The State of Western Australia v Smart - [2024] WASC 517

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- SMART [2024] WASC 517
CORAM:   FIANNACA J
HEARD:   10 JULY 2024
DELIVERED          :   5 AUGUST 2024
PUBLISHED           :   24 APRIL 2025
FILE NO/S:   INS 45 of 2023
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
SAMUEL DUDLEY SMART
Accused

Catchwords:

Criminal application - Application to exclude police electronic records of interview - Accused with intellectual disability - Voluntariness - Section 138(2)(d) of the Criminal Investigation Act 2006 (WA) - Unfairness discretion - Turns on own facts

Legislation:

Criminal Code (WA)
Criminal Investigation Act 2006 (WA)
Criminal Procedure Act 2004 (WA)

Result:

Electronic records of interview admissible

Representation:

Counsel:

Prosecution	:	Ms T Tan
Accused	:	Mr C Porter & Ms K Turtley-Chappel

Solicitors:

Prosecution	:	Director of Public Prosecutions (WA)
Accused	:	James Jackson Criminal Defence

Cases referred to in decision:

Brott v The State of Western Australia [2016] WASC 300
Butler (No 1) (1991) 57 A Crim R 451
Collins v The Queen [1980] FCA 82; (1980) 31 ALR 257
Duke v The Queen [1989] HCA 1; (1989) 180 CLR 508
Ibrahim v The King [1914] AC 599
Mackenzie v The Queen [2004] WASCA 146; (2004) 150 A Crim R 451
Njana (1998) 99 A Crim R 273
Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Anunga (1976) 11 ALR 412
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
Siddon v The State of Western Australia [2008] WASC 100
The State of Western Australia v Cox [2008] WASC 287
The State of Western Australia v Gandy [No 2] [2015] WASC 386
The State of Western Australia v Gibson [2014] WASC 240
The State of Western Australia v Smith [2010] WASC 279
The State of Western Australia v Williams [2022] WASCA 105
Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664
Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396
Van der Meer v The Queen [1988] HCA 56; (1988) 35 A Crim R 232
Webb (1994) 74 A Crim R 436
Wendo v The Queen [1963] HCA 19; (1963) 109 CLR 559
Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1

FIANNACA J:

Introduction

This is my decision on an application by the accused, Samuel Dudley Smart, for a ruling that certain evidence on which the State intends to rely in his trial on Supreme Court indictment 45 of 2023 (the indictment), which is listed to commence in this court on 12 August 2024, is inadmissible. The decision will be suppressed until the proceedings on the indictment have concluded.
The accused has been charged that, on 14 January 2023, at Yokine, he murdered Peter Protoulis (the deceased), contrary to s 279 of the Criminal Code (WA). The deceased was killed at his home, a unit in Alexander Drive in Yokine (the Unit), where he was living with the accused and one of the accused's sisters. He was stabbed to the neck and died from the blood loss resulting from the single penetrating wound.
I will outline below the circumstances that led to the accused being suspected of killing the deceased. He was arrested and charged with the offence of murder on 15 January 2023, about 24 hours after the incident.
In the course of the investigation of the alleged offence, the accused was interviewed by police on 16 January 2023 (the first interview) and 17 January 2023 (the second interview). An electronic audio-visual recording was made of each interview. Each will be referred to henceforth as a 'video record of interview'. During the course of each interview, the accused denied that he had any involvement in the death of the deceased. However, he gave an account regarding his movements on the day of the offence, and the days before and after the offence, being Friday, 13 January 2023 and Sunday, 15 January 2023. The State contends that the accused's accounts contain admissions against interest. While there are some admissions about surrounding circumstances that are relevant to the State's case against the accused, the State's primary contention is that the accused lied about his movements and whereabouts at critical times, and that such lies will be relied upon by the State as evidence of guilt, in that it will be open to the jury to find that the lies evince a realisation by the accused that the truth would implicate him in the commission of the offence. The State intends to rely on the evidence as part of a circumstantial case, as there is no eyewitness to the stabbing of the deceased.
On 14 March 2024, the accused made an application pursuant to s 98 of the Criminal Procedure Act 2004 (WA) for a pre-trial ruling that both video records of interview 'be deemed inadmissible at [the accused's] trial'. It is, in essence, an objection to the use of the evidence at trial. As argued, the application was for a ruling that:
(a)the interviews are not admissible because the court cannot be satisfied on the balance of probabilities that any admissions made by the accused were voluntarily made;
(b)in the alternative, the interviews be excluded on the basis that they were conducted in breach of the requirements of s 138(3)(3) of the Criminal Investigation Act 2006 (WA) in respect of the accused's rights under s 138(2)(d) of that Act, and the contents are therefore inadmissible pursuant to s 154 of that Act; and
(c)further in the alternative, the interviews be excluded in the exercise of the court's discretion on the basis that the admission of the evidence would be unfair to the accused; in other words, it would result in an unfair trial.
Section 138(2)(d) of the Criminal Investigation Act provides that an arrested suspect is entitled not to be interviewed until the services of 'an interpreter or other qualified person' are available 'if he or she is for any reason unable to understand or communicate in spoken English sufficiently'. Section 138(3)(b) provides that an officer in charge of an investigation must, as soon as practicable after the arrest of the arrested suspect, afford the suspect his rights under subsection (2). The accused's submission in respect of this basis of the objection is that, because of his intellectual disability, he was not able to understand or communicate in spoken English sufficiently (notwithstanding the fact that English is his only language), and that, for the purpose of each interview, he was entitled to have the services of a person who is qualified to assist someone with his disability to sufficiently understand and communicate in English. The police did not afford him such services.
In written submissions prior to the hearing, the accused's counsel had also relied on a submission that the police had breached s 138(3) in respect of the accused's right under s 138(2)(c) of the Criminal Investigation Act, by failing to inform the accused of, and afford him, the right to a reasonable opportunity to communicate or to attempt to communicate with a legal practitioner prior to the second interview. At the hearing, after submissions had been made by both parties in respect of that matter, counsel for the accused abandoned that objection, accepting that the accused's right and the corresponding obligations on the police arose at the time of the accused's arrest, and that the Act does not impose those obligations on every occasion an arrested suspect is interviewed, if he is interviewed more than once. The police had complied with the obligations under s 138(3), in respect of the right under s 138(2)(c), as soon as practicable after the accused's arrest.
The accused's submissions in respect of both the issue of voluntariness and the application for discretionary exclusion of the video records of interview on the basis of unfairness relied in part on an alleged failure by the police to comply with the guidelines set out in R v Anunga (1976) 11 ALR 412 (Anunga) in respect of interviews with Aboriginal (that is, Indigenous Australian) suspects (the Anunga guidelines). In particular, it was submitted that the accused should have been given the opportunity to have an 'interview friend' present during the interview.
The application was heard at a pre-trial hearing on 10 July 2024. Both of the video records of interview were tendered (exhibit D - the first interview; exhibit E - the second interview), together with the transcripts of the interviews, which commence at pages 793 and 822 of the prosecution brief respectively. The accused's objection to the evidence relied in part on the fact that he has an intellectual disability. It was submitted the disability had a bearing upon the voluntariness of his participation in the video records of interview and informs the question of whether the admission of the interviews would result in an unfair trial. The disability, and the way it allegedly manifested during the interviews, was also relied on by the accused as the basis for submitting that the police had breached the requirements of s 138(2)(d) of the Criminal Investigation Act. Counsel for the accused tendered three expert reports that are relied upon to establish that the accused has an intellectual disability and the extent of that disability. Those reports were:
(1)a report of Dr Brittany Wolff, General Psychologist and Clinical Neuropsychologist Registrar, dated 10 June 2024 (exhibit A);
(2)a report of Dr Rajan Darjee, Consultant Forensic Psychiatrist, dated 19 September 2023, which addresses the question of the accused's fitness to stand trial (exhibit B); and
(3)a redacted copy of a report of Dr Cindy Cabeleira, Clinical Neuropsychologist, dated 27 April 2021 (exhibit C).
The report of Dr Wolff was received into evidence subject to the need to resolve a number of objections that were raised by the State to various parts of the report on the basis that they included speculation or the expression of conclusions on what might be regarded as 'ultimate issues' in the context of the application.[1] Prior to the tender of the report, I also raised a question about whether the report adequately provided a basis for concluding that Dr Wolff had specific expertise to be able to express opinions about the cognitive functioning of a person with an intellectual disability in a police interview. That issue was also to be resolved after hearing submissions, without evidence from Dr Wolff about any specific experience in that area.[2]
[1] ts 75, 84 - 86.
[2] ts 83.
Although the contents of the prosecution brief were not tendered, they are part of the materials before the court that provide context for the video records of interview and the State's submissions about the way in which it intends to rely on the accused's statements as part of its circumstantial case.
Neither the State nor the accused adduced any oral evidence at the pre‑trial hearing.
Both parties filed detailed written submissions, which were elaborated upon in oral submissions.
At the conclusion of the hearing, having heard the submissions, I reserved my decision.
For the reasons that follow, I have come to the conclusion that the contents of both video records of interview are admissible and should not be excluded in the exercise of the court's discretion. On 5 August 2024, I gave my decision to that effect and provided brief reasons consistent with my conclusions below, so that the parties could proceed to a pre-trial conference on the basis of the evidence that would be admissible at trial. I said I would publish written reasons as soon as possible. Regrettably, I was not able to publish them before the trial of the accused. It is nevertheless appropriate that they be published so that the record reflects the basis on which the video records of interview were held to be admissible at trial.

The alleged facts of the offence

The issues to be determined require consideration of the State's case as currently disclosed in the prosecution brief. That is particularly so, given that the State intends to rely on statements made by the accused in the video records of interview as part of a circumstantial case, as explained above.

Sources of alleged facts

The alleged facts are set out in the Amended Statement of Material Facts dated 14 December 2023 (Amended SMF) in Volume 1 of the prosecution brief. The Amended SMF provides references to various materials as the sources of facts stated, including CCTV footage. However, the CCTV footage was not tendered in the proceedings. There are some still images from CCTV footage in the prosecution brief, but in most instances the quality of the images is not adequate to enable an assessment of the accuracy of the facts stated. Nevertheless, I have proceeded on the basis that the CCTV footage referred to by the State will be tendered at trial and, accordingly, have included the CCTV sources referred to in the Amended SMF.
Where I refer to witnesses saying certain things, I am referring to the contents of their statements in the prosecution brief.

Background

The accused and the deceased were related as a result of two of the accused's siblings being in a de facto relationship with two of the deceased's siblings: the accused's sister, Stephanie Binder, was in a relationship with the deceased's brother, Nicolaos Protoulis, and the accused's other sister, Summaiya Ali-Smart, was in a relationship with the deceased's other brother, Karalambos ('Harry') Protoulis.

Circumstances leading up to the incident

At the time of the alleged incident, the accused and the deceased were living together in the Unit in Yokine with another of the accused's sisters, Selene Smart. The deceased had previously resided at that address with the accused and Ms Smart in 2022. He had moved back in approximately one week before the incident.[3]
[3] Amended SMF, page 2 [3] - [4].

