The State of Western Australia v Spenceley

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- SPENCELEY [2018] WASC 118
CORAM:   FIANNACA J
HEARD:   12 APRIL 2018
DELIVERED          :   12 APRIL 2018
FILE NO/S:   INS 402 of 2017
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
HAZEL MARGARET SPENCELEY
Accused

Catchwords:

Admissibility of admission evidence obtained without audiovisual recording - No reasonable excuse - Section 155 Criminal Investigation Act 2006 (WA) - Admission to third party in presence of police officer

Legislation:

Criminal Investigation Act 2006 (WA)

Result:

Application allowed in part

Representation:

Counsel:

Applicant	:	Mr L Hobson
Accused	:	Ms S J Oliver & Ms K A Heslop

Solicitors:

Applicant	:	Director of Public Prosecutions (WA)
Accused	:	Justine Fisher

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

Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138
Dodd v The State of Western Australia [2014] WASCA 13
Nicholls v The Queen (2005) 219 CLR 196
Sell v The Queen (1995) 15 WAR 240
Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1

FIANNACA J:

Hazel Margaret Spenceley (the accused), is charged with the offence of manslaughter. The indictment alleges that on 20 December 2016, at Warwick, she unlawfully killed Peter Spenceley. Mr Spenceley was her husband.
The matter is listed for a trial to commence on 28 May 2018.
The State has applied for a ruling that certain admissions allegedly made by the accused to a police officer, Senior Constable Cream, are admissible on the trial of the accused. The application is necessary because there is no audiovisual recording of the alleged admissions, so that, by virtue of s 118(3) of the Criminal Investigation Act 2006 (WA) (the Act), the admissions are not admissible unless the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for the absence of an audiovisual recording of the alleged admissions, or the court decides to admit the evidence under s 155 of the Act on the basis that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.
The State submits that the court can be satisfied there is a reasonable excuse for the absence of the audiovisual recording. In the alternative, the State submits that the court should admit the evidence pursuant to s 155 of the Act.
The State has also applied for a ruling that an admission allegedly made by the accused to her son over the telephone, in the presence of Senior Constable Cream, is admissible on her trial. The State submits that s 118 does not apply to the admission, because it was not made 'to a police officer'. The accused submits to the contrary. The question of whether such an admission comes within the ambit of s 118 of the Act was raised, but not finally resolved, in Wright v The State of Western Australia.[1] For reasons I will give later, I am of the opinion, consistent with the view expressed in that case by McLure P (with whom Buss JA, as he then was, agreed), that s 118 does not apply to the admission allegedly made by the accused to her son. Evidence of that admission is admissible at common law, and there is no need for the ruling sought by the State. The accused did not apply for the exclusion of that alleged admission on any ground at common law. Nevertheless, the matter proceeded on the basis of the State's application for a ruling as to the admissibility of the evidence.
[1] Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1 [52] - [54] (McLure P, with whom Buss JA agreed), [134] - [141] (Blaxell J).
The accused objects to the admission of the evidence of Senior Constable Cream concerning the alleged admissions made by the accused in answer to questions by him and to her son.
All of the admissions the subject of the application were alleged to have been made after the accused made an unprompted admission to Senior Constable Cream when he first approached her, before she was a suspect. That admission does not come within the ambit of s 118 of the Act, and there is no challenge by the accused to the admissibility of the officer's evidence in respect of that admission.
The State's application was dealt with at a pre-trial hearing on 12 April 2018. Senior Constable Cream gave evidence at the hearing and submissions were made by the parties. At the conclusion of the hearing, I made the following orders, with reasons to follow:
1.The evidence of admissions allegedly made by the accused to Senior Constable Cream in answer to questions asked by him after the accused's initial unprompted admission is inadmissible on the trial of the accused.
2.The evidence of the admission allegedly made by the accused to her son on the telephone is admissible on the trial of the accused.
These are my reasons for making those orders.

