings. And then those people make a decision whether someone is guilty or not guilty. So they basically decide whether someone's done the wrong thing or if they haven't done the wrong thing. Do you understand that? Now what we're making now is all going to be on a DVD. And that DVD can be played in court. And if you were to be charged with something, everyone in court who makes a decision as to whether you've done the wrong thing could hear that we're doing right now and see it. Do you understand that? Okay. Whose decision is it whether you answer our questions.
Simon:Me.
S/Con Auckland:        Yep, you. Exactly right, mate. You and only you. If you don't want to answer our questions, that's perfectly fine. Jess doesn't care. I don't care. It's completely up to you, mate, alright. If you, if you want to talk to us then we're more than happy to have a chat with ya. If you don't want to talk to us, then that's perfectly fine. We're not going to get upset about it. Alright?
Simon:Mmm.
S/Con Auckland:        Now, even if you know the answer to a question, you still don't have to answer. So if I asked you what, what colour is those set of overalls that you're wearing, you know the answer is blue. But you still don't have to tell me if you don't want to. Do you understand that?
Simon:Nup.
S/Con Auckland:        Do you want me to explain that one differently? Hey, Rowan - - -
Simon:Mmm.
S/Con Auckland:        If I ask you ten questions, how many do you have to answer?
Simon:One.
S/Con Auckland:        Nup, none.
Simon:None.
S/Con Auckland:        Nothing. You don't have to answer any questions at all.
Simon:Yeah.
S/Con Auckland:        Nothing. You don't have to say anything if you don't want to. If you want to you can talk to us. But if you don't want to you don't have to. Do you understand that?
Simon:Yeah.
S/Con Auckland:        If Jess asks you fifteen questions, how many do you have to answer?
Simon:None.
S/Con Auckland:        None. Exactly right, mate. Exactly right. You don't have to answer anything unless you want to. And you're the only one who gets to decide, not us. Okay. And it's important you remember that for the whole time we do the, the interview today and after the interview. The caution applies the whole time. You do not have to talk to us, alright. So every time I ask you a question or every time Jess asks you a question, you just have a think to yourself. You think about what the lawyer told you, what their advice was. And then you make up your own mind if you want to answer or not. Do you understand that? Okay. Thanks, mate. Now, we've also got some other things, other rights that we afford to you while you're with us. Things like an interpreter if you need one.
Simon:Mmm.
S/Con Auckland:        Now, as I explained before, an interpreter is someone who can speak another language if, if, if you don't speak English. And if you don't understand what we're saying. Do you feel like you need an interpreter?
Simon:No, no, I'm good.
S/Con Auckland:        Okay. Have you understood everything that's happened so far?
Simon:Yes.
S/Con Auckland:        Okay.
Simon:Yeah.
S/Con Auckland:        Thanks, mate. You've also got the right to medical treatment if you need it. Now, we've spoken about that already. If you start feeling sick or you can't think clear or there's any problems, just let us know. And we'll get you down to the hospital straight away, okay. Are you feeling alright at the moment?
Simon:Yeah. I'm still feeling alright.
S/Con Auckland:        Yep.
Simon:Yeah.
S/Con Auckland:        Okay, mate. That's good. Um, and you've got the right to privacy from the media, mate. So we're not going to get cameras in here and stick you in the news or in the paper. We're not going to do any of that. So don't worry about that. Now, you've been in our custody for quite a while now. Since 1:00 A-M this morning or just after. Have you had some sleep in that time?