On the morning of 14 January 2023, the deceased left the Unit to visit his brother. He returned to the Unit shortly before 6.00 pm. The accused also left the Unit during that time. He was captured on CCTV footage speaking with other persons, including other occupants at the unit complex, and was also seen to be purchasing items at the Dianella shops in the early afternoon.[4] In the late afternoon, he went to a house in Lynmouth Road, Dianella (the Lynmouth Road address), where some of his associates were residing. One of the occupants of those premises, Michael Brumby, has said that the accused was wearing a dark hooded jumper and had a backpack whilst at those premises. Another occupant, Razalie Mamid, has said that the accused was wearing a long-sleeved jumper and a hat. Both of them say they saw the accused with a large knife. A third occupant, Benyamine Ayob, has said he saw the knife in the accused's backpack. Whilst at the Lynmouth Road address, the accused came into possession of a red bicycle from Benyamine Ayob. However, the occupants all note that the accused left the house on a different bicycle, which was all black.
[4] CCTV footage from BWS at Dianella Plaza, Dianella (summarised in Prosecution Brief (PB) 176 ‑ 177).
By approximately 6.00 pm that evening, the accused, the deceased, and Selene Smart were all back at the Unit.
At 6.18 pm, Selene Smart left the Unit and went to a nearby payphone to make some calls. When she left the Unit, the accused and the deceased were both in the living room. After making the calls at the payphone, Selene Smart went to a nearby bottle shop, where she purchased alcohol, which she drank in a park.[5]
[5] CCTV footage from 139 Shakespeare Ave, Yokine (summarised at PB 181 - 182); payphone records (PB 902 - 903).
At 6.58 pm, the accused left the Unit on a bicycle, wearing a black hooded jumper and carrying a black backpack,[6] consistent with the clothing described by the occupants of the Lynmouth Road address as being worn by the accused earlier in the afternoon. The State alleges that the accused was subsequently captured on CCTV footage from the vicinity of the Unit in Yokine at a time proximate to when the deceased was killed. It alleges, by reference to the clothing worn by the person seen on the CCTV footage, that the long-sleeved green shirt the accused had been wearing earlier in the day was visible just below the bottom of the black hooded jumper that the person is wearing in the footage, and the accused was still in the same shorts and distinctive Nike sneakers he had been wearing earlier.
[6] CCTV footage from 9/76 Alexander Dr, Yokine, 1/131 Shakespeare Ave, Yokine and 134A Shakespeare Ave, Yokine.
The accused rode down the street and returned to the Unit at about 7.05 pm, leaving the bicycle outside the back of the Unit, leaning against a car. The accused walked through the Unit to the front carpark, where he spent the next 20 minutes pacing around. It is alleged that he appeared to be agitated. The accused had a large gold ring on his right index finger and appeared to have an object in his hand.[7]
[7] CCTV footage from 1/131 Shakespeare Ave, Yokine.
Around that time, the accused's mother (Georgina Smart) drove past the address on Shakespeare Avenue and saw the accused, noting that he had a black baseball cap and was carrying a backpack.[8] Neighbours were also subsequently able to identify the accused in CCTV footage, which showed the accused pacing around wearing the black hoodie and baseball cap.[9]

The incident

[8] Statement of Georgina SMART at PB 21.

[9] Statements of Aaron QUINLAN at PB 31 - 32 and Diana WATTERS at PB 35.

At 7.41 pm, having paced around the front carpark for a period of time, the accused produced a large silver bladed knife and held it in his right hand as he entered the Unit through the front door.[10] Twenty-five seconds later, the accused left the Unit through the back door at speed, got onto the bicycle that he had left leaning against a car, and rode away from the scene immediately.[11]
[10] The State submits the accused is captured entering the unit at 7:41:43 pm on CCTV footage from 1/131 Shakespeare Ave, Yokine (PB 161).
[11] The State submits the accused is captured leaving the unit at 7:42:08 pm on CCTV footage from 1/131 Shakespeare Ave, Yokine (PB 161).
The State alleges that, whilst inside the Unit, the accused stabbed the deceased once to the right side of his neck. The wound completely transected the deceased's right common carotid artery and right internal jugular vein, penetrated through the full thickness of the thyroid cartilage, and appeared to end within the musculature on the left side of the deceased's neck. The stab wound was nine centimetres in depth, with the approximate direction being from right to left and slightly downwards.[12]
[12] Post-mortem Examination Report to the Coroner at PB 236.
The deceased was able to make his way outside through the back door of the Unit, but he lost consciousness due to significant blood loss, and ultimately died outside the Unit.
It is alleged that, after stabbing the deceased and leaving the scene, the accused returned to the Lynmouth Road address and exchanged the black bicycle he had been using for the red one that he had received from Mr Ayob earlier in the day. The accused left the property shortly afterwards.

Discovery of deceased

At around 10.15 pm, Selene Smart returned home to the Unit and found the deceased lying outside. She attempted to rouse him, however found that he was already cold and stiff. She noted that he had blood around his head. Ms Smart returned to the nearby payphone and called her mother (Georgina Smart), who called for an ambulance.
Police arrived at the Unit at 10.42 pm. St John Ambulance officers arrived at 10.50 pm.
The deceased was pronounced life extinct at 11.00 pm.
Forensic police officers attended the scene and found a significant amount of blood on and around the mattress on which the deceased had been sleeping, including blood marks on the walls and table next to the mattress, and a trail of blood with footprints in it, leading from the mattress to outside the Unit where the deceased was ultimately found.

Arrest of accused

On 15 January 2023, around 8.00 pm, about 24 hours after the incident, police arrested the accused outside a house in Larrawa Circle, Ellenbrook. That address is the home of the accused's sister, Sharee Smart. The accused was no longer wearing the black hooded jumper and black baseball cap, but was still in the long-sleeved green shirt, shorts, and distinctive Nike sneakers. The police did not locate a backpack or knife.

First interview

On 16 January 2023 at 6.37 pm, the accused participated in the first interview. I will return below to details of the interview that were referred to by the parties that are of particular relevance to the issues I need to determine. For present purposes, it is sufficient to summarise the accused's account as follows.
The accused denied being present at the Unit during the incident, being in any physical fight with the deceased or causing the deceased any injuries. The accused told police that he had been at Yagan Square in Perth from about 3.00 pm or 4.00 pm the previous day (Friday, 13 January 2023) and was still in or around the city at the time of the incident, remaining there essentially until he was arrested in Ellenbrook. The accused admitted that he intended to go back to the Unit at some stage on the Saturday or Sunday, and that he returned to the vicinity of the Unit complex, but said that police were present, so he left.
Given the accused's account at that stage, police reviewed CCTV footage from Yagan Square and the Perth Transit Authority (relating to CCTV from buses) for the relevant period. The accused was not visible in any of the footage.[13] However, he was identified on CCTV footage from Chemist Warehouse in North Perth taken on 13 January 2023,[14] which indicated that he was not in Yagan Square or the city at that time.

Second interview

[13] Statement of Andrew MACLEAN (Police officer) at PB 459 [63]; Timeline of relevant Perth Transit Authority (PTA) CCTV footage at PB 198.

[14] Summary of CCTV footage from Chemist Warehouse, North Perth at PB 210. The State relies on a receipt (PB 211) and the accused's bank records (PB 212) as confirmation of the fact that he was the person in the footage from Chemist Warehouse in North Perth.

On 17 January 2023, at 5.25 pm, the accused took part in the second interview. Again, I will return below to details of the interview that were referred to by the parties that are of particular relevance to the issues I need to determine. For present purposes, it is sufficient to summarise the accused's account as follows.
The accused maintained that he had been in or around the city at the time of the incident. He initially also maintained that he had not been at the Unit complex at any time on the day of the incident. However, when he was shown CCTV stills and footage from the 14 January 2023, he admitted that he was at the Unit for about 10 to 20 minutes around 4.25 pm before returning to Yagan Square. He admitted that the person in the long-sleeved green shirt on the footage from earlier in the afternoon was him,[15] but denied that the person entering the Unit in the black hooded jumper and baseball cap with the black backpack was him.

Further investigation

[15] CCTV footage from 4.25pm; stills shown to the accused during second interview at PB 885 - 900.

CCTV footage was obtained from Rebel Sport in Morley and BWS in Dianella from 10 and 12 January 2023 respectively, showing the accused in what appears to be the same baseball cap worn in the CCTV footage from the incident, and the same backpack.[16]
[16] Summary of CCTV footage from Rebel Sport in Morley at PB 202, and BWS in Dianella at PB 176. The State submits that a receipt from Rebel Sports at PB 203 and the accused's bank records at PB 212 confirm that he is the person in the footage wearing the baseball cap.
Further, a Facebook photo of the accused was located showing him wearing a large gold ring on his right index finger,[17] which the State submits is consistent with the appearance of the ring the person is wearing on the same finger in the CCTV footage from the vicinity of the Unit in Yokine at a time proximate to when the deceased was killed. The photo was available and shown to the accused during the second interview, and was marked 'KW15'. In addition, the accused had been arrested the day prior to the incident[18] and was found to be wearing a large gold ring on his right index finger at that time.[19] The State alleges that the ring the accused was wearing is the same as the ring in the Facebook photo, which is said to be consistent with what is seen on the finger of the person seen leaving the Unit at a time proximate to when the deceased was killed.
[17] Second interview, PB 879 - 881; Facebook photo marked 'KW15', PB 898.
[18] For stealing from a Dan Murphy's liquor store - see statements of Samuel MORREL at PB 137, Mitchell CAWLEY (Police officer) at PB 283 and CCTV stills from the Dan Murphy's CCTV footage at PB 292 ‑ 296.
[19] Statement of Mitchell CAWLEY at PB 283; photos of ring taken by Mitchell CAWLEY.
The Nike sneakers the accused was wearing at the time of his arrest were seized and examined for DNA. The State's case is that they are distinctive. Two swabs taken from stains on the right sneaker tested positive presumptively for blood and returned a mixed DNA profile. Within the mixed profile was a DNA profile that matched the deceased's DNA profile, consistent with the deceased being a contributor to the mixed profile and, therefore, consistent with the deceased's blood being on the accused's sneakers. It is the State's case that those sneakers matched the sneakers worn by the person of interest in the CCTV footage from the incident.

The interviews

Before considering the relevant legal principles and statutory provisions, and addressing the parties' submissions, it is appropriate to set out relevant aspects of the two interviews in further detail.