Factual background

It is necessary to have regard to the factual circumstances in which the admissions are alleged to have been made. Those circumstances are drawn from the statements of witnesses on the prosecution brief and the evidence given by Senior Constable Cream at the hearing on 12 April 2018.
The State's case is that Mr Spenceley (the deceased), died as a result of drowning in the swimming pool at the rear of the house where he lived with the accused in Warwick. A neighbour, who had been called to the house by the accused, pulled the deceased from the pool. The deceased had been weighed down in the water by a bag containing dumbbells, which was attached to him by a rope that was tied around his waist.
An ambulance and police were called to the premises. Senior Constable Cream, who was in company with another officer, was sent there to assist paramedics. He was informed that a person had been found in the swimming pool.
Upon arriving at the address, around 8.11 pm, Senior Constable Cream entered the house and came upon the accused, who told him that she thought the paramedics were at the back of the house. The officer made his way to the rear of the house where he saw the swimming pool and noticed that paramedics were attending to the deceased, who was on the ground. They were 'working' on him. The deceased had a cardio‑pulmonary resuscitation (CPR) machine attached to him and appeared to be unresponsive, although Senior Constable Cream could not tell if he was conscious or unconscious.[2] There were a number of neighbours present.
[2] ts 20 (All transcript references are to 12 April 2018).
Senior Constable Cream noticed the nylon rope with the bag attached. It was at the side of the swimming pool, near the paramedics. He moved the rope and bag, so that it would not be a trip hazard, and he noticed that it was heavy and wet. The paramedic supervisor informed Senior Constable Cream that he had cut the rope from the deceased.[3] As Senior Constable Cream picked up the bag that was attached to the rope, a small steel dumbbell fell out. He then noticed that there was a second dumbbell inside the bag. He placed the bag and rope on the rear seat of his police vehicle. His purpose in doing so was to secure the items as evidence.
[3] ts 14, 21. The paramedic supervisor said he had cut the 'bricks' from the deceased. In context, that was a reference to cutting the rope attached to the weighty object. That appears to be the meaning Senior Constable Cream attributed to the supervisor's statement.
Senior Constable Cream observed the deceased being moved by the paramedics to an ambulance. He understood the deceased was still alive at that stage, but that he was 'in a bad way' and was being taken to hospital.[4]
[4] ts 14 - 15, 20.
Senior Constable Cream then went back into the house and, at 8.25 pm, spoke with the accused. She provided her name and her date of birth, which was 28 December 1939.
Senior Constable Cream's evidence was that, without prompting, the accused then said, 'He asked me to push him in, so I did.'[5]
[5] ts 16.
Senior Constable Cream then told another police officer to arrange for detectives to attend. He also arranged for the pool area to be declared a protected forensic area. By that stage he believed there was a reasonable suspicion that the accused may have committed a serious offence in respect of what had happened to her husband.[6] He believed that detectives would be required, given the potential nature of the offence.[7]
[6] ts 13 - 16, 19.
[7] ts 15.
Senior Constable Cream said he did not intend to talk with the accused about the matter from that time.[8] Nevertheless, he cautioned the accused and informed her of her rights. He explained in evidence that he read the caution from an insert in his notebook.[9]
[8] ts 15 - 16.
[9] ts 16.
He then assisted the accused with attempts to contact her two sons on their mobile telephone numbers. Those attempts were unsuccessful.
The accused was very distressed and disoriented.[10] She alternated between being vague and crying and then focussing on trying to contact her son.[11] Senior Constable Cream was concerned about the way the accused was behaving.[12] He thinks that during a conversation he had with her about photographs of her children, she said she was under a lot of pressure.[13]
[10] ts 16.
[11] ts 16, 25.
[12] ts 25.
[13] ts 27 - 28.
Senior Constable Cream gave evidence that he explained the caution to the accused and told her he did not intend to ask her any questions. Despite that, he subsequently questioned the accused about the incident. The evidence of those questions and answers is the subject of the first part of the State's application. The questions and answers were not audiovisually recorded. I will return later to Senior Constable Cream's explanation for the absence of such a recording.
The hearing proceeded on the basis that the evidence Senior Constable Cream would give at trial about the accused's admissions would be consistent with his evidence at the hearing. Senior Constable Cream initially gave evidence of the conversation without reference to his notes. His evidence was as follows:[14]
I asked Mrs Spenceley what happened, and she said, 'We were arguing and he had had enough.' 'We were arguing with our son', sorry, 'And then he had had enough, and then he got the rope, tied it himself, asked me to push him in, so I did.'
I said, 'How did you push him? With both hands?'
And she said, 'No. Like this.' She reached out with her right hand and pushed my left shoulder. It was a very light push, so I encouraged her to push as hard as she did. She insisted that was as hard as she had pushed him. It was a very gentle push. I would describe it as less than a five‑year‑old child.
[14] ts 17.
Senior Constable Cream said that the accused then said, unprompted:[15]
'I tried to - I got the pool thing to try and get him out, but it didn't work.'
[15] ts 17.
Senior Constable Cream was then given leave to refer to his notes, and his evidence about the conversation continued as follows:[16]
'We had an argument with our son, and he couldn't take it anymore.'
Then she mentioned she couldn't get hold of anyone. She wanted to speak to her children, particularly Stuart.
She tried to get him up with the pool thing, and by that I took that she meant the leaf thing that you reach across pools to get ‑ but I don't know what it was.
She thought he was just fooling. He was very dramatic. He could not swim.
Then I asked her who got the rope and she said, 'He got it himself.'
And I asked how long he was in. She said, 'Three or four minutes maximum. And then, when I couldn't get him out, I went and got a neighbour and he was in the pool for five or six minutes.'
And she said, 'I could not take it anymore.'
She said he could not swim. 'He panics in the water.'
[16] ts 18.
I note that in his statement Senior Constable Cream said that, apart from the reference to using the 'pool thing', the accused's statements that she was thinking that the deceased was fooling, that he was very dramatic and that he could not swim, were all unprompted, said after Senior Constable Cream had asked her if there was anyone she wanted contacted and the accused had said she could not get hold of anyone.[17] While that was not made clear in Senior Constable Cream's evidence, having regard to the approach the State has taken to those statements, which I will explain later, I will proceed on the basis that those statements were unprompted, in that they were not in response to questions from the officer.