Simon:Yeah.
S/Con Auckland:        Yep.
Simon:I've had some sleep, yeah.
S/Con Auckland:        Yep. Are you feeling tired at the moment?
Simon:Mmm, just, like, just, yeah.
S/Con Auckland:        Are you, are you too tired to do the interview?
Simon:Yeah, just, I want to get, finish this off.
S/Con Auckland:        You, you want to what, sorry?
Simon:Just finish off this bit.
S/Con Auckland:        Finish off this bit?
Simon:Yeah.
S/Con Auckland:        Okay. But before we go any further, mate, I want to make sure that you're not too tired.
Simon:Yeah.
S/Con Auckland:        To, to, to go on. Are, are you too tired to keep talking to us? Or are you happy to keep talking to us?
Simon:Mmm, getting a little bit tired again.
S/Con Auckland:        You're getting a bit tired again?
Simon:Yep.
S/Con Auckland:        Okay. Did you want to have a sleep before we go any further?
Simon:Ah, that's okay.
S/Con Auckland:        Alright, mate. If you start feeling like you are too tired and you want to sleep before we speak anymore, just let me know. And we'll stop it straightaway and let you go get some sleep, okay. I'll try not to take too long. I'll try and just ask what we need to ask. But I want to make sure that you're awake enough to answer our questions, okay. Now, have you had some food today?
Simon:N-, nup.
S/Con Auckland:        No. Well, were you given a pie for lunch?
Simon:N-, nup.
S/Con Auckland:        Nup. Okay. I think what one of the, one of the guys put a pie in your, in your room today.  Um, I don't know whether you ate it. But I know they certainly put it in there. And, um, we've heated one up just before the interview. And you've told me that you wanted to wait until after the interview. Did, did you want to wait till after the interview? Or do you want us to get it now and bring it in?
Simon:Yeah, I don't know.
S/Con Auckland:        Ah, are you hungry at the moment? Or nah? Rowan, are, are you able to let me know whether you're hungry at the moment?
Simon:Yeah. I'm hungry, yeah.
S/Con Auckland:        Yeah. Did you want us to get the pie that's outside and bring it in? Or do you want to wait until after the interview?
Simon:Yeah.
S/Con Auckland:        Bring it in?
Simon:Ah, leave it for after the interview.
S/Con Auckland:        After the interview?
Simon:Mmm.
S/Con Auckland:        Okay, mate. No worries. We'll do that. Did you want anything to drink at the moment?
Simon:N-, nup.
S/Con Auckland:        Nup. Alright, no worries. I mean, do you need to go to the toilet at the moment?
Simon:Nup.
S/Con Auckland:        Okay. All good. Now the other, the only other thing which we've discussed a couple of times and I'll go over again now is your right to an interview friend. So an interview friend is someone who can come and sit in this chair here and be your support person while we do the interview, alright. They can't answer questions for you. But they can be there to make you feel happy, alright. Now, did you want anyone to come and sit down on the interview?
Simon:I don't know, no.
S/Con Auckland:        No. Alright, mate. If you change your mind, just let me know. And we can stop the interview and go and get an interview friend for you. Do you understand that? Do you understand that, Rowan?
Simon:Mmm.
S/Con Auckland:        Have you understood everything so far, mate? Alright, mate. Look, what we're going to do now is start talking about why you're here. And we're going to start asking you questions about what happened, alright. Did you have anything you want to ask me before we do that?
Simon:N-, nup.
S/Con Auckland:        Alright. Is there anything you wanted me to cover off on before we, go through?
Con Towie:Yep.