First interview - 16 January 2023

The first interview was conducted on 16 January 2023 by Detective Senior Constable Wade (Detective Wade), with Detective Senior Constable Stone (Detective Stone). It commenced at 6.37 pm, as confirmed by Detective Wade on camera (the time counter on the screen is about one minute out, showing 18:38). The interview proceeded for a total time of about 41 minutes, with a break for 9 minutes after about 35 minutes.
It is appropriate to note that the accused appeared to be tired from the start and yawned from time to time. However, he answered in the affirmative when he was asked if he had had a good sleep since the previous day.[20] Immediately before that exchange, Detective Wade noted that the previous day the accused said he had used methamphetamine about four hours before he was arrested.[21] When asked if he felt 'under the influence of that methamphetamine anymore', the accused answered, 'Oh, nup.' The accused agreed that he had had food and drinks.[22] He was told (and he acknowledged) that, if at any time he wanted 'something to drink or anything else or a break or a rest', he should let the officers know, and they would leave the room and recommence the interview when he was ready.[23] As I have said, there was a break after about 35 minutes, after which the accused confirmed that he had been to the toilet and had had a snack.[24]
[20] PB 796.
[21] PB 796.
[22] PB 796.
[23] PB 796.
[24] PB 818.
At the commencement of the interview, the accused gave his full name, date of birth and address, when asked. The address he gave was the address of the Unit. By way of general observation, I note that many of his answers from that point onwards were short, such as 'yep', 'nup', 'don't know' or 'I'm not sure', and were sometimes preceded with an 'um' or other verbal hesitation, but he also gave narrative answers. It is also apt to note that, at times, the accused appeared to change his answer, for instance, from saying 'Nup' to saying 'Oh yeah.' The impression I formed was that such changes might be explained by either a less than attentive initial response, followed by a different answer upon the accused giving the question proper attention, or a change of recollection by him upon a moment's reflection. Of course, to the extent that such aspects of the interview might have significance, it would be for the jury to make their own assessment about the potential explanation at trial.
After the accused provided his name, date of birth and address, the following exchange occurred which was intended to ascertain the accused's level of comprehension:[25]
[25] PB 794 - 795. Extracts quoted in these reasons are from the transcripts of the video records of interview and retain the names used in the transcripts to identify the speakers.
DET S/CON WADE: What level of education have you reached?
SMART: Oh, year 11.
DET S/CON WADE: Year 11. Did you finish year 11?
SMART: Oh, yeah.
DET S/CON WADE: Yep. Are you employed or working at the moment?
SMART: Oh, nup.
DET S/CON WADE: No. All right. Can you read and write English?
SMART: Yeah.
DET S/CON WADE: Yep. So if I hand you a newspaper you can read the article in the newspaper?
SMART: Yep.
DET S/CON WADE: Yep. And you can also write English?
SMART: Yep.
DET S/CON WADE: Yep. All right. If at any time during this interview, um, I ask a question or Chad asks a question you don't understand, just let us know, and we'll rephrase it into something we - you do understand, hopefully. Um, are you in any way affected by alcohol at the moment?
SMART: No.
DET S/CON WADE: No. Are you in any way affected by drugs or medication at the moment?
SMART: No.
DET S/CON WADE: No. Um, are you suffering from any illnesses?
SMART: Oh, nup.
DET S/CON WADE: No. Um, and what about any injuries at the moment?
SMART: Oh, um, nup.
DET S/CON WADE: Nup. All right.
SMART: I've got, um, disability.
DET S/CON WADE: Yep. What's the disability?
SMART: Uh, just a - intellectual.
DET S/CON WADE: Intellectual disability. All right. Um, what does that disability, sort of, prevent you from doing, or how does the disability affect you?
SMART: Oh, I don't know.
DET S/CON WADE: Don't know?
SMART: Yep.
DET S/CON WADE: All right. So it's pretty important, everything I go through, that you understand it. Okay. So we'll do it nice and slowly. And if there's something you don't understand, just let me know. All right. We'll - we don't - we're not trying to confuse you or trick you or anything like that. The important thing is you understand everything that's happening in this room. All right.
SMART: Yeah.
Detective Wade then reminded the accused that, although he had been arrested as a suspect for the offence of grievous bodily harm, the deceased had died, a fact of which the accused had been informed the previous night.[26] There followed the exchange referred to at [46] above, after which Detective Wade reminded the accused that he had been provided with his rights when he was arrested. He then stated the rights again.[27] The accused confirmed he had spoken with a lawyer twice, most recently ten minutes before entering the interview room.[28] He confirmed the lawyer had provided him with advice.[29] Detective Wade then said:[30]
So, if at any time you want to make another call to that lawyer, you let me know. But obviously your lawyer's given you your advice. Okay.
[26] PB 796.
[27] PB 797.
[28] PB 797.
[29] PB 797.
[30] PB 797.
The accused also confirmed he had spoken with his mother about ten minutes before the interview. There was then the following exchange:[31]
DET S/CON WADE: … so, yeah, if at any time you want to execute any of those rights or make any more calls, just let me know and we can arrange something. All right?
SMART: Mmm.
[31] PB 797.
Detective Wade then said, 'This is the important part', and went on to tell the accused that they needed to speak to him about the incident that had occurred at his unit, but that he first needed to give the accused a caution and make sure that the accused understood that caution. The accused said, 'Yeah.'[32]
[32] PB 797.
The interview then proceeded as follows:[33]
[33] PB 798 - 799.
DET S/CON WADE: All right. So that caution is that you don't have to say anything unless you wish to do so. Anything you do say will be recorded, and the recording will be burnt to a DVD, and that recording can - may be used in evidence in court.
SMART: Yeah.
DET S/CON WADE: Do you understand that?
SMART: Yeah.
DET S/CON WADE: Okay. In your own words, can you explain that back to me?
SMART: Uh, in court.
DET S/CON WADE: Yep.
SMART: And, yeah [indistinct] in court.
DET S/CON WADE: Okay.
SMART: [indistinct]
DET S/CON WADE: When I say that you don't have to answer the questions, what does that mean?
SMART: Uh, nup, nothing.
DET S/CON WADE: Yep. If I ask you a question, do you have to answer it?
SMART: No.
DET S/CON WADE: No. And if you don't want to answer it, what would you say?
SMART: Uh, no comment.
DET S/CON WADE: Exactly. No comment, um, instead of just sitting there quietly, we'd just prefer you to say 'no comment' or something like that. All right. So, if I ask you 10 questions, how many do you have to answer?
SMART: None.
DET S/CON WADE: None. Exactly. All right. And when I say that this is going to be recorded, how can it be recorded?
SMART: Um, through the, um, through the camera.
DET S/CON WADE: Yep, so there's a camera behind that glass panel over top there, you can actually see it.
SMART: Yeah.
DET S/CON WADE: And there's a couple of button looking things on the table and microphones.
SMART: Yeah, I didn't want to, you know, do an interview.
DET S/CON WADE: Yep.
SMART: Yeah, this, um, yeah.
DET S/CON WADE: Yep, so you've got your lawyer - legal advice?
SMART: Yeah.
DET S/CON STONE: Yep. Okay. As I said to you, we're still in - we're still going to ask you some questions, but if your lawyer's told you not to do one, then you don't have to answer them. Okay. I'm still going to ask you some questions, but it's up to you, on your legal advice, as to whether you do answer them or not. All right.
SMART: Yeah.
DET S/CON WADE: So where can this recording then be played?
SMART: In court.
DET S/CON WADE: In court. And do you know who would be watching the recording in court?
SMART: Yeah, the magistrate.
DET S/CON WADE: The magistrate, or a judge, depending on which court it is.
SMART: Yeah.
When asked what he could tell the interviewers about the incident, he said:[34]
Um, nothing. Oh, I'm not sure, I wasn't there.
[34] PB 799.
He then said:[35]
I came back and I was ride - riding on the bus and I saw, um, all police there. And it was, like, closed down or something.
[35] PB 799.
It is sufficient for present purposes to note that the accused did not give a detailed narrative account at any stage of his whereabouts or movements in the periods leading up to, during or after the time when the incident occurred in which the deceased was killed. Rather, his account emerged through answers to probing questions. Some of the answers were in narrative form, although brief. The essence of the accused's account was that he denied being present during any incident with the deceased on 14 January 2023, being in any fight with the deceased, or causing the deceased any injuries around the time of his death. As the State noted in its submissions, in summary, insofar as the days surrounding the incident were concerned, the accused said that:
(1)On Friday 13 January 2023, at around 3.00 pm or 4.00 pm, he went alone to Yagan Square in Perth.[36]
(2)On Friday night, he slept at the house of a mate, whose name he did not know.[37]
(3)He did not recall what he was wearing on the night.[38]
(4)On Saturday, 14 January 2023, he spent all day in town near Yagan Square[39] until he went to his sister Shari's house in Ellenbrook.[40]
(5)He took the bus to his house at some stage on Saturday, but he saw 'all the police there' and left.[41]
(6)He found out from his mum that the deceased had died. She called him and told him about it.[42]
[36] PB 800 - 801.
[37] PB 802, 806, 818.
[38] PB 806.
[39] PB 802.
[40] PB 801.
[41] PB 808 - 809.
[42] PB 819.
I note that the accused was confused at times about the days, which seemed to be due, at least in part, to the fact that he was not sure what the day was when he was being interviewed.[43] Nevertheless, it appeared from the flow of the interview that he was able to relate particular events to either the Friday or Saturday once the police clarified the day, and related the questions to the number of days before the interview.
[43] PB 805.
In its submissions, the State noted that, in relation to other background matters, the accused said in the first interview that:
(1)He had lived at the Unit for about two or three years.[44]
(2)He lived there with his sister, Selene Smart.[45]
(3)The deceased had been living there recently, for a couple of weeks. He knew the deceased through his sister Stephanie.[46]
(4)The deceased slept on a mattress in the lounge room.[47]
[44] PB 806.
[45] PB 806 - 807.
[46] PB 807 - 808.
[47] PB 812.
There are some other matters that will be relevant to a consideration of the accused's submissions concerning his level of comprehension and the reliability of his account. First, it is apparent that the accused appreciated the difference between not knowing the answer to a question and not wanting to say the answer if he did know. When he said that he did not know the name of the mate with whom he went to stay on the Friday night, he was asked, 'You don't know, or you don't want to say?' He answered, 'I don't know.'[48] Later, he was asked about the mobile phones that were in his possession at the time he was arrested. He said he had two phones, one that had been given to him by one sister, and the other which belonged to his other sister.[49] The following exchange then occurred (italics added):[50]
[48] PB 806.
[49] PB 815.
[50] PB 815 - 816.
DET S/CON WADE: All right. Do those phones work?
SMART: Yeah.
DET S/CON WADE: Do they have SIM cards in it?
SMART: Yeah.
DET S/CON WADE: Yeah. Do they have PIN numbers?
SMART: Nup.
DET S/CON WADE: Nup. So they're unlocked are they?
SMART: Yeah.
DET S/CON WADE: Yep.
SMART: Yeah, one's got PIN number.
DET S/CON WADE: Yep. Do you know what that PIN number is?
SMART: Oh, nup.
DET S/CON WADE: Nup?
SMART: Nup.
DET S/CON WADE: All right. And what about - what about the other one? Does that have a - a lock or anything on it?
SMART: I don't know.
DET S/CON WADE: No. All right.
DET S/CON STONE: Which one's which?
SMART: Um, don't know.
DET S/CON WADE: Don't know or don't want to tell us?
SMART: Uh, don't know. Mind games, do you know what I mean? Control. Hey? Nah. Do you want to play?
The accused's gestures at the time of his last answer and comments, together with what he said, suggested, in my view, that he thought the asking of the question 'Don't know or don't want to tell us?' was the police trying to engage him in 'mind games', and it was not going to work if they wanted to 'play'. This tends to support an inference that he was paying attention to the questions and was mindful of the need to be careful how he answered questions.
The other matter is that the accused appeared to be mindful of the need to distinguish between an 'injury' and self-inflicted damage, when he was asked about an apparent injury to his eye, in the following exchange:[51]
[51] PB 812 - 814.
DET S/CON WADE: You right? All right. What I might get him - tell me about your eye, your injuries.
SMART: I don't have any injuries. This is from methamphetamine.
DET S/CON WADE: Yep.
SMART: Yeah.
DET S/CON WADE: Okay. So the - - -
SMART: Oh, the [indistinct] the chemicals burnt my eye.
DET S/CON WADE: Yep. All right.
SMART: Yeah.
DET S/CON WADE: So you - you take methamphetamine?
SMART: Yeah.
DET S/CON WADE: How do you take it?
SMART: Oh, with the, like, just a needle.
DET S/CON WADE: Needle, all right.
SMART: Yeah.
DET S/CON WADE: And methamphetamine causes you to what? To pick at your eye, or it - - -
SMART: Oh, yeah.
DET S/CON WADE: Yep.
SMART: Because if something went in my eye, I think dust or something.
DET S/CON WADE: Yep.
SMART: And, like [indistinct] like, I was trying to take it out and wash it out and, yeah. And try and - - -
DET S/CON WADE: Have you seen - - -
SMART: - - - that's - - -
DET S/CON WADE: Have you seen your eye?
SMART: Oh, nah. I haven't seen my eye.
DET S/CON WADE: Can I take a photo and show you your eye?
SMART: Oh, yeah.
DET S/CON WADE: Yep.
SMART: Yep. Yeah.
DET S/CON WADE: So it's actually, like, down to - down to the b - to the - sort of, it's bleeding. It's an open wound almost.
SMART: Yeah.
DET S/CON WADE: Yeah. So how did that occur?
SMART: Oh, from just the - like, like, something in my eye.
DET S/CON WADE: Yep.
SMART: Like, I was washing it out with water.
DET S/CON WADE: Yep.
SMART: And just, yeah, I dunno. Something went in my eye. And, yeah, just, um, I don't know how it got like this, but. It's a bit weird.
DET S/CON WADE: Mmm. It's quite a - you've actually got, like, a black eye from it as well.
SMART: Yeah, I'm not really sure.