[17] Statement of Senior Constable Cream pars 48 - 51 (prosecution brief 107).
I also note that, in cross-examination, Senior Constable Cream could not say whether the phrase 'I could not take it anymore' were words used by the accused about herself, or were words which she said the deceased had said. The phrase was not mentioned in Constable Cream's witness statement.[18]
[18] ts 29.
Senior Constable Cream made abbreviated notes of the accused's answers in his notebook. He did not record the whole of the conversation he had with the accused. He did not record the fact that he had administered the caution,[19] and he did not record his questions.
[19] ts 23. However, he said it is an oversight he often makes.
After the questioning, Senior Constable Cream continued to assist the accused in her attempt to contact family and friends. Shortly after that, detectives arrived at the house and Senior Constable Cream informed them of what the accused had told him.[20] He was instructed to take the accused to the detectives' car. He then informed the accused that she would need to leave the house and go to the detectives' vehicle. The accused then vomited, which she said was due to indigestion.[21]
[20] ts 18.
[21] ts 18.
On the way to the car, Senior Constable Cream made a last attempt to contact the accused's son, Stephen. He used the accused's mobile telephone for that purpose. On that occasion, he was successful in making contact. Senior Constable Cream informed Stephen that his father had been found in the swimming pool and that he had been conveyed to hospital, but at that stage he was still alive.[22] He then handed the telephone to the accused who spoke to her son. The brief conversation that followed is the subject of the second part of the State's application.
[22] ts 19.
According to Senior Constable Cream,[23] the accused said to her son:
I think your father is dead. He asked me to push him in the pool, so I did.
[23] ts 19.
Senior Constable Cream's evidence as to what followed is:[24]
Mrs Spenceley then tried to continue her conversation with her son, but he wasn't answering. Eventually in frustration she passed the phone to me. I informed her son Stephen that his dad was still alive and there was a possibility that he would manage to live through – live through the first aid.
[24] ts 19.
The accused was subsequently taken to the Mirrabooka Detectives' office, where she took part in an audiovisually recorded interview with the police, commencing at 1.03 am on 21 December 2016. A transcript of the interview is in the prosecution brief. The interviewing officers had information about admissions that had been made by the accused to a neighbour, Mr Bishop, who attended the scene, and to one of the paramedics, Ms Ranford.
Mr Bishop has given a statement to the police. Mr Bishop lived at the property that backed onto the accused's property. He knew the accused and the deceased. On the evening of 20 December 2016 his attention was drawn to something occurring at the accused's property as a result of screams coming from that property. When he looked over the back fence, he saw the deceased at the side of the pool. The deceased had been removed from the pool by the neighbour who was called by the accused. That young man was still in the pool.
Mr Bishop states that he went around to the accused's house. When he first went inside, he noticed that the accused was very upset. He asked her questions to find out what was happening. The accused's responses were very confusing. Mr Bishop also describes her appearance as being 'panicked and confused'. However, he does relate a number of statements made by the accused.
According to Mr Bishop, the accused said that the deceased told her to push him in the pool, and she did push him in the pool. He also states that the accused told him the deceased could not swim, 'but he would be okay'. She also told him that the deceased was fine when she last left him. Mr Bishop says that when he asked the accused what happened to the deceased, she said that he had been fighting with their son.[25]
[25] Statement of Jamie Robert Bishop dated 21 December 2016 (prosecution brief pages 6 ‑ 7, 15 ‑ 16).
Mr Bishop states that the ambulance arrived three to five minutes after he arrived at the house.
Ms Ranford, one of the paramedics who attended the scene, has also provided a statement to the police. She states that she and the paramedic with whom she was partnered on the day were in the backup ambulance that was called to the scene. The primary responder was an ambulance from Warwick.[26]
[26] Statement of Bronwyn Virginia Ranford dated 21 December 2016 (prosecution brief pages 79 ‑ 97).
Ms Ranford says that after she attended to the deceased with other paramedics at the rear of the premises, she sat with the accused in the lounge room to obtain details about the deceased. She goes on:[27]
I said, 'Tell me what happened.'
Hazel said, 'I pushed him.'
I asked, 'Into the water?'
Hazel said, 'Yes, he said push me in, so I did.'
[27] Statement of Ms Ranford pars 43 ‑ 46 (prosecution brief pages 84 ‑ 85, 93 ‑ 94).
Ms Ranford states that the accused said she did not know how long ago that was, but that the last time she saw him alive was '20 to 30 minutes ago'. Ms Ranford says that when she asked the accused if the deceased had floated to the surface, the accused said, 'I don't know, I turned and left and sat on the lawn chairs.'[28]
[28] Paragraph 52, pages 85, 94 prosecution brief.
Ms Ranford says that the accused then told her, 'We were arguing over our son, this is all his fault.'[29]
[29] Paragraph 54, page 86, 94 prosecution brief.
Ms Ranford was not aware at that stage that the deceased had been weighed down. When she suggested to the accused that the deceased could have been swimming, the accused said, 'I don't think he was swimming, he had weights around his waist.'
It is not clear on the evidence in the prosecution brief whether the officers who subsequently interviewed the accused at the Mirrabooka Detectives' office were aware of all of the statements allegedly made by the accused to Mr Bishop and Ms Ranford, but it appears they were aware of at least some of the admissions.
During that interview, when asked if there was anything she would like to say in relation to what had happened, the accused said:[30]
No. [indistinct] Just stupid. I didn't know what he had done to himself. [indistinct] weighted himself down …
He was, he, he, he was just being over emotional because of what's being going on in our life, I think.
She went on to explain that she was referring to her son Stuart being on drugs.
[30] Prosecution brief page 276.
When she was reminded later that she had said the deceased was 'weighted down', the accused said, 'I think he was.' She went on to say:[31]
I don't know fully, but I think that's what he'd done to himself because he just wanted to [indistinct], he said I've had enough.
[31] Prosecution brief page 278.
Later still,[32] the accused said that what had happened to the deceased was an accident, and that:
He, he, he didn't really think he was gonna kill himself. He was just crying out, I think, and I thought he'd just splutter, splutter, splutter 'cause he can't swim.
[32] Prosecution brief page 279.
The accused was then informed that one of her neighbours had said that she told them the deceased was saying 'push me in the pool'. She responded:
Probably. Because he was in a silly mood.