The transcript of the EROI alone does not permit the reader to gain an adequate sense of whether the accused had an understanding of what was being explained to him.
My viewing of the EROI revealed that there were many long pauses between the questions and answers and occasions when the accused was non-responsive altogether. I also observed that the accused's answers were short, with very little elaboration. At no time did Detective Auckland ask the accused to explain the caution in his own words.

Relevance of the Anunga rules

Counsel for the accused submitted that the accused presents as an unsophisticated, illiterate Aboriginal person with a mental illness from the remote community of Kununurra and therefore someone to whom the Anunga rules applies.
Counsel for the accused submitted that, in explaining the caution to the accused, Detective Auckland breached Anunga rules 3 and 8 which read:
(3)Great care should be taken in administering the caution when it is appropriate to do so. It is simply not adequate to administer it in the usual terms and say, 'Do you understand that?' or 'Do you understand you do not have to answer the questions?' Interrogating police officers, having explained the caution in simple terms, should ask the Aboriginal to tell them what is meant by the caution, phrase by phrase, and should not proceed with the interrogation until it is clear the Aboriginal has apparent understanding of his right to remain silent. Most experienced police officers in the Territory already do this. The problem of the caution is a difficult one but the presence of a 'prisoner's friend' or interpreter and adequate and simple questioning about the caution should go a long way towards solving it.
(8)Should an Aboriginal seek legal assistance reasonable steps should be taken to obtain such assistance. If an Aboriginal states he does not wish to answer further questions or any questions the interrogation should not continue.
I find that Detective Auckland was doing his best to carefully explain the accused's rights. However, despite Detective Auckland's best efforts in that regard, it is not clear that the accused did understand. This is illustrated early on in the EROI when Detective Auckland asks the accused whether he has to answer a question to which the accused responds 'nup'.
Shortly after giving that answer, Detective Auckland asks the accused whose decision it is whether he answers police questions. The accused does not respond and stares straight ahead.
Detective Auckland again asks the accused who gets to choose whether he talks to police. Again, the accused does not respond for some time whilst staring straight ahead. After receiving no response to those two questions Detective Auckland asks the accused if he is feeling alright. The accused responds that he is 'still alright' but does not respond to the questions about the right to silence.
Then Detective Auckland once again asks the accused whose decision it is to answer questions. This time the accused does answer (correctly) 'me'. Then Detective Auckland tells the accused he does not have to answer even if he knows the answer. When he asks if the accused understands whether he has to answer if he does not want to, the accused replies 'nup'. (It is not clear whether this answer meant he did or did not understand the right to remain silent.)
Detective Auckland then asks him how many questions he has to answer if asked 10 questions, the accused replies 'one' (an answer not only wrong but inconsistent with his previous answers).
Detective Auckland next asks the accused how many questions he has to answer if asked 15 questions by 'Jess' (the other police officer present) and the accused answers 'none'. Although this answer is correct, it is again inconsistent with the answer given moments before.
The accused's inconsistent answers and the long pauses between answers lead me to doubt whether he properly understood what Detective Auckland was telling him. There is a very real chance that the 'correct' answers were a fluke or a consequence of the leading nature of some of Detective Auckland's questions.
Also, Detective Auckland did not, in accordance with Anunga rule 3, invite the accused to explain his understanding of the caution in his own words. In all of the circumstances therefore, I have no confidence that the accused understood the caution.
I do not accept Detective Auckland's evidence that earlier in the day, and prior to the interview being conducted, the accused had been able to articulate the caution. My observations of the accused during the EROI, (together with the observations of others as to the accused's presentation earlier in the day) suggest this would have been highly unlikely: throughout the interview, the accused gave mostly one word answers, was often non-responsive and did not explain or elaborate on the answers he did give.
The accused's apparent lack of understanding is also illustrated by Detective Auckland's question concerning the court process - to which the accused responded by saying: 'that's all that, that's what you got, um, that's that'.[2] Directly after giving that answer, Detective Auckland again asked the accused whether he understood the caution but the accused made no response.[3]
[2] EROI transcript pg 9.
[3] EROI transcript pg 11.
Detective Auckland did attempt to explain the caution in relatively simple terms and in a way which the accused would understand. There was no wrongdoing on Detective Auckland's part.
There is no suggestion that the accused's will was overborne or that police put unfair pressure on the accused to respond. However, Detective Auckland did not ask the accused to tell him, phrase by phrase, what was meant by the caution. In those circumstances I can have no confidence that the accused understood it. The failure of an accused to understand the caution will mean that the answers cannot have been given voluntarily. I therefore rule that the EROI was not given voluntarily and should be excluded on that basis.
There is another basis upon which the EROI could be said to be involuntary. An accused person is not only entitled to remain silent but is also entitled to refuse to submit to a recorded interview: Allen v Director of Public Prosecutions(WA) [No 2] [2014] WASC 472 [53] (Jenkins J); The State of Western Australia v Adams [2018] WADC 5 [82].
Detective Auckland did not advise the accused that he could decline to participate in a recorded interview. Because the accused was not told he did not have to participate in a recorded interview the interview was also on that basis not voluntary.