At the conclusion of the interview, the following exchange occurred, which is relevant to the issue of voluntariness:[52]
[52] PB 821.
DET S/CON WADE: Nup. All right. So that completes this interview. Okay. I'll just go through some final questions. Um, have you answered all the questions we have asked you today of your own free will?
SMART: Yeah.
DET S/CON WADE: Yep. Have you been threatened at all to participate in this interview?
SMART: Oh, nup.
DET S/CON WADE: Nup. Have you been promised anything in return for participating in this interview?
SMART: Nup.
DET S/CON WADE: Nope. Is there anything else you wish to say in relation to this matter?
SMART: Yeah.
DET S/CON WADE: Yep.
SMART: Um, oh, nah.
DET S/CON WADE: No. Nothing else you want to say?
SMART: Nup.

Second interview - 17 January 2023

The second interview was conducted on 17 January 2023 by Detective Wade, with Detective Senior Constable Maclean (Detective Maclean). It commenced at 5.25 pm, as confirmed by Detective Wade on camera (the time counter on the screen is about four minutes out, showing 17:29). The interview proceeded for a total time of about one hour and 49 minutes, with a break for 36 minutes after about one hour and 18 minutes (18:47 on the counter, resuming at 19:23).
In the second interview, the accused was asked the same questions he had been asked in the first interview to ascertain his level of comprehension, and he gave the same answers concerning his level of schooling and his ability to read and write English.[53] He confirmed he was not affected by alcohol, drugs or medication, that he was not suffering from any illnesses, that his eye injury was not affecting him, and that he was not tired.[54] Although the accused initially said he had not spoken to a lawyer, which may have been because he thought he was being asked about the period since the first interview, he eventually agreed he had spoken with a lawyer at the Aboriginal Legal Service the day before, and had received advice.[55] The accused was then told about his rights again, including the right to an interpreter. The following exchange occurred in that regard:[56]
DET S/CON WADE: … And you also have the right to, uh, an interpreter if you need an interpreter, but language seem - sorry. English seems to be the - the main language you speak. Is it?
SMART: Yeah.
DET S/CON WADE: Do you speak any other languages?
SMART: Uh, no.
DET S/CON WADE: No. And you understand me okay?
SMART: Yeah.
DET S/CON WADE: Yep. All right. Um, I suppose, as we go along, we're gonna be asking you a series of questions. Okay? So, if at any stage during these questions, you don't understand, if I ask it or Andrew asks it, just let us know, and we'll rephrase it into something you do understand.
SMART: Yeah.
[53] PB 823 - 824.
[54] PB 824.
[55] PB 825 - 826.
[56] PB 826 - 827.
The accused agreed that he had been told he was now under arrest on suspicion of murder.[57] He was told that if he wanted to exercise any of his rights during the interview, to let Detective Wade know, and the police would 'arrange for that to happen'.[58] The caution was then provided to the accused as follows:[59]
[57] PB 827.
[58] PB 827.
[59] PB 827 - 828.
DET S/CON WADE: All right. As I said, we have to talk to you about a murder, um, that occurred at about 7.40 pm, um, on Saturday, the 14th of January, 2023 at unit 1-76 Alexander Drive in Yokine. All right? Before I do talk to you about that, I have to caution you. Okay? And it's pretty important that you understand this caution, and I'm gonna ask you to sort of rephrase it back to me. Okay? Um, the caution is that you don't have to say anything unless you wish to do so, and anything you do say will be recorded, and may be used as evidence. Okay? You can answer some of my questions, and not others. It's completely up to you. Do you understand that?
SMART: Yeah.
DET S/CON WADE: Okay. Can you explain that back to me in your own words?
SMART: Uh, I don't have to, uh, an - answer the questions. I - uh, what is it again?
DET S/CON WADE: Yeah. Do you want me to go through it step by step? Like we did the other night?
SMART: Yeah.
DET S/CON WADE: Yep. So, when I say you don't have to say anything unless you wish to do so, what does that mean to you?
SMART: Um, I don't have to answer any questions.
DET S/CON WADE: Exactly. So, I can ask you as many questions I want, and if you don't want to answer them, what do you say?
SMART: Something like no comment.
DET S/CON WADE: Exactly. All right. Whose choice is it to answer the question?
SMART: Uh, me.
DET S/CON WADE: Yep. So, I said this the other day, but if I ask you five questions, how many do you have to answer?
SMART: Uh, none.
DET S/CON WADE: Exactly. All right. So, it's completely up to you which questions you answer, if you want to answer any questions at all. If you do answer questions, how's this being recorded?
SMART: Uh, from the camera?
DET S/CON WADE: Yep. The cameras and the microphones in the room.
SMART: Yep.
DET S/CON WADE: All right. And where can this recording be played?
SMART: Uh, in court,
DET S/CON WADE: In court. And who would be viewing this recording in court?
SMART: Uh, the magistrate.
DET S/CON WADE: Yep. Or the judge, or jury, depending on, sort of, which court [is] involved .... Is that correct?
SMART: Yeah.
It is fair to say, as the State submitted, that during the course of the interview that followed, the accused generally confirmed the account he gave in the first interview in respect of the days surrounding the incident, as outlined above. I note that, when he was asked to draw the location of the Unit, he made a sketch which contained little detail ('KW1'). However, he was able to name the surrounding streets, was able to describe that the entrance to the Unit faced the carpark, and was able to describe where various other features were on the sketch.[60] He was also able to provide a description of the layout of the Unit.[61] He said that he used both the front and the back entrances to arrive and leave the Unit.[62] He acknowledged there was a fence at the back of the units, but said it was not that tall and agreed it was 'easy enough' to jump over it.[63] He was asked if he wished to sign the sketch he had made, to identify it as his sketch, but was told he did not have to do so. He agreed to sign it.[64]
[60] PB 835 - 839.
[61] PB 840 - 841.
[62] PB 838.
[63] PB 838 - 839.
[64] PB 839 - 840.
The accused also provided the following details:
(1)He got to Perth on the Friday (13 January 2023) by catching the bus from Morley and paying in change.[65]
(2)He was not sure where he slept on the Saturday night, but he stayed with a friend.[66]
(3)The clothes he was arrested in were the same clothes he wore on Friday and Saturday, which included a green shirt and blue pants, but did not include a hat.[67]
[65] PB 831.
[66] PB 833, 845 - 846.
[67] PB 834.
The accused was told that, as part of the investigation, police had secured 'a lot of CCTV footage from neighbours and all of that sort of stuff'.[68] When asked if he was aware of any CCTV cameras around the units, he said, 'Uh, nope.'[69] He was shown images taken by two cameras from a neighbour's house, one of which captured vision of the carpark of the unit complex, with the Unit appearing in a corner of the building (on an image marked 'KW2'),[70] and the other of which captured vision of the rear of the Unit.[71] The accused agreed that the two cameras would show if people arrived at or left the Unit.[72]
[68] PB 841.
[69] PB 841.
[70] PB 885.
[71] PB 841 - 842.
[72] PB 842.
During the interview, the accused was then shown parts of the CCTV video footage, by the police playing excerpts of the video and showing the accused stills from the video. Although the accused maintained initially that he was not at the Unit on Saturday (14 January 2023) between midday and midnight,[73] he then agreed that the still marked 'KW5' from the CCTV footage from the neighbour's property showed him arriving at the Unit on his bicycle on 14 January 2023 at 4.25 pm.[74] He initially said it 'might be' him, but then admitted it was him after acknowledging that he recognised the clothing the person was wearing as his clothing, and that the bike was his.[75] He denied that he was the person depicted in another image from the footage ('KW4') who appeared to be walking along the fence line.[76]
[73] PB 842.
[74] PB 843, 888. Detective Wade explained to the accused that the time stamp on the video was just over 10 minutes slow, so that, while it appeared as 4.14 pm on the video, the actual time was 4.25 pm.
[75] PB 843.
[76] PB 842, 887.
Having been shown 'KW5', the accused admitted that he remembered going to the Unit that day.[77] In answer to specific questions, he said:
(1)He was only at home for about 10 or 20 minutes;[78]
(2)No one was at home when he got there, but his sister 'rocked up' while he was there and was making something to eat;[79] and
(3)The deceased was not there while he was at the Unit or when he left;[80] he did not see the deceased at the Unit.[81]
[77] PB 843.
[78] PB 843.
[79] PB 843 - 844.
[80] PB 844.
[81] PB 852 - 853.
However, when parts of the statement of Selene Smart were read to the accused, he agreed that he had been at the Unit in the morning, when Selene was there, but the deceased had gone somewhere.[82] He agreed he had watched a television show with Selene after lunch.[83] There was then the following exchange:[84]
[82] PB 851 - 852.
[83] PB 852.
[84] PB 852 - 853.
DET S/CON WADE: Yep. Did Peter come home at any stage during that?
SMART: Uh, no.
DET S/CON WADE: No. So, the next paragraph [reading from the statement of Selene Smart]: 'When the show was about halfway through, Peter arrived home.'
SMART: Yeah.
DET S/CON WADE: So, you're saying Peter wasn't there. She's saying Peter was.
SMART: Oh, I think I went out for a bit.
DET S/CON WADE: You went out?
SMART: Yeah.
DET S/CON WADE: Were you - did you go out before he arrived, or after?
SMART: No.
DET S/CON WADE: Did you see him there?
SMART: Uh, no.
DET S/CON WADE: She said Peter came in over the back fence.
There was no response by the accused to that last statement by Detective Wade. Detective Maclean then asked the accused questions about how much of the television show the accused had watched and the duration of the show. The accused said he was not sure how long the show went for. He said he did not watch a lot, 'like, five minutes of it', and he could not remember what happened on the show.[85]
[85] PB 853.
The interview continued as follows:[86]
[86] PB 853 - 854.
DET S/CON WADE: All right. So, while you were there with Celine, was Peter there?
SMART: Um, I'm not sure.
DET S/CON WADE: You're not sure. Do you remember seeing Peter at the house on Saturday?
SMART: No. No, I didn't. No. No.
DET S/CON WADE: No. All right. So, next, [reading from Selene Smart's statement] 'Peter came into the living room and sat down with us. Peter and I were chatting. Samuel was doing his own thing, probably on his phone. We were all in the room.' Do you remember that?
SMART: Uh, yeah, I think.
DET S/CON WADE: Tell me about it.
SMART: Well, … I think we were all, like, sitting down and that, and then I left. They were watching the show, and then I left.
DET S/CON WADE: You left?
SMART: Yeah.