The accused subsequently went on to say:[33]
If I thought Pete was genuinely trying to get me to push him in the pool to do something stupid, I wouldn't have helped him out. If I thought that he was acting stupid and he was gonna just kick around and try and make me feel guilty for something, but no.
[33] Prosecution brief page 282.
When asked directly whether she pushed the deceased in the pool, the accused said:[34]
Not that I remember. I mean, he was sitting on the edge of the pool right next to the steps.
[34] Prosecution brief page 282.
She went on to say that if he fell in the pool, he could not swim. The accused later went on to say[35] that she did not know how the deceased had tied himself up or 'whatever he did to himself'. She said she did not know where and how that happened.
[35] Prosecution brief page 288.
At this stage there is no challenge by the accused to the admissibility of the evidence concerning her admissions to Mr Bishop and Ms Ranford, or the admissibility of the record of interview.

Additional evidence at the hearing

Senior Constable Cream was questioned about the circumstances in which he came to question the accused and the fact it was not audiovisually recorded.
He said in his evidence-in-chief that there was no video recording machine available when he had the conversation with the accused after she made the initial unprompted admission.[36] In what appeared to be an explanation for not obtaining such equipment, although not explicitly put in those terms, he said his interest was 'more from a coronial inquiry perspective, because in a small percentage of cases when detectives attend, the matter is handed back to uniformed officers to complete the coronial inquiry.[37]
[36] ts 19.
[37] ts 19.
In cross-examination, he said he has been a police officer for 36 years and a Senior Constable for 20 years. He said he had worked in a number of roles and agreed he was aware of the need to record any interview with a suspect in the case of serious offences, although he said: 'I think that says "where practical"'. As will appear in my discussion of the law, that is not an accurate reflection of s 118. It would be a dangerous approach, in terms of jeopardising the admissibility of any evidence of admissions, for an officer to make the decision whether to use or obtain audiovisual recording equipment to record an interview simply on the basis of whether it is 'practical'.
Senior Constable Cream agreed that he knew the bag that had been cut from the deceased and its contents were likely to be important evidence in the investigation, and that is why he secured them.
He agreed that he did not make a note of the initial unprompted admission by the accused, even though it was a significant statement that formed the basis, together with the other information he had, for his suspicion that an offence had been committed.[38]
[38] ts 23.
He agreed that in his statement, which he typed on the night and edited later, he said that the words used by the accused when she made the unprompted admission were, 'He asked, so I pushed him.'[39]
[39] ts 23.
When asked if he agreed that was different to what he had said in his evidence a short time earlier, he said could not recall exactly what he had said in his evidence.[40] He said that when he made his statement, some hours after his conversation with the accused, he had relied on his memory to record what the accused said in that initial admission.
[40] ts 23.
When reminded that he had said he did not have any intention of asking the accused any questions after he cautioned her, Senior Constable Cream said:[41]
Correct. Or I intended to limit my questions regarding, because the ‑ it wasn't going to be my inquiry.
[41] ts 24.
He agreed that part of the reason he did not want to talk to the accused about the matter was because it was a serious offence, and also he had concerns about the way she was behaving.[42]
[42] ts 26.
He agreed there was no urgency in asking the accused about what had happened.[43] He also agreed that, although he had an interest in obtaining information from the perspective of a coronial inquiry, detectives would submit their own report. He agreed that there would be no reason for him to ask the accused any questions at that time.[44] Indeed, when I sought clarification, he said:[45]
I am totally agreeing that those additional questions need not have been asked.
[43] ts 26.
[44] ts 26.
[45] ts 27.
He went on to say, 'Other than it was part of what was going on at that particular time', but that is unhelpful. The fact that it happened is not an explanation. He earlier described the circumstances as 'an organic process'.[46] Again, it is not a helpful description. It would appear to be an aphorism for a developing or evolving situation, but the only reason it developed or evolved was because of decisions taken by the officer, not the other way around. In re‑examination, he suggested that his decision to ask questions was due to the fact that 'just nothing seemed to be going right for her' because the accused was not able to contact people.[47] Why he would think it would assist the accused, in terms of making things go right, by asking questions that could result in the accused implicating herself was not explained.
[46] ts 26.
[47] ts 29.
Senior Constable Cream agreed that, at the time he was questioning the accused, he knew 'it was likely that she might say something that would implicate her in an offence'.[48]
[48] ts 27.
He said that, when he was having the general conversation with the accused, she had mentioned that she was 'under a lot of pressure, caused by all the surrounding circumstances leading up to this'.[49]
[49] ts 27.
As for the availability of video recording equipment, Senior Constable Cream said that the mobile telephone he had did not have the ability to record video.[50] He said that, to the best of his knowledge, there was not a camera in the police vehicle in which he had arrived, but he did not check on this occasion. He said that 50 to 70% of police vehicles are meant to carry a video camera.[51]
[50] ts 26.
[51] ts 30.
Finally, Senior Constable Cream said that, as detectives were going to deal with the inquiry, it would have been inappropriate for him to even consider getting a video camera and starting a recording.[52]
[52] ts 30.

Relevant law

At common law, statements by an accused amounting to admissions against interest, in that they implicate the accused directly or indirectly in the commission of the offence with which they are charged, are prima facie admissible in the trial of the accused for that offence.
However, if the admission was made to a police officer at a time when the accused was a suspect for the offence, and the offence is one that cannot be dealt with by a court of summary jurisdiction,[53] then the admissibility of the admission at the trial of the accused is governed by the provisions of the Act. Section 118 of the Act provides relevantly:
[53] Criminal Investigation Act 2006 (WA) s 118(2)(b).
(3)On the trial of the suspect for the offence, evidence of any admission by the suspect is not admissible unless ‑
(a)the evidence is an audiovisual recording of the admission; or
(b)in the absence of an audiovisual recording of the admission -
(i)the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for the absence; or
(ii)the court decides otherwise under section 155.
(4)Subsection (3) does not apply to an admission by a person made before there were reasonable grounds to suspect that he or she had committed the offence.
Section 115 defines 'suspect' to mean:
A person suspected of having committed an offence, whether or not he or she has been charged with the offence.
'Admission' is defined in s 118(1) to mean, relevantly:
An admission made by a suspect to a police officer … whether the admission is by spoken words or by acts or otherwise.
Section 118(1) also provides an inclusive definition for what is a 'reasonable excuse', for the absence of an audiovisual recording of an admission. Having regard to the evidence and the State's submissions, the only paragraphs of relevance are that:
(a)the admission was made when it was not practicable to make an audiovisual recording of it;
(b)equipment to make an audiovisual recording of the admission could not be obtained while it was reasonable to detain the suspect.
As I have noted, under s 118(3), if there is no audiovisual recording of the admission in question, and the prosecution does not prove there is a reasonable excuse for the absence of an audiovisual recording, the court may still decide, under s 155 of the Act, that the admission is admissible on the trial of the accused.
Section 155(2) provides that, although evidence may be inadmissible, the court may nevertheless decide to admit the evidence 'if it is satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.' Subsection (3) provides that, in making a decision under subsection (2), the court must take into account the following matters:
(a)any objection to the evidence being admitted by the person against whom the evidence may be given;
(b)the seriousness of the offence in respect of which the evidence is relevant;
(c)the seriousness of any contravention of this Act in obtaining the evidence;
(d)whether any contravention of this Act in obtaining the evidence ‑
(i)was intentional or reckless; or
(ii)arose from an honest and reasonable mistake of fact;
(e)the probative value of the evidence;
(f)any other matter the court thinks fit.
Section 155(4) provides that the probative value of the evidence does not by itself justify its admission.
In my opinion, the applicability of paras (c) and (d) of s 155(3) in the discretionary exercise required by s 155(2) is questionable where s 155 is engaged pursuant to s 118 of the Act.
Those paragraphs refer to 'any contravention of this Act in obtaining the evidence'. That language is congruous with the provisions of s 154(2), which render inadmissible any evidence obtained in the purported exercise of a power by a police officer under the Act, where a requirement of the Act in relation to exercising the power is contravened. It is obvious that paras (c) and (d) of s 155(3) are concerned with the characteristics of such a contravention.
However, the language of paras (c) and (d) is less congruous with the provisions of s 118. The Act does not specifically require a police officer to make an audiovisual recording of questioning of a suspect that elicits admissions.[54] Rather, by s 118, it makes evidence of any such admission prima facie inadmissible if it is not an audiovisual recording of the admission. In doing so, it achieves the underlying policy objective that police interviews with suspects should be recorded.[55]
[54] Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1, [129] (Blaxell J).
[55] Wright v The State of Western Australia [129] (Blaxell J).
There are obligations placed on police officers under the Act, contravention of which may affect the admissibility of evidence of admissions made by an accused and would engage the provisions of paras (c) and (d) of s 155(3).[56] For instance, by s 138 of the Act, police are required to caution an arrested suspect before interviewing the suspect and must afford the suspect an opportunity to communicate or attempt to communicate with a legal practitioner. No positive obligation of that kind is created in respect of the audiovisual recording of an interview.
[56] See Wright v The State of Western Australia [15]-[23] (McLure P, Buss JA agreeing), [165]-[174] (Blaxell J).
If s 118 is to be construed as creating a requirement 'in obtaining the evidence', contravention of which engages paras (c) and (d) of s 155(3), it is by implication from the consequences of the absence of an audiovisual recording for which there is no reasonable excuse. While such implication may be possible,[57] it would not sit comfortably, in my opinion, with the overall scheme of the Act, in which provisions such as s 138 impose specific obligations upon police in obtaining evidence.
[57] See Taylor v Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 [37] - [39] (French CJ, Crennan and Bell JJ).
An alternative approach may be to construe the words 'contravention of the Act' in s 155(3)(c) and (d) to include a contravention of the underlying policy objective of the Act which the provisions of s 118 are intended to achieve. In my opinion, it would be difficult to reconcile such a construction with the legislative intention, given that the language and context of the paragraphs appear to be aligned with the provisions of s 154(2), which are concerned with contravention of requirements in relation to the exercise of powers under the Act.
In my opinion, it does not follow from the fact that s 118 invokes s 155 as a means by which evidence may be admitted, that all aspects of s 155(3) must be applicable in the exercise of the discretion under s 155(2). That said, even if paras (c) and (d) did not apply, considerations of the kind with which they are concerned, if relevant, could be taken into account under para (f).
However, in Dodd v The State of Western Australia[58] the Court of Appeal proceeded on the basis that paragraphs (c) and (d) of s 155(3) did apply in respect of evidence that would otherwise be inadmissible because of s 118. It does not appear that the reservations I have expressed were raised or considered in that case, but I am bound by the assumption in that case that all of the matters listed in s 155(3) are mandatory requirements that must be taken into account when making a decision under s 155(2) in respect of evidence otherwise inadmissible because of s 118, and I will proceed accordingly. It seems to me that the relevant contravention of the Act must be assumed to be the failure by the interviewing officer to make an audiovisual recording of the admissions.
[58] Dodd v The State of Western Australia [2014] WASCA 13 [258] - [259] (Mazza JA; Buss JA (as he then was) and Newnes JA agreeing with these reasons and the disposition in respect of the relevant ground).