The fairness and public policy discretions

In the event I am wrong about the issue of voluntariness, I have considered whether the admissions should be excluded on fairness and/or public policy grounds.
The issues that arise in this context concern the accused's mental state, his understanding of the implications of speaking to police, the conduct of police whilst he was in custody, and the reliability of his admissions.
It is common ground that the accused was suffering from a mental illness at the time of his arrest and detention - although the extent to which his illness affected his capacity to understand the implications of speaking to police is contentious.
Ms Gunson reported he was suffering from occasional auditory hallucinations but considered he was comparatively well.
I would not conclude on the basis of evidence of his mental state alone that it was unfair or contrary to public policy for him to be interviewed. The expert evidence of Ms Gunson was not that he was so unwell as to be incapable of giving an account of events or answering police questions.
However, the accused's mental health is not the only relevant consideration. There was other evidence that the accused may not have understood his right to speak or remain silent and that police knew about that.
I find that Detective Auckland did have an opportunity to read Ms Whitehead's email to him and most likely did so: this is because he sent two emails after Ms Whitehead's email was sent and before the EROI commenced.
The tenor of Detective Auckland's evidence was that he regarded emails from the ALS (and Legal Aid) advising police that their clients do not wish to participate in a record of interview as 'template' emails. Detective Auckland's evidence implied that he routinely chose to ignore the advice contained in such emails because he does not always accept that they reflect a suspect's decision to speak or remain silent. I find that Detective Auckland's practice in this respect likely induced him to pay insufficient attention to the contents of Ms Whitehead's email. The contents of that email should have increased concern about the accused's capacity to understand the caution. The decision to proceed with the interview in the face of that (relevant) information affected the fairness of the EROI in two ways.
The information may have indicated to police that the accused was having difficulty understanding his rights - and perhaps his understanding more generally. Also, the information might have suggested that the accused was unable to give a reliable account of events.
Fairness and public policy considerations often overlap and meld together. As Hall J said in TheState of Western Australia v Gibson [2014] WASC 240; (2014) 243 A Crim R 68, [174]:
Factors that may be relevant to whether the interview was fair include whether the accused was able to understand and communicate in English, whether he was placed under pressure, whether he had adequate breaks and sustenance and was not pressed to continue whilst fatigued. Another factor may be whether police have persisted with questioning after a suspect has indicated a wish not to answer further questions. To so persist may, depending on the circumstances, be improper: R v Ireland (1970) 126 CLR 333. However, police are not bound to accept the initial position of a suspect: Clarke (1997) 97 A Crim R 414, 419 - 420. Interviewing officers are entitled to ask further questions to clarify the accused's position and to determine whether a refusal applies to all questions or only to a particular topic: The State of Western Australia v Smith [2010] WASC 279 [11]. The position may well be different where a lawyer acting for a client whose first language is not English tells police in clear terms that her client does not wish to answer any questions.
The fact that police persisted in interviewing the accused after being told unequivocally that he did not want to participate in an interview (albeit through his lawyer) weighs in favour of the discretion to exclude the admissions on grounds of fairness and/or public policy: R v Ireland [1970] 126 CLR 321 [23] (Barwick CJ).
However, as Hall J pointed out in TheState of Western Australia v Gibson, police are not bound to accept the initial position of a suspect. They are entitled to ask further questions to clarify the accused's position and to determine whether a refusal to answer questions applies to all questions or only to a particular topic. (See also The State of Western Australia v Smith [2010] WASC 279 [11] (Hall J)).
The fact that Detective Auckland was told that the accused did not wish to answer questions did not mean he was obliged not to attempt to question the accused. An accused person has a right to speak or remain silent. Such rights can be exercised at any time - and it does not follow that, once an accused adopts a position, his decision in that regard must be final.
I find that in the circumstances of this case, the decision by Detective Auckland to proceed with an EROI was both unfair and contrary to public policy for the reasons that follow.
The accused is obviously unsophisticated and lacking in verbal skills. He is an Aboriginal person from a relatively remote community. He was known to suffer mental illness. Although he may not have been floridly mentally ill, he was nevertheless suffering from some hallucinations and, according to Ms Gunson, lacked insight into his mental illness.
The accused's presentation in the interview and the answers he gave suggest a level of confusion about his rights and the implications of participating in a record of interview.
There was no evidence to corroborate the veracity of the accused's admissions. The accused did not name the victim and his admissions contained a lack of detail capable of being verified.
Although Ms Gunson was of the opinion that the accused was aware of his surroundings, the accused's answers were not expansive and lacked enough detail to know what the alleged admissions were about. The admissions were vague and may not be a reliable indicator of his involvement in the alleged offence. There is no way of testing whether his admissions were based on real or imagined events.
In these circumstances the risk that the accused was misunderstood was significant and the probative value of the admissions is questionable.
In my view the interview is inadmissible on grounds of unfairness.

Public policy

In my view the accused may have felt under pressure to participate in an EROI because of the combination of the length of time he had been in custody, his expressed desire to go home and the fact that his interviewer was also the person who had earlier subjected him to a strip search. These factors weigh in favour of exclusion on public policy grounds.
In weighing all of the factors relevant to the public policy discretion, I am mindful that there is a public interest in permitting the police to conduct a thorough investigation and to have offenders brought to justice, particularly when a serious offence has been committed. This may require the police to conduct a robust interview with a suspect. It may require that police do not simply give up at the first suggestion that an accused is not willing to answer questions.
However, in my view there is a risk of downplaying the danger that an unsophisticated, mentally ill Aboriginal person from a relatively remote community may be exposed to in the interview environment.
It is true that there are factors in cases such as TheState of Western Australia v Gibson which are not present in this case. Unlike in that case, the accused here does speak English and does not speak other Aboriginal languages; nor was he subjected to unreasonable pressure to answer questions. (This aside, my observation was that the accused spoke English at a fairly basic level consistent with many Aboriginal people from the East Kimberley - even those that speak English as a first language.)
Consistent with what Forster J observed in R v Anunga, the police and the courts must be vigilant to ensure that the disadvantages suffered by Aboriginal people in the criminal justice system are reduced to acceptable levels. That means that there will be situations where considerations of high public policy favour exclusion of admissions. In my view, this is one such case.
I find that the decision to proceed with the interview was contrary to public policy in ensuring the preservation of the rights of vulnerable people suspected of a serious crime. I have come to this conclusion because of the combination of the accused's mental illness, lack of sophistication, poor presentation in the interview, the police decision to ignore the advice of the accused's lawyer and the failure of Detective Auckland to observe the Anunga rules. The interview is therefore also inadmissible on public policy grounds.

Orders

The application to exclude the record of interview is allowed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
IG
Associate to Judge Lonsdale
19 DECEMBER 2019