DET S/CON WADE: Where did you go?
SMART: I went to the Yagan Square.
DET S/CON WADE: Okay. So, when you left, … who was still at the house?
SMART: Uh, Selene and, um, Peter.
The accused said he did not come back to the house, as he was arrested.[87] When he was referred again to the image in 'KW5' (the person arriving on the bicycle), he said, 'That could have been me.'[88] However, he then appeared to accept again that it was him, as, when he was asked what happened after that picture, he said:[89]
SMART: Um, uh, nothing. Just [indistinct] yeah, I was sort of sitting down and - yeah.
DET S/CON MACLEAN: So, this is - this is before you watched The Bachelor in the room with your sister and Peter?
SMART: Uh, yeah.
DET S/CON MACLEAN: Yeah. And then you said you left?
SMART: Yeah.
[87] PB 854.
[88] PB 854.
[89] PB 854.
The accused said he was not alone with the deceased at the house at any stage on the Saturday afternoon.[90] When a part of Selene Smart's statement was put to him, in which she said she left the Unit at one stage, leaving the accused and the deceased at the Unit, the accused disagreed:[91]
DET S/CON WADE: … So, in Selene's statement, she says, at some stage in the afternoon, maybe about an hour and a half after The Bachelor finished, I'd have – 'I decided to go out for a bit. When I left, Peter and Samuel were in the living room.'
SMART: Yeah, no. I left when - before she left.
DET S/CON WADE: You left before she left?
SMART: Yes.
DET S/CON WADE: All right. So, you weren't in the room alone with Peter?
SMART: No.
[90] PB 855.
[91] PB 855 - 856.
The accused denied that anything had occurred between him and the deceased during the afternoon of Saturday, 14 January 2023.[92]
[92] PB 856.
The police then showed the accused CCTV video footage taken at 7.40 pm on the Saturday, which showed a person walking into the Unit while carrying an item which the police suggested was a knife, and which, arguably, does have the appearance of a knife with a large blade.[93] The accused said he was not sure if that was what the person was carrying.[94] The interviewing officers drew the accused's attention to the clothing worn by the person in the CCTV footage, and suggested that the various items of clothing were consistent with the clothing he had been wearing that day. However, he consistently denied it was him in the footage.[95] He said he was not sure what shoes the person in the footage was wearing.[96] As for the colour of the shirt worn by the person in the footage (bearing in mind that the accused had agreed he had been wearing a green t-shirt), the following exchange occurred:[97]
DET S/CON MACLEAN: Yeah. So, that sort of - what colour do you call that?
SMART: Not green.
DET S/CON MACLEAN: Yeah. It's like a weird green colour, I guess, but green. Yeah.
SMART: Yeah.
[93] Still images from the footage are in 'KW10' at PB 893.
[94] PB 861.
[95] PB 856 - 861.
[96] PB 857.
[97] PB 857.
The accused reiterated that he was in Yagan Square and Northbridge at that time (that is, around 7.40 pm).[98] He said he was in the area of the shops, 'near Myer's and that',[99] but was not able to be precise about his location when the police indicated that they could find the CCTV cameras that would have had the relevant areas under observation, and would be able to find him on the CCTV footage.[100] When asked if he would be on those cameras, the accused said, 'Uh, yeah.'
[98] PB 858 - 859.
[99] PB 859.
[100] PB 859.
Returning to the CCTV footage from the neighbour's property, Detective Wade suggested that the accused has a distinctive way of walking and 'canter', to which the accused responded, 'Yep.'[101] However, when it was suggested to him that the person in the CCTV footage was 'walking exactly the same' as the accused, he said, 'I don't know' and 'I'm not really sure.'[102] When asked if the person in the footage was him, he said, 'Uh, no.'[103] In relation to the shoes, he said, 'A lot of people with the same shoes as mine.'[104]
[101] PB 860.
[102] PB 860.
[103] PB 860.
[104] PB 861.
After Detective Wade pointed out that the person went into the Unit with a knife, the accused said, 'That's not me' and 'That's probably someone else.'[105] When asked why he was saying that, the accused said, 'That's - that's not what I wore, and that's no - that's not me.'[106] He also said that a lot of people came into the complex, and repeated that it was not him.[107] The person in the CCTV footage appeared to be wearing a 'hoodie' both before going into the Unit and when coming out of the Unit later, as appears in stills from the CCTV, 'KW10' and 'KW16',[108] which were shown to the accused, although he was also shown the video footage.[109] The accused denied he was the person in those images. When asked if he owned any hooded jumpers, the accused said:[110]
No, I – no. Pretty sure. Yeah.
[105] PB 861.
[106] PB 862.
[107] PB 862 - 863.
[108] PB 893, 899.
[109] PB 856, 860 - 863.
[110] PB 863.
This was taken by the officer ultimately as an admission that the accused did have hooded jumpers, prompting the question of what colour they were. The accused said they were white and were at his 'mum's house'.[111]
[111] PB 863.
Detective Wade also put to the accused that the person in the CCTV footage was 'playing at his left eye', which the accused had been doing the last two days while he had been with Detective Wade, because of the injury to the accused's eye.[112] The accused said, 'No',[113] and later said, 'Yeah, it's not me.'[114]
[112] PB 864.
[113] PB 864.
[114] PB 865.
The accused denied stabbing the deceased.[115] When asked if he was sure, he said, 'Yeah.'[116] When he was shown a photo of the wound to the deceased, he denied that he was responsible for causing the injury.[117] He said he 'wouldn't do that', and that it was 'probably one of [the deceased's] mates or something', but he did not know.[118]
[115] PB 864.
[116] PB 864.
[117] PB 864.
[118] PB 865.
When the accusation was put to the accused directly that he had gone to the house and stabbed the deceased in the neck, he said, 'Yeah, no. That wasn't me. I wouldn't do that.'[119] When Detective Maclean asked him if he understood that the police were saying that the person holding the knife looked 'very, very similar in appearance' to him, the accused said, 'I'm not really sure. Definitely wasn't me.'[120] Shortly after that, the accused explained that when he said, 'I'm not really sure', he meant that he had nothing to do with it.[121] When it was put to him again that the police were alleging that he was responsible for the incident, he said, 'No, I'm not.'[122]
[119] PB 866.
[120] PB 866.
[121] PB 866.
[122] PB 867.
After taking a break, the following exchange occurred:[123]
[123] PB 868 - 869.
DET S/CON MACLEAN: Sorry - do you agree that, mate, in the - what? 38 minutes since we turned the video on pause, do you remember what we did?
SMART: Um, did you - did - asking questions, is it?
DET S/CON MACLEAN: Asking questions?
SMART: Well, I - yous was asking questions, isn't it?
DET S/CON MACLEAN: What questions did we ask?
SMART: Well - well - well, where was it, and that?
DET S/CON MACLEAN: No, that was before the interview. That's before we paused it. So, when we - when we put it on pause, I said, I wasn't gonna ask you any questions. And do you agree that you - you then asked for a cigarette?
SMART: Oh yeah.
DET S/CON MACLEAN: Yeah. We went out the back, out - out here.
SMART: Yeah.
DET S/CON MACLEAN: Had a cigarette - - -
SMART: Yeah.
DET S/CON MACLEAN: - - - and then came back in here. Have I asked you any question - outside of, you asked for some food. I said, 'Well, once this is done, we'll organise some food.' I asked you if you had any preferences for food, and if you - anything you couldn't eat, but have I asked you any questions in regards to anything, um, in relation to what we're interviewing you about?
SMART: Um, no.
DET S/CON MACLEAN: No. Okay. So, that's just quite important to cover off, just cause the video was getting the beeping that was going on. I just wanted to cover off with you, that you were happy to - I haven't asked you any questions in relation to this while the video's been off. Okay?
SMART: Yeah.
DET S/CON MACLEAN: Happy with that?
SMART: Yeah.
The accused was then asked about stills from CCTV footage from another unit at the residential complex, namely unit nine. The accused agreed that the person in the stills, 'KW12', 'KW13' and 'KW14',[124] was him.[125] The images show a bulge in the front of the accused's shirt, from which it could be inferred that he had an item concealed under his shirt. The accused said he was not sure what it was.[126] He said that he did not know, but it might have been 'a pipe or something', and it was not a knife.[127]
[124] PB 895 - 897.
[125] PB 869 - 870.
[126] PB 870.
[127] PB 870 - 871.

There were then questions about which hand the accused used. Although he initially said he was right-handed, he went on to say he was also left-handed, eventually saying he is 'both-handed'.[128] He was shown images from the CCTV video of the person leaving the Unit, as described earlier, and it was pointed out that the person had a drink in their hand. The accused said he was not sure.[129] When it was put to him that it was him, he said, 'No.'[130]
[128] PB 871 - 872.
[129] PB 872.
[130] PB 873.
The accused was then asked about whether he had seen his mother that night, referring to a statement given by Georgina Smart.[131] The accused said he had not seen her.[132] When he was told that his mother had described him to be wearing a black baseball cap and a backpack, among other things, he said, 'I'm not sure.'[133]
[131] See [26] above.
[132] PB 875 - 876.
[133] PB 875.
The accused was then asked about the ring referred to at [25] and [42] above.[134] The accused agreed that he had a Facebook account in the name of Sam Binder, and that the person appearing in a photo on that account, wearing a gold ring, was him.[135] When asked if the person in the CCTV footage, who appeared to be wearing a gold ring, was him, he said variously, 'No idea', I'm not sure' and 'I don't know',[136] but when asked to clarify whether he was saying it was not him, or he did not know whether it was him, the accused said, 'Uh, it's not me.'[137]
[134] PB 877 - 880.
[135] PB 879 - 880.
[136] PB 880.
[137] PB 881.
The second interview concluded as follows:[138]
[138] PB 882.
DET S/CON WADE: All right. We'll stop the interview now, man. I'll just go through these final questions. Have you answered all the questions we've asked you today of your own free will?
SMART: Oh yeah.
DET S/CON WADE: Yep. Have you been threatened to participate in this interview?
SMART: No idea.
DET S/CON WADE: Sorry?
SMART: Uh, no.
DET S/CON WADE: Let me ask you again. Have you been threatened by us to participate in this interview?
SMART: No. Yeah. No, not.
DET S/CON WADE: Have you been promised anything in return for participating in this interview?
SMART: Uh, no.
DET S/CON WADE: Is there anything else you wish to say in relation to this matter?
SMART: Uh, no.
The accused was then informed that a formal assessment of the evidence would be undertaken to determine what further action would be taken, and that he would be provided with a copy of the interview if he was charged.