Consideration of the submissions

It is first necessary to consider, in respect of each aspect of the evidence of admissions, whether the provisions of s 118 are enlivened.

The initial unprompted admission

The first statement made by the accused to Senior Constable Cream about what had happened, namely, 'He asked me to push him in, so I did', was not prompted by anything said by the officer, and was made before he had any reasonable grounds to suspect that the accused had committed any offence. The defence accepts that to be the case and that, prima facie, the statement is admissible. The concession is properly made.
The statement is capable of constituting an admission against interest, in that the obvious implication is that the accused pushed the deceased into the swimming pool while he was encumbered by the weights in the bag, which was found attached to him when he was removed from the pool. On the assumption that the cause of death was drowning, it would be open for a jury to conclude that the act of pushing the deceased, admitted by the accused, was causally connected to the deceased's death. As the admission was made before the accused was a suspect, s 118 of the Act has no application.

Admissions made in the course of questioning

However, the balance of the statements made by the accused to Senior Constable Cream concerning the circumstances in which the deceased came to be in the swimming pool, apart from two unprompted statements, were made in response to questions asked by Senior Constable Cream at a time after the accused was a suspect and Senior Constable Cream had given her the police caution.
As for the two unprompted statements in the middle of the series of questions and answers, the State properly acknowledges that they must be considered in the context that Senior Constable Cream had been questioning the accused, and those questions had prompted admissions. In those circumstances, the State does not seek a ruling that those unprompted statements are admissible apart from the admissions made in answers to questions. Therefore, the admissibility of all the statements made by the accused to Senior Constable Cream after he had cautioned her will be determined on the same basis.

Whether there is a reasonable excuse

The State submits that there is a reasonable excuse for the absence of an audiovisual recording of the accused's admissions in response to Senior Constable Cream's questions because he did not have audiovisual recording equipment available and it was reasonable for him to seek clarification of the accused's unprompted admission for the purpose he suggested, namely for a report to the Coroner, in the event that became necessary.
In considering whether the State has proved on the balance of probabilities that there is a reasonable excuse for the absence of an audiovisual recording of the admissions to Senior Constable Cream, I have regard to the fact that the definition of the expression 'reasonable excuse' is not in terms or effect exclusive, and there may be a reasonable excuse that does not fall within any of the paragraphs of the definition.[59] Nevertheless, it is convenient to commence with a consideration of paras (a) and (b) of the definition.[60]
[59] Wright v The State of Western Australia [55] (McLure P), [142] ‑ [147] (Blaxell J), referring to Nicholls v The Queen (2005) 219 CLR 196 [3], [106], [156], [218], [342], which dealt with the equivalent provision in the previous s 570D(4) of the Criminal Code (WA).
[60] See [47] above.
Although the officer did not have immediately available a video camera or other device that could make an audiovisual recording, he could not say whether or not there was a camera in the police vehicle. He did not think there was, but he did not check. I accept his evidence that not all police vehicles are equipped with a camera, but the onus is on the State to establish on the balance of probabilities that in fact it was impracticable to make an audiovisual recording.
In light of the circumstances known to Senior Constable Cream and the initial unprompted statement from the accused, it was a reasonable expectation that his questions may elicit admissions by the accused against her interests. Senior Constable Cream admitted that was the case.
The question under paras (a) of the definition of 'reasonable excuse' is whether the admission was made 'when it was not practicable to make an audiovisual recording' (emphasis added). The practicability of making an audiovisual recording at a particular time cannot depend on the police officer's decision to ask questions when recording equipment is not available. That would defeat the underlying policy objective of the legislation. One must ask why it was necessary to proceed with questions at that point in time. Senior Constable Cream was not able to offer any reasonable explanation.
Examples in previous cases, where it was accepted that it was not practicable to make an audiovisual recording of admissions, have included situations in which the police have attended a scene without knowing precisely what has happened, and there has been some urgency in establishing the basic facts in order to determine what areas or items of evidence may need to be secured or preserved to maintain the integrity of a scene or physical evidence. There was no such urgency in this case. Senior Constable Cream had already ascertained the basic facts and had secured items of relevance and declared a protected forensic area. He did not suggest in evidence that there was any forensic purpose for his questioning.
Another example where it has been held that there was a reasonable excuse for the absence of an audiovisual recording of an admission by a suspect was where the police had secured entry to premises to arrest the suspect, but with no intention of questioning him at that stage, and the suspect spontaneously made a statement capable of being construed as an admission in respect of the offence for which he was being arrested.[61] Again, the circumstances of this case are different. The accused made a spontaneous incriminating statement to Senior Constable Cream before she was a suspect, but the admissions that were subsequently made were in response to questioning by him, after he had made the choice to proceed with that questioning believing the accused was a suspect.
[61] Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1.

Obviously, the examples to which I have referred from previous cases are not exhaustive. However, nothing emerged in this case that could be said to have rendered an audiovisual recording impracticable.
Ultimately, the only explanation Senior Constable Cream gave for the questioning is that he thought he should get clarification of the accused's unprompted admission because there was a possibility he would have to prepare a report for the Coroner if the matter was handed back by detectives to uniformed police in due course. With respect, the explanation was specious and inconsistent with his evidence that he did not intend to ask the accused any questions after he had arranged for detectives to attend, and that he had told the accused that was the case.
It is, with respect, extraordinary that he would consider it inappropriate to obtain video recording equipment to record an interview, because it was going to be the detectives' inquiry, yet consider it appropriate to ask questions that would be the subject of that very inquiry and could result in incriminating answers.
There was also nothing about the accused's physical or emotional condition when Senior Constable Cream was speaking with her that created any imperative to question her before detectives arrived. Indeed, the officer's observation that the accused was at times vague and crying, although at other times she was focussed, tends to highlight the importance of having an audiovisual record for any tribunal of fact to make a proper assessment of her answers.
In any event, Senior Constable Cream agreed there was no urgent need to question the accused, and, in particular, it was not necessary for him to do so at that time.
As for para (b) of the definition of 'reasonable excuse', accepting that Senior Constable Cream did not have equipment to make an audiovisual recording, the evidence does not support the conclusion that such equipment could not be obtained while it was reasonable to detain the accused. In fact, a video recorded interview did subsequently take place at the Mirrabooka Detectives' office while it was still reasonable to detain the accused.
In short, I am not satisfied that there was any good reason for Senior Constable Cream to question the accused without making an audiovisual recording of the interview. He is a very experienced officer who was well aware of the requirement to make such a recording if any admissions were to be admissible in evidence.
I am not satisfied there is a reasonable excuse for the absence of an audiovisual recording of the admissions made to Senior Constable Cream after the initial unprompted statement by the accused. Accordingly, the evidence of those admissions is inadmissible on any trial of the accused for the offence with which she is charged, unless I decide otherwise under s 155 of the Act.

Whether the evidence should be admitted under s 155(3)

Apart from the matter I discussed earlier concerning s 155(3)(c) and (d), there is no dispute about the legal principles that apply in making a decision under s 155. The discretion to be exercised under s 155(2) involves the weighing of competing factors, some of which may point to the desirability of admitting the evidence, while others may point to the undesirability of that course. The onus is on the State to satisfy the court that the desirability of admitting the evidence outweighs the undesirability of doing so.
I turn to the mandatory factors under s 155(3).
The accused objects to the admission of the evidence. The accused submits that the circumstances of this case are precisely the kind that call for strict adherence to the requirement that the admissions be audiovisually recorded, for reasons that emerge in considering the other factors.
The offence in respect of which the evidence is relevant is very serious, involving as it does the taking of human life. The allegation is that the accused contributed to her husband's death by pushing him into the swimming pool. It is not alleged that she intended to cause his death, but her alleged criminal conduct involved a high degree of moral culpability, given she was aware her husband could not swim and that he was encumbered by a weight. It is a factor that weighs in favour of admission of the evidence.
There are two aspects to the consideration of the probative value of the evidence. First, the capacity of the evidence to prove the accused's guilty of the offence if accepted. Secondly, the weight that can be attached to the evidence, having regard to issues of credibility and reliability.
As to the first matter, if accepted, the evidence contains admissions by the accused that the deceased panics when he is in the water, that he had weights attached to him and that he was in the pool for between three to four minutes before she went to get help. Such evidence is potentially highly probative of the offence in that it would establish that the accused's contribution to her husband's death was not only by way of the physical act of pushing him, but also by her failure to render assistance to him.
Counsel for the accused submitted that the probative value of the evidence is diminished because there is other evidence that will be before the jury concerning admissions made by the accused, which is similar in content to the evidence of Senior Constable Cream. That is a reference in particular to the evidence of Ms Ranford. In my opinion, the submission is without merit. The inherent probative value of particular evidence does not reduce because there is other evidence with similar probative value. Indeed, the fact that similar evidence comes from different sources might be thought to enhance the probative value in terms of the reliability of the evidence.
That brings me to the second aspect of probative value. While the evidence taken at its highest may be significant in proving the offence, if the evidence lacks reliability, its probative value is self-evidently reduced.
There is no suggestion that Senior Constable Cream was not honest in his evidence about what was said by the accused. I am satisfied that he was endeavouring to tell the truth. However, as counsel for the accused submitted, there were aspects of Senior Constable Cream's evidence that cast doubt on its reliability.
First, the officer had difficulty remembering at least one aspect of his evidence‑in‑chief when cross‑examined, after a relatively short period of time in the witness box. While one should make allowance for the fact that giving evidence may be stressful and the course of evidence is dictated by the questioning, which is different from circumstances in which he was doing the questioning, the failure to recall something within a relatively short time is a relevant consideration. That aspect of the evidence concerned the accused's initial unprompted admission, not the conversation he subsequently had with her, but it is instructive in another respect.
The officer's recollection of the words used by the accused when he first approached her was different to what he had recalled in his written statement, which was, 'He asked, so I pushed him in.' Arguably, the gist of the statement is the same. That may also be the case with the answers to questions which followed, as recalled by Senior Constable Cream. However, the specific words used in those answers may be relevant to the jury's assessment of the alleged admissions. There is at least a question over the reliability of the officer's account in that respect.
Secondly, Senior Constable Cream needed (understandably) to refer to his notes to recall the details of his conversation with the accused, but those notes, although made contemporaneously with the conversation, were not a complete record of the conversation. They did not record his questions, did not record all of the answers, and to the extent that answers or statements were recorded, the notes were in abbreviated form. In my opinion, that further detracts from the confidence one could have in the reliability of the officer's account of the words spoken.
Turning to the factors concerning the nature of the contravention (in failing to make an audiovisual recording), any assessment of the seriousness of the contravention must have regard to the underlying policy objective and the extent to which it has been undermined.
One aspect of that objective is to prevent the fabrication of evidence of confessions allegedly made when accused are alone with police officers. There is no suggestion that the evidence of admissions made by the accused during questioning by Senior Constable Cream has been fabricated.
However, another important aspect of the objective is to ensure that a tribunal of fact has an accurate record of what was said and the circumstances in which alleged admissions have been made. That was particularly important in this case, given a number of factors. They include the accused's emotional state, her apparent state of confusion, described by Mr Bishop, and her vagueness, described by Senior Constable Cream. This is precisely the sort of case in which an audiovisual recording would enable a tribunal of fact to make a proper assessment of the answers given by the accused and the weight that should be given to them. It would also have provided an accurate record of the conversation in circumstances in which the accuracy of the precise words used has been called into question, for reasons I have already discussed. The absence of an audiovisual recording may well result in unfairness to the accused upon her trial.
For those reasons, I consider the contravention to be of a serious kind.
Further, I am of the opinion that Senior Constable Cream was reckless in his failure to ensure that an audiovisual recording was made of any questioning by him of the accused. The State submitted that I could find he acted from an honest and reasonable mistake of fact. There is no evidence of that. Senior Constable Cream did not say that he honestly believed it was necessary or appropriate for him to question the accused at that time without making an audiovisual recording. His evidence was that he had decided he would not ask the accused any questions once the detectives were called, and he told her so. It would appear that, in spite of that intention, he proceeded to question the accused without thinking about the consequences of not making an audiovisual recording.
I am not satisfied, therefore, that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.