The law

In The State of Western Australia v Gandy [No 2],[139] Corboy J identified and discussed comprehensively the principles applicable on an application of this kind, going to the issues of voluntariness, the 'fairness discretion', exclusion for public policy reasons and s 154(2) of the Criminal Investigation Act. I respectfully adopt his Honour's analysis at [68] - [73] (voluntariness), [78] - [83] (fairness discretion) and [44] - [52] (Criminal Investigation Act provisions), all of which is broadly relevant to the issues in this application.[140] For convenience, I will outline the key principles. It is also necessary for me to emphasise some aspects of the authorities that are of particular relevance to the circumstances of this case.

Voluntariness

[139] The State of Western Australia v Gandy [No 2] [2015] WASC 386.

[140] I also took this approach in Brott v The State of Western Australia [2016] WASC 300, and what follows is largely adopted from that judgment, but it is appropriate to outline the principles again for present purposes.

An admission made by an accused person out of court is not admissible in evidence unless it was made voluntarily, that is, 'made in the exercise of a free choice to speak or be silent'.[141] This has been referred to as 'basal voluntariness' and is concerned with confessions made under compulsion.[142] An admission is not made voluntarily if the will of the accused has been overborne as the result of a threat, duress, intimidation, persistent importunity or sustained or undue insistence or pressure from a person in authority, or as a result of a promise held out to the accused by such a person.[143] If there is evidence that the accused's statement was preceded by an inducement, such as a threat or promise, held out by a person in authority, then it is not voluntary unless the inducement is shown to have been removed.[144]
[141] R v Lee [1950] HCA 25; (1950) 82 CLR 133 (R v Lee), 149.
[142] Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396, 417 [47], 420 [60] (Gummow & Hayne JJ).
[143] Lee (144); Tofilau [60] (Gummow & Hayne JJ).
[144] Lee (144).
While the justification for the rule is that a confession obtained in such circumstances is 'deemed so unreliable as a class that it should not be available for consideration'[145] as a matter of policy, its application depends on the nature and effect of any inducement.[146] The issue under this head of exclusion is not the propriety of police conduct, but the effect of police conduct, in all the circumstances, on the will of the accused. The court must have regard to the age, background and psychological condition of the accused person and the circumstances in which the confession was made.[147]
[145] Tofilau [53] (Gummow & Hayne JJ).
[146] Ibrahim v The King [1914] AC 599, 610 - 611(Lord Sumner); R v Swaffield [1998] HCA 1; (1998) 192 CLR 159, 168 [11] (Brennan CJ).
[147] Collins v The Queen [1980] FCA 82; (1980) 31 ALR 257, 307 (Brennan CJ).
However, as was pointed out by Gummow and Hayne JJ in Tofilau:[148]
The conclusion that a confessionalist had no choice to speak or stay silent is not required (and without more being established, would not be open) if it is observed that the confessionalist acted under some misapprehension or mistake, even if that misapprehension or mistake was induced by the person to whom the confession is made. Nor is that conclusion required (and without more being shown, the conclusion would not be open) if it is observed that there was some imbalance of power between the confessionalist and the person to whom the confession was made.
[148] Tofilau [63] (Gummow & Hayne JJ).
The onus is on the prosecution to establish, on the balance of probabilities, that a confession was made voluntarily, that is, that it was not induced by the conduct of a person or persons in authority in a manner referred to above.[149]
[149] Wendo v The Queen [1963] HCA 19; (1963) 109 CLR 559.
As some emphasis was placed by the accused in this case on the significance to voluntariness of whether he understood the caution given by the police at the start of each interview, it is apt to note that, at common law, confessional statements to a police officer are not inadmissible merely because no caution was administered by the officer.[150] However, the want of a caution may be a reason for exclusion on discretionary grounds.[151]
[150] Tofilau [359] (Callinan, Heydon & Crennan JJ).
[151] Tofilau [353] (Callinan, Heydon & Crennan JJ).
As McKechnie J noted in Siddon v The State of Western Australia:[152]
The administration of a caution is not an essential precondition to voluntariness. The essential precondition is the exercise of a free choice. Cases can be found where a caution was not administered but the court was satisfied that the person who spoke did so voluntarily. To opposite effect, the administration of a caution does not automatically lead to the conclusion that a confession was voluntary. There are cases where, despite the administration of a caution, a person has not been shown to have understood their right to speak or remain silent.
[152] Siddon v The State of Western Australia [2008] WASC 100 [4].
However, as Hall J explained in The State of Western Australia v Gibson,[153] the practice of cautioning a suspect arose as a means of ensuring that a confession was voluntary.[154] His Honour noted that, in this State, pursuant to s 138(2)(b) of the Criminal Investigation Act, an arrested suspect must be given a caution, and, if it is not done, the answers may be held to be involuntary.[155] His Honour further noted that the failure to administer a caution will not necessarily lead to that conclusion, but it is a highly relevant factor to take into account.[156] Of particular relevance to the accused's submissions in this case, his Honour also said:[157]
The obligation to administer a caution to an arrested suspect will not be satisfied by merely reciting the relevant phrases in the presence of that suspect. The caution must be understood by the suspect in order for it to be relevant to the question of voluntariness.
[153] The State of Western Australia v Gibson [2014] WASC 240 (Gibson).
[154] Gibson [144].
[155] Gibson [145].
[156] Gibson [145].
[157] Gibson [146].
That appreciation of the significance of the suspect's understanding accords with the High Court's statement in R v Lee that:[158]
An accused must speak in the knowledge of a free choice to speak or remain silent in order for any admission to be classified as voluntary. (emphasis added)

Exclusion of voluntary admissions in the exercise of discretion

[158] Lee (144).

A confession that is held to have been made voluntarily may nevertheless be excluded in the exercise of a trial judge's discretion. In Swaffield, the High Court identified three categories of cases in which that might occur:
(a)where it would be unfair to the accused to admit evidence of the admission;
(b)where evidence of the admission should be excluded on public policy grounds; or
(c)where the prejudicial effect of the evidence outweighs its probative value.
The purpose of the fairness discretion is to protect the rights and privileges of the accused person; the purpose of the discretion to exclude an admission on public policy grounds is to protect the public interest; and the purpose of the discretion to reject evidence where its prejudicial effect outweighs its probative value is to guard against a miscarriage of justice.[159]
[159] Swaffield [52] (Toohey, Gaudron & Gummow JJ).
Where an admission has been made voluntarily, it is for the accused to establish, on the balance of probabilities, that evidence of the admission should be excluded on the ground of unfairness. The issue in respect of unfairness is not whether the accused has been treated unfairly, but whether the reception of the admission would be unfair to the accused in the conduct of his or her trial.[160] In determining that question, the reliability of the admission, in light of the circumstances in which it was obtained, will always be a factor to be considered, but it is not the sole factor, and there may be cases in which an otherwise reliable account will be excluded due to other factors, such as illegality or impropriety on the part of law enforcement officers.[161] In that context, the fact that no confession might have been made if the investigation had been properly conducted is a relevant factor.[162]
[160] Van der Meer v The Queen [1988] HCA 56; (1988) 35 A Crim R 232.
[161] R v Williams (1992) 8 WAR 265, 273 - 274 (Rowland & Owen JJ); The State of Western Australia v Smith [2010] WASC 279 [9] (Hall J).
[162] Duke v The Queen [1989] HCA 1; (1989) 180 CLR 508, 141 (Toohey J), referred to in R v Williams (273) (Rowland & Owen JJ).
However, as was pointed out in R v Williams:[163]
Such other factors must, of course, go to the issue of relevant unfairness, that is, unfairness of such a nature whether procedural or substantive, as might jeopardise the right of the accused to a fair trial. It would follow that in the face of a confessional statement found to be reliable, the onus on the accused of establishing the relevant unfairness is necessarily high.
[163] R v Williams (273 ‑ 274) (Rowland & Owen JJ).
Further, the following observations of Hall J in The State of Western Australia v Smith are apposite in the circumstances of this case:[164]
Questioning by police is not to be regarded as unfair merely because it is persistent, nor is there any impropriety in a police officer indicating that the truth of an answer is not accepted because it does not accord with earlier answers given by the accused or with what others have said …
Where a suspect during the course of an interview indicates a wish not to answer a question or to participate further in the interview, interviewing officers are entitled to ask further questions to clarify the accused's position.
[164] Smith [10] - [11].
In considering whether to exercise the discretion, the court is required to weigh the factors that are said to give rise to unfairness against the public interest in placing otherwise relevant and admissible evidence before the jury, so that those who commit serious offences may be brought to justice. The weighing of the public interest is relevant to the exercise of discretion whether exclusion is sought on the basis of unfairness or on the basis of public policy. The weight to be given to the public interest will vary according to 'the heinousness of the alleged crime and the reliability and unequivocalness of the alleged confessional statement'.[165]
[165] Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177, 203 (Deane J).
The separate nature of the public policy ground of discretionary exclusion was explained by Deane J in Pollard v The Queen in the following passage (referred to by Corboy J in Gandy [No 2] at [82]):[166]
[T]he principal considerations of 'high public policy' which favour exclusion of evidence procured by unlawful conduct on the part of investigating police transcend any question of unfairness to the particular accused. In their forefront is the threat which calculated disregard of the law by those empowered to enforce it represents to the legal structure of our society and the integrity of the administration of criminal justice. It is the duty of the court to be vigilant to ensure that unlawful conduct on the part of the police is not encouraged by an appearance of judicial acquiescence. In some circumstances, the discharge of that duty requires the discretionary exclusion, in the public interest, of evidence obtained by such unlawful conduct.
[166] Pollard (203).
The nature and the seriousness of any non-compliance by law enforcement officers with the law or some applicable judicially recognised standard of propriety is an important consideration. As Corboy J pointed out in Gandy [No 2],[167] there is a spectrum of such conduct that may come under consideration, as was recognised by Deane J in Pollard, and the likelihood of exclusion of a confessional statement obtained as a result of such conduct will depend on where the conduct falls in that spectrum. For instance, accidental or isolated breaches will not ordinarily result in the exclusion from evidence of a voluntary confessional statement on public policy grounds, particularly if the alleged offence is serious. On the other hand, 'a course of conduct on the part of the law enforcement officers which involved a deliberate or reckless breach of a statutory requirement imposed by the legislature to regulate police conduct in the interests of the protection of the individual and the advancement of the due administration of criminal justice'[168] would ordinarily result in exclusion on public policy grounds.
[167] Gandy [No 2] [82].
[168] Pollard (203 ‑ 204).
As will appear below, if the breach of a statutory requirement is under the Criminal Investigation Act, so as to engage the provisions of s 154(2) of that Act, the interview containing the admissions will be inadmissible, although the court has a discretion under s 155 to admit the interview if satisfied of certain conditions. Obviously, in such circumstances, the considerations referred to in the preceding paragraph that would favour discretionary exclusion of evidence on public policy grounds would also militate against the discretionary admission of that evidence under s 155.