Conclusion as to admissions made to Senior Constable Cream after caution

Consequently, the evidence of the admissions made in answer to questions by Senior Constable Cream, and the two unprompted statements in the midst of the questioning, will not be admitted on the trial of the accused.

Admission made by the accused on the telephone to her son

In Wright v The State of Western Australia,[62] the appellant, who was charged with murder and sexual penetration without consent, had made a statement to the effect of 'I fucked up' when police entered the premises where he was located in order to arrest him. He appeared to make the statement to others who were in the room, but in the presence of the police. The State relied on the statement as an admission. At trial, the appellant had sought to have evidence of the statement excluded on the basis that s 118 applied to it, there was no audiovisual recording of the statement and there was no reasonable excuse for the absence of such a recording. It appears that no issue was taken by the State with the application of s 118, and the matter was dealt with on the basis of whether there was a reasonable excuse for the absence of an audiovisual recording. The trial judge was satisfied there was a reasonable excuse and admitted the evidence.[63] The appellant appealed against his conviction, and one of the grounds challenged that ruling.
[62] Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1.
[63] Wright v The State of Western Australia [104].
On appeal, McLure P, with whom Buss JA agreed, ultimately dealt with that ground of appeal on the assumption that the admission was not admissible because it was not recorded, so that the question to be determined was whether the trial judge erred in finding there was a reasonable excuse for the absence of an audiovisual recording.[64] However, her Honour analysed the provisions of s 118, in particular the requirement that an admission be 'to a police officer'. Having noted that, unlike the earlier similar provision in the Criminal Code, s 118 did not refer to 'an admission made in an interview', her Honour said:[65]
However, the definition of admission remains as one made by 'a suspect to a police officer'. The requirement must place some limitation on the scope of the exclusion. In its context, the meaning of 'to' is expressing motion or direction towards someone; that is the words or conduct was directed to a police officer.
It is apparent from the heading and content of pt 11 in general that its primary focus is on the recording of an interview between a suspect and police which is invariably conducted in private with the attendant risk of police verballing a suspect. On the other hand, whether or not a suspect made an admission 'to a police officer' involves questions of degree and that expression should be given its broadest legitimate scope consistent with the statutory language and purpose of the Act.
In this case the evidence of all persons present in the room was consistent, namely that the statements made by the appellant were directed at his cousin both physically and as a matter of intention; the appellant was explaining to his cousin why he was wanted by police. A statement made by a suspect to a third party in the presence of police would not in my view fall within the mischief which s 118 is intended to address.
[64] Wright v The State of Western Australia [54].
[65] Wright v The State of Western Australia [52] - [54].
Blaxell J came to a different conclusion on the question of construction. His Honour said:[66]
The word 'to' is a preposition which varies in meaning depending upon the context in which it appears. In the context of s 118, I consider it to mean an admission made by a suspect which is simply heard or observed by a police officer. For the reasons which follow, I also consider it unnecessary that the admission be directed towards a police officer, or that the suspect intend that it be heard or seen by a police officer.
[66] Wright v The State of Western Australia [136].
The comments on this issue in Wright were obiter dicta, as the ground to which they related was determined on the basis of the correctness of the trial judge's decision that there was a reasonable excuse for the absence of an audiovisual recording. In those circumstances, counsel for the accused submitted I should prefer the construction adopted by Blaxell J, essentially for the reasons given by his Honour.
His Honour considered that the construction he favoured was consistent with the text of the Act and the legislative history, which, in his Honour's view, pointed 'towards the purpose of encouraging the audiovisual recording of admissions, and of expanding (not restricting) the circumstances in which such recordings should occur'.[67] His Honour was of the view that a narrower construction limiting s 118 to admissions made directly to a police officer would leave open 'considerable potential for abuse', as 'all that would be necessary to avoid s 118 would be evidence that the admission was made to some third person or was not directed towards any person at all.'[68]
[67] Wright v The State of Western Australia [137], referring to Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138 [56].
[68] Wright v The State of Western Australia [138].
His Honour also thought that the construction he favoured was consistent with the part of the definition which referred to a suspect's 'acts or otherwise'. His Honour found it difficult to conceive in what way a physical act amounting to an admission can be made 'to' a police officer in the narrower sense.[69] In my respectful opinion, obvious examples would be nodding of the head and the use of gestures to demonstrate the manner in which something may have been done (as happened in the present case, when the accused demonstrated the pushing). It does not seem to me, with respect, that the incorporation of 'acts or otherwise' in the definition militates against attributing to the preposition 'to' the quality of motion or direction towards someone.
[69] Wright v The State of Western Australia [139].
As for the legislative history, both McLure P and Blaxell J recognised in Wright that the underlying policy was to minimise the opportunities for police 'verballing'.[70] It was also intended to minimise the potential for police misconduct in obtaining confessions.[71] Although s 118 is not limited to police interviews with suspects, the essential purpose of video recording a police interview was to corroborate police evidence of admissions made by the accused in the interview.[72] As McLure P pointed out, such interviews invariably occurred in private.
[70] Wright v The State of Western Australia [53] (McLure P); [137] (Blaxell J).
[71] See the discussion of relevant authorities before the enactment of relevant legislation in this State in Sell v The Queen (1995) 15 WAR 240, 247 - 251 (Malcolm CJ).
[72] Sell v The Queen, 250 (Malcolm CJ).
When an admission is alleged to have been made to a third party in the presence or hearing of a police officer, the risk of 'verballing' is minimised because either the evidence of any admission can be corroborated by the third party, or that party can rebut the evidence of the police officer that the admission was made, if it is not true. There is available the opportunity to test the veracity and reliability of the evidence.
If the admission was in fact made to a third party (over the telephone or otherwise), the approach adopted by Blaxell J and pressed by the accused's counsel in this case would render inadmissible the evidence of the third party in respect of the admission, unless there was an audiovisual recording of it, irrespective of whether the police officer gave evidence. In my opinion, such an outcome could not have been intended by the legislature, given the mischief that s 118 was intended to address.
Counsel for the accused submitted that the section should be construed as applying only if the evidence is to be given by a police officer who was present or in hearing when the admission is alleged to have been made to a third party. In effect, the argument sought to attribute to an admission in those circumstances a dual character: at the same time as being an admission to the third party, it is an admission to the police officer (not because it is being directed to the officer, but in the sense explained by Blaxell J). Counsel submitted that, in its character as an admission to the police officer, s 118 would apply, but only if the evidence was to be given by the police officer. On the other hand, in its character as an admission to the third party, s 118 would not apply if the evidence was to be given by that party. With respect, the argument is based on a metaphysical distinction that is elusive and fundamentally unsound. The accused's statement, in such circumstances, is one and the same admission. Its quality as an admission to the third party does not change because a police officer was present or overheard it, or according to the identity of the witness who gives evidence about it.
In any event, there is nothing in the language or context of s 118 that permits such a distinction to be drawn according to whether the evidence is to be given by a police officer or a third party.
In my opinion, the view expressed by McLure P in Wright should be preferred. As her Honour said, the issue of whether an admission was made 'to a police officer' involves questions of degree and the expression should be given its broadest legitimate scope consistent with the statutory language and purpose of the Act. If a third party is present during a police interview, and during the course of questioning by the police, the accused directs a particular statement to the third party, it might readily be accepted that it was also being made to the police officer, and s 118 would apply. It is not necessary to consider other theoretical possibilities. It is sufficient for present purposes to say that, if the admission is made to a third party in the presence of a police officer or within hearing of the police officer in circumstances such as the present, when the officer has concluded asking questions and is simply assisting the accused to contact her son, the admission is not made 'to a police officer' and s 118 does not apply.