Criminal Investigation Act

In assessing the potential application of the exclusionary provisions of the Criminal Investigation Act, it is convenient to start with the statutory power that was being exercised by the police when they interviewed the accused, and their obligations in exercising that power.

The statutory power under which the interviews were conducted

The accused was detained under s 139 of the Criminal Investigation Act. That section applies to an arrested suspect, which term is defined to mean, relevantly:
[A] person who is under arrest having been arrested under section 128 … on suspicion of having committed an offence but who has not been arrested under an arrest warrant.22
He was arrested in respect of the present offences under s 128, on suspicion of having committed a serious offence.
Section 139 goes on to provide as follows, as is relevant for present purposes:
(2)A police officer or a public officer may detain an arrested suspect in custody after the suspect is arrested for the purposes of -
…
(c)interviewing the suspect in relation to any offence that the suspect is suspected to have committed; and
(d)deciding whether or not to charge the suspect with an offence.
…
(4)The detention of an arrested suspect must be in accordance with section 140.
(5)The detention of an arrested suspect in contravention of section 140 is not unlawful if it occurs due to circumstances that are not reasonably foreseeable.
There is no issue taken by the accused in this case with the lawfulness of his detention. The relevance of s 139 is that it stipulates that one of the purposes for which such a suspect may be detained is to be interviewed in relation to any offence he is suspected to have committed. In Wright v The State of Western Australia,[169] it was held that the interview of an accused in such circumstances occurs in the purported exercise of the power of detention under s 139. Therefore, in interviewing the accused in this case, the police were acting in the purported exercise of the power of detention in respect of an arrested suspect.

The accused's rights as an arrested suspect and the obligations imposed on the police

[169] Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1 (Wright).

As an arrested suspect, the accused had certain rights specified in s 138 of the Criminal Investigation Act, which included the rights of an arrested person under s 137. The right under s 137 that is relevant for present purposes is prescribed in subsection (3) as follows:
The arrested person is entitled —
…
(d)if he or she is for any reason unable to understand or communicate in spoken English sufficiently, to be assisted in doing so by an interpreter or other qualified person.
Section 138(2) provides that:
In addition to the rights in section 137 an arrested suspect is entitled —
(a)to be informed of the offence for which he or she has been arrested and any other offences that he or she is suspected of having committed;
(b)to be cautioned before being interviewed as a suspect;
(c)to a reasonable opportunity to communicate or to attempt to communicate with a legal practitioner;
(d)if he or she is for any reason unable to understand or communicate in spoken English sufficiently, not to be interviewed until the services of an interpreter or other qualified person are available.
Section 138(3) provides that:
The officer in charge of the investigation[170] must, as soon as practicable after the arrest of an arrested suspect -
(a)inform the suspect of his or her rights under s 137(3)(c) and subsection (2)(c); and
(b)afford the suspect his or her other rights under s 137 and subsection (2).
[170] Section 12 of the CIA provides that an officer may delegate the performance of a function of the officer under the CIA, other than the power of delegation, to another officer. In such circumstances, the delegating officer must ensure that the other officer performs the duty.
The word 'inform' means tell and the word 'afford' means supply or furnish.[171] The word 'other' can only mean other than the provisions expressly referred to in s 138(3)(a),[172] and therefore includes s 138(2)(d).
[171] Wright [29] (McLure P, Buss JA agreeing).
[172] Wright [29] (McLure P, Buss JA agreeing).

The State submitted that the discussion and reference to the committee's report in the Legislative Council tended to confirm that the provisions in the Criminal Investigation Act concerning a lack of sufficiency in understanding or communicating in spoken English are concerned with ensuring that people for whom English is not their first or usual language will be assisted to understand and communicate. It was submitted this was the ordinary meaning conveyed by the text, considered in context, in particular the reference to 'an interpreter'. It was submitted that the meaning of 'other qualified person' should be construed as being affected by the reference to 'an interpreter' (that is, ejusdem generis with the latter), such that the person must be capable of assisting the suspect to understand in their usual language what is spoken by the officer in English, and to communicate to the officer in English what the suspect is saying in their usual language. In the State's submission, that was the issue that s 10 was intended to address. It was not intended to deal with a situation where a suspect's linguistic skills are limited by intellectual impairment and the assistance with communication and understanding is within the same language, namely English.
The State submitted that someone who can speak both English and the suspect's language, but who is not a qualified interpreter, may fit the description of 'other qualified person'. I would note that someone who can both speak in English and communicate by sign language, but who is not a qualified interpreter in sign language, could also fit the description of 'other qualified person' for the purposes of assisting a hearing-impaired suspect to understand and communicate with the officer.
Counsel for the accused submitted that the content of the committee report referred to in the Legislative Council and the comments of the Honourable member reflected a particular matter of concern in the context of forensic procedures, but that did not limit the ordinary meaning to be given to the provisions of s 10 or s 138(2)(d) if those provisions are capable of applying in a broader way. I respectfully agree. The extrinsic material provides some historical context for s 10, which may affect the interpretation of s 138(2)(d). However, the gamut of circumstances in which a person may lack understanding because of a lack of sufficiency in spoken English that may have been in contemplation in the drafting of s 10 and s 138(2)(d) may simply have not been discussed in committee or during debates, or mentioned in the second reading speech, which was not referred to in the hearing because there was nothing in the speech about the issues under consideration. An obvious example that goes beyond the examples referred to in the Legislative Counsel is the suspect whose only language is English, but who is not able to communicate in spoken English, in which case an interpreter or other qualified person may still be required.
I have otherwise dealt above in detail with the accused's submissions in respect of s 138(2)(d).

Voluntariness

The State submitted that the court should find on the balance of probabilities that any admissions or mixed statements by the accused in both interviews were voluntary in the relevant sense. The State submitted that it is clear from the accused's recitation of the most significant aspects of the caution back to the police, and from his manner of answering questions, that he understood that it was his choice whether to speak or be silent. In respect of the second interview, the State referred in particular to the following exchange, which is quoted in context above at [64]:
DET S/CON WADE: Exactly. All right. Whose choice is it to answer the question?
SMART: Uh, me.
The State submitted that the accused answered each of the questions in respect of the caution in his own words, and in a way that clearly demonstrated understanding of the caution in each interview.
Further, the State relied on the accused's answers at the end of each interview as evidence that he was not threatened or promised anything to induce him to answer questions, and that he had answered of his own free will.
The State submitted that the accused did not answer any questions with 'No comment' does not indicate that he did not understand he did not have to answer any questions. It referred to the fact that it was the accused who said first that he would say 'No comment' if he did not want to answer questions. It submitted that the fact he did not give such answers subsequently simply indicates he made a choice to answer questions. The State also submitted that, while the accused did not say 'No comment', he did indicate to the officers when he did not know the answer, or was not sure, and also clarified on at least two occasions that when he said he did not know, that is what he meant, and not that he did not wish to say.

Whether police acted unfairly or improperly

As to whether the police should have asked further questions about the accused's intellectual disability, the State submitted that there was no requirement that the officers make an enquiry into the accused's intellectual disability, as the accused did not indicate that it affected him in any way that might affect his ability to understand his rights or to answer questions in the interview. The State submitted that the officers asked questions that were appropriate to enable them to form an assessment of the accused's ability to comprehend and understand the interview process and the questions being asked of him. There was no actual unfairness, therefore, which arose from their failure to make further enquiries of the accused.
The State also submitted that, if the officers had made further enquiries and were given to understand the full extent of the accused's disability, as disclosed in the experts' reports, what they would have understood was that they needed to speak to the accused slowly and check his understanding. The State submitted that this is what the police did.

Whether police breached the Anunga guidelines

The State submitted that the police did not breach the Anunga guidelines. It submitted that the present case is vastly different from Gibson, noting that the difficulties referred to in Anunga concerned interviews with Aboriginal suspects whose first language is not English, which was not an issue in the present case. The State submitted that the accused's background is relevant to whether and to what extent the Anunga guidelines apply, to what extent they should have been followed by police, and whether any breach of the Anunga guidelines would render any admissions made in the interview involuntary and/or unfair.
The State submitted there was no need for an interview friend to be present, given that the accused did not have any difficulty communicating in English with the police officers, that he had notified his mother that he was in custody, and he had spoken to a lawyer prior to the commencement of the First Interview. The State submitted that, while the accused indicated he had an intellectual disability, he went on to demonstrate that he was able to understand and follow the course of the questioning.

Discretionary exclusion on the basis of unfairness

The State submitted that the accused had not established on the balance of probabilities that there is a substantial reason why the admissions should be excluded on the basis of unfairness in the exercise of the court's discretion.
The State submitted that the evidence does not establish the accused's contention that there is a 'significant possibility that answers given by the accused are unreliable because he did not properly understand what he was being asked and could not communicate his own thoughts adequately in the verbal exchanges in the two interviews or gave answers simply in order to appear agreeable'. The State submitted that:
(a)The evidence indicates that the accused did properly understand what he was being asked;
(b)There is no evidence that the accused could not communicate his own thoughts adequately in the two interviews; and
(c)An analysis of the accused's answers in the interview makes plain that he did not simply give answers to appear agreeable. The accused did not always provide positive answers to questions. He indicated that he couldn't tell police anything about the incident or the deceased being located at the house, maintained that he did not see the deceased alone on the day of the incident, responded in the negative when asked about being involved in any fights and advised police when he was not sure of the answer or couldn't remember. The accused responded to open ended as well as closed questions, indicative of his responses not simply being gratuitous concurrence. Further, the accused also disagreed with the officers on a number of occasions, including about whether he was the person depicted in some of the CCTV shown to him.[318]
[318] State's Submissions (dated 4 March 2024) [76] - [77].
In respect of other matters relied on by the accused as a basis for discretionary exclusion, the State submitted in essence that they relied on aspects of the other objections that have not been made out, as outlined above. In relation to the accused's reliance on the fact that he was not again afforded the right to speak with a lawyer prior to the second interview, the State submitted that there was no unfairness to the accused, as he was reminded of his rights, he had already spoken to a lawyer prior to the first interview, and it appears he continued to be aware of the advice he had been given. In particular, he again said that he would answer 'No comment' if he did not wish to answer a question.
In summary, the State submitted that the accused has not established on the balance of probabilities any substantial reason why the admissions in the interviews should be excluded on the basis of unfairness in the exercise of the court's discretion.

Conclusions

In the course of the reasons above, I have expressed a number of opinions and conclusions that deal with the merits of the accused's submissions in respect of many of his propositions in support of the grounds of objections. I will not repeat them here, but they are part of the process of reasoning by which I have come to the final conclusions below, which were expressed orally when I gave my decision on the application.[319]

Voluntariness

[319] Subject to some editing here to correct infelicities of language and to improve clarity.

I am satisfied on the balance of probabilities that the admissions made by the accused in both records of interview were made voluntarily.
More broadly, I am satisfied that the accused participated in the interviews voluntarily, in the sense that he answered questions in the exercise of a free choice to speak or be silent.
I have arrived at that conclusion having regard to the exchange between the interviewing officer and the accused at the start of each of the video-recorded interviews. As I outlined above, in both interviews the interviewing officer explained the accused's rights to him and gave the customary caution. At the end of each of the interviews, when asked if had participated of his own free will, the accused answered in the affirmative. On each occasion he also answered in the negative when asked questions to determine if he had been induced into participating in the interview.
In respect of the introductory exchanges, the accused gave answers indicating that he understood his rights, in particular that he did not have to answer any questions if he did not wish to do so and that he could answer some questions and not answer other questions, according to what he chose to do. Having considered the accused's answers carefully, I am satisfied that he understood his rights and was able to articulate adequately the essence of the caution and the use that could be made of his answers when he was asked about those matters specifically.
In respect of the exchange at the end of each interview, the accused gave answers that ultimately made it clear he had not been threatened or offered any inducement to take part in the interview, and that he took part in the interview of his own choice. No evidence was adduced at the hearing to suggest that the accused had been threatened or induced to participate in the interviews, or that he had perceived any threat or inducement.
However, considering the matter from the perspective of whether the accused's participation in each interview truly involved an exercise of free choice, I am satisfied having regard to the whole of the interview in each case that it did.
As I have explained above, the accused's argument to the contrary relied in part on his intellectual disability and the fact that, in the first interview, he said that he 'didn't want to do an interview'. In context, I am satisfied that was a reference to a previous position he had taken or expressed. It would seem he had taken that position at some stage after he received legal advice. Nevertheless, it was submitted on behalf of the accused that his statement indicated he had made a choice that he did not wish to do an interview, and that his choice was undermined when the interviewing officer then told him that they were still going to ask him questions, and that it was up to him whether he answered them or not. In essence, the accused asks the court to infer that the interviewing officer's statements had that impact on the accused because of the accused's intellectual disability. I am not satisfied that such an inference should be drawn, for at least two reasons.
First, the accused did not give evidence, so there is no evidence of what he understood from what the interviewing officer said at that stage. There is no evidence, therefore, to contradict the accused's statements during the interview, which indicated that he understood he did not have to answer questions, even though the police were going to ask questions. Secondly, it is not obvious that the accused intended to convey that he did not want to participate in the first interview at the time it was being conducted, rather than to convey that it was an attitude he had held earlier.
As for the accused's intellectual disability, having considered the reports of Dr Darjee and Dr Wolff, and having carefully considered his answers and the way he engaged in the police interviews, I am satisfied that the accused had a sufficient understanding of the concepts discussed during the police interviews concerning his right not to answer questions, and he had a sufficient capacity to exercise that right.
I do not accept the accused's submission that the pace at which the interviews were conducted was such as to put him at a disadvantage, at least in terms of his capacity to make a free choice whether or not to answer questions.
As I have discussed above, the accused placed emphasis on the fact that he did not answer with the words 'no comment' at any stage, even though he had said that was what he would do if he did not want to answer questions. As I have noted, the accused referred to this as an indication that he was not truly capable of exercising that right during the interview. I am not satisfied that such an inference can be drawn. The fact that the accused did not answer 'no comment' is consistent with him choosing to answer questions. It does not lead to an inference that he believed he was obliged to answer questions, when he had said specifically that he understood he did not have to answer questions.
While is not necessary to consider why the accused would choose freely to answer questions, it is notable that his account overall amounted to a denial of any involvement in the stabbing of the deceased. The fact that he may not have been alert to the possibility that various answers he gave about his whereabouts and activities might be used to challenge the truthfulness of his account, or as evidence of consciousness of guilt, does not mean that his answers were not voluntary. Persons who do not have an intellectual disability who provide an alibi that may ultimately be challenged by other evidence may also lack awareness of the potential consequences of their answers.
I note in this regard the exchange in which the accused mentioned 'mind games' and said to the police, 'Do you want to play?', which I discussed in some detail above. As I noted above, it showed an understanding of the distinction between not knowing the answer and not wanting to give a particular answer. It seemed to me from the manner in which the accused said the words, as appears on the video recording, that he was indicating to the officers that they were trying to catch him out in relation to the question of not knowing or not wanting to tell them what he knew. He pointed to the officer, and he made a gesture towards his own head with his finger. As I noted above, the impression I had was that the accused, at that point in time, was well-aware of the need to carefully consider the questions that had been put to him by the officers, and that he was mindful of the possibility that the questions he was being asked were intended to catch him out.
The impression I formed was that, while the accused's assessment of what was occurring may have been misconceived, he appreciated, nevertheless, the need to be careful in the words he chose and not to be influenced into giving an answer different to what he had already given. He maintained his position that he did not know.
As appears from the recitation of parts of the interviews above, that occurred on other occasions during both interviews when the accused was asked whether he did not know or was not sure, or whether he was simply not wanting to say. On each occasion, the accused maintained the answer he had given, usually that he did not know.
In summary I am satisfied, on the balance of probabilities, having regard to the way in which the interview was conducted and the answers given by the accused during both interviews, that he participated voluntarily.

Section 138(2)(d) of the Criminal Investigation Act

I turn next to the objection made under s 138(2)(d) of the Criminal Investigation Act.
I have reservations about the argument put on behalf of the accused that the provision applies in the circumstances of a person whose language is English and who is able to speak the language, but whose comprehension may be affected adversely by intellectual disability.
In my view, there is force in the submissions made by the State in respect of the interpretation of s 138(2)(d), which then affects the application of s 138(3)(b). It seems to me that the provision is concerned with a person's capacity to understand or communicate in spoken English sufficiently, in circumstances in which English is not their usual or preferred language, or where, if English is their first or only language, they are not able to speak it or understand it being spoken because they are hearing impaired, for instance.
However, it is not necessary for me to express any concluded view in relation to the application of the provision as submitted by the accused. That is because, in my view, it was abundantly clear during both interviews that the accused was able to understand and communicate in spoken English sufficiently. While his vocabulary may not be sophisticated, that is not an unusual circumstance for many people who come to be interviewed by the police.
When one has regard to the answers the accused gave to the questions that were asked of him, it appears to me that, overall, he understood the questions. Where there was some confusion, the police asked further questions to clarify that he understood what they were saying, and that they understood what he was saying.
For reasons I have expressed above, when dealing with the reports of Dr Darjee and Dr Wolff, I do not consider that their opinions in respect of the accused's intellectual functioning, particularly his verbal functioning, support the conclusion that he would not have a sufficient capacity to understand or communicate in spoken English in the context of an interview with the police. While both experts referred to some limitations in the accused's verbal functioning, it was tolerably clear to me from the police interviews that the accused understood the questions put to him, and he answered most questions in a coherent and logical manner. It is open to conclude that the accused did not always answer in that way, when there was some degree of confusion. However, it seems to me that such confusion is capable of being explained by either a less than attentive initial response by the accused, followed by a different answer after he had given the question proper attention, or a change of recollection by him upon a moment's reflection. Examples of that are where the accused used the words, 'Yep', 'Nup, don't know', 'Don't know' and 'I'm not sure', as a regular form of answer, in short, rather than providing narrative answers to the questions that were asked by the interviewing officer. That said, the accused did give narrative answers from time to time. Some of his answers were also preceded with what might be regarded as verbal hesitation, such as 'Um' or 'Ah'. Such verbal hesitations are not unusual within the general population.

It is also apt to note that, at times, the accused appeared to change his answer, for instance, from saying, 'Nup', to saying, 'Oh yeah'. Counsel for the accused identified such examples as being indicative, potentially, of a lack of proper comprehension by the accused. In other words, the accused lacked a proper understanding of the question. It was also submitted that such answers may indicate that the accused lacked a sufficient ability to communicate. However, that is not the impression I formed. As I have said, those sorts of apparent changes in his answers from time to time could be explained by either a less than attentive initial response, or by a change of recollection. Of course, to the extent that such aspects of the interview might have significance in determining the meaning and reliability of the accused's answer in each case, it will be for the jury to make its own assessment about the potential explanation at trial.
In short, I am not satisfied that the criteria of s 138(2)(d) are met in a way that renders the interviews inadmissible because of a failure of the police to afford the accused the right under that provision.

Unfairness

I turn then to the question of whether the video records of interview should be excluded in the exercise of discretion on the basis of unfairness.
I am not satisfied on the balance of probabilities that it would be unfair to admit the interviews into evidence. Having given the matter careful consideration, I have concluded that, while the accused's intellectual disability is a relevant matter, it does not, in the circumstances, render the acceptance into evidence of his answers in the interviews unfair. That is, I am not satisfied that admitting the evidence would result in an unfair trial. In coming to that conclusion, I accept that, where an accused has an intellectual disability and has made that known to the police, particular care must be taken to ensure that the accused understands the concepts that are being explained to him, and in the manner that questions are asked, so as not to put the accused at a disadvantage by way of confusion or undue influence. I am satisfied that the police took appropriate steps in this case to ensure the accused understood his rights and the caution, and they proceeded in a measured manner, clarifying questions and answers where the potential for confusion appeared.
I do not consider that the approach the police took in the interviews involved them taking advantage of the fact that the accused had an intellectual disability, in circumstances where he may have made a choice not to answer questions were it not for that situation.
In assessing the question of unfairness, I have also had regard to the accused's submission that he was not again reminded in the second interview of his right to legal advice. As I have said, the submission that was made in that regard initially, concerning s 138(2)(c) of the Criminal Investigation Act, was not pursued. However, as I understood the accused's argument, the alleged failure by police to afford the accused a further opportunity to speak with a lawyer was still advanced as a basis on which the court might find that the acceptance into evidence of the second interview would be unfair to the accused. The accused has the burden of satisfying the court that it would be unfair. I am not satisfied that it would be, in the circumstances of this case. The accused was told during the second interview that he always retained his rights and that he may exercise his rights at any time. The accused indicated that he understood that. As I have said, while I accept that his intellectual disability might have a bearing upon his choices in respect of matters of that kind, in particular his choice to proceed with the interview, it does not render the interview involuntary, and, in my view, it does not render the use of the interview in evidence unfair.

Interviews admissible

For the reasons I have given, I am satisfied that the accused's answers in both interviews were voluntary and that they should not be excluded on any of the grounds advanced by the accused. Therefore, the interviews will be admissible at trial.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JH
Associate to the Honourable Justice Fiannaca
24 APRIL 2025