The particular circumstances of this case, as related by Senior Constable Cream, are especially removed from the ordinary meaning of 'made by a suspect to a police officer'. His evidence was that after he had finished asking the accused questions, detectives arrived and he told them what the accused had said. He was told to place the accused in a police vehicle. Before leaving the house the accused vomited. Earlier she had wanted to contact her sons, but the attempts had been unsuccessful. As they made their way to the car, Senior Constable Cream made a final attempt to contact Stephen using the accused's mobile telephone and was successful. He gave a brief explanation to Stephen, as outlined earlier, and then handed the telephone to the accused. After she made an admission to her son, she became frustrated and handed the telephone back to the officer because her son was not responding. On that evidence, her statements on the telephone were directed to her son, and she was expecting a response from him.
Had it been necessary to consider whether there was a reasonable excuse for the absence of an audiovisual recording, if s 118 had applied, I would have been satisfied on the balance of probabilities that there was a reasonable excuse, in that the questioning had concluded and it would not ordinarily be expected that a police officer would video record a suspect's telephone contact with a family member or friend. The fact that he did not have available to him an audiovisual recording device in that context is a factor weighing in favour of finding there was a reasonable excuse. That is particularly so, given that it appears the telephone call was made as they were going to the police car, and there was no certainty that contact would be made, given the earlier failed attempts.
Secondly, by the time Senior Constable Cream handed the telephone to the accused, he had already provided a brief explanation about the deceased's circumstances to her son. Although he did not tell Stephen what the accused had said about pushing the deceased, I am satisfied that the accused's admission to her son was not something Senior Constable Cream should have anticipated.
Had it been necessary to consider the factors in s 155, I would have been satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.
In the context of this evidence, I consider that the evidence has significant probative value, both in itself and as support for the reliability of other evidence of similar admissions made to other witnesses. Although I have expressed concern about the reliability of the specifics of the interview Senior Constable Cream conducted with the accused, the admission she allegedly made to her son was in simple terms and consistent with the gravamen of admissions she had made to Mr Bishop, Ms Ranford and Senior Constable Cream. I do not consider that concern about the reliability of Senior Constable Cream's evidence in respect of the interview detracts from the probative value of this particular evidence.
Secondly, if there was a contravention in the failure to record the admission to Stephen, I would not regard the contravention to be intentional or reckless, for the reasons I have already given in relation to there being a reasonable excuse. In context, it would not be a serious contravention.
Finally, the seriousness of the offence would favour the admission of the evidence.

Conclusion as to admission made by the accused to her son

Accordingly, I rule that the evidence to be given by Senior Constable Cream about the accused's admission to her son, Stephen, is admissible on any trial of the accused for the offence with which she is charged.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
XH
RESEARCH ASSOCIATE TO JUSTICE FIANNACA
18 APRIL 2018

[2018] WASC 118

01/01/2018