The State of Western Australia v Wungundin - [2023] WADC 88

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- WUNGUNDIN [2023] WADC 88
CORAM:   GETHING DCJ
HEARD:   27 JULY 2023
DELIVERED          :   15 AUGUST 2023
FILE NO/S:   IND DER 7 of 2023
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
DONOVAN DANIEL WUNGUNDIN

Catchwords:

Criminal law - Evidence - Admissibility of evidence of admissions by an accused - Admissibility of body worn camera footage - Admissibility of video record of interview - Whether admissions voluntary - Whether interview should be excluded in exercise of the unfairness discretion

Legislation:

Criminal Investigation Act 2006 (WA), s 138

Result:

Evidence is admissible

Representation:

Counsel:

The State of Western Australia	:	Mr N R Cogin
Accused	:	Mr P X Tobin & Mr S P V Naylor

Solicitors:

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

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

Collins v The Queen (1980) 31 ALR 257
Coulthard v Steer (1981) 12 NTR 13
EYO v The State of Western Australia [2019] WASCA 129
Kelly v The State of Western Australia [2017] WASCA 221
Luo v The Queen [2020] WASCA 184
MacPherson v The Queen (1981) 147 CLR 512
McDermott v The King (1948) 76 CLR 501
R v Anunga (1976) 11 ALR 412
R v Lee (1950) 82 CLR 133
R v Swaffield (1998) 192 CLR 159
R v Williams (1992) 8 WAR 265
Sinclair v The Queen (1946) 73 CLR 316
The State of Western Australia v Cox [2008] WASC 287
The State of Western Australia v Gibson [2014] WASC 240
The State of Western Australia v REL [2011] WADC 80
The State of Western Australia v Riley [2010] WADC 52
The State of Western Australia v Silich [2011] WASCA 135
Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396
Van der Meer v The Queen [1988] HCA 56; (1988) 82 ALR 10

GETHING DCJ:

Background

Background

The accused, Donovan Daniel Wungundin, is charged on DER IND 7 of 2023 that on 14 March 2022 he committed the offences of aggravated assault occasioning bodily harm contrary to s 317(1)(a) of the Criminal Code Compilation Act 1913 (WA) (Criminal Code) (count 1) and criminal damage by fire contrary to s 445A of the Criminal Code (count 2).
On 27 June 2023, the accused entered a plea of guilty to count 1 on the indictment. Count 2 is proceeding to trial.
At a trial listings hearing on 27 June 2023, counsel for the accused raised the issue of admissibility regarding the video record of interview conducted with the accused on 14 March 2022 (EROI). The matter was listed for a voir dire hearing to determine this issue.
The issue was heard by me on 27 July 2023 by way of a voir dire. The voir dire proceeded on the basis that the court needed to determine the admissibility of both the EROI and a video from a body worn camera of a detective who arrested the accused on the morning of 14 March 2022 (BWC Video).
The primary issue was whether the admissions contained in the BWC Video and the EROI were voluntary. Alternatively, it was argued that even if the admissions were voluntary, they should be excluded on discretionary grounds as they were obtained in a manner that was unfair to the accused or that was contrary to public policy.
At the voir dire, one detective gave evidence, Detective James Wilkinson. Detective Wilkinson was one of the two police officers who arrested and interviewed the accused. The accused did not give evidence.
For the reasons which follow the admissions made in the BWC video and EROI are admissible.

Alleged facts

The facts which the State alleges are as follows.
The complainant for the offending subject to count 1 is Elsie Nulgit. The accused and the complainant were in a domestic relationship at the time of the offending and share a young son together.
In the early hours of Monday, 14 March 2022, the accused and the complainant walked to the accused's home address at 2B Boab Street, Derby (Boab House). The accused had been consuming alcohol and cannabis since the afternoon of the previous day. The accused and the complainant had been arguing throughout the evening.
When the accused and the complainant reached the Boab House, the accused grabbed a thick stick from a tree at the front of the property and hit the complainant with the stick eight to nine times. The complainant had bruises on her arms, legs and upper thighs as a result.
The complainant told the accused she could not live like this anymore. The accused went into the house and left the complainant outside.
The accused went into his bedroom, retrieved his net laundry bag, containing his underwear, and used a lighter to set the laundry bag on fire. The fire died out, so the accused lit the laundry bag on fire again.
The accused then left his room without checking that the fire he had lit, and had control of, died out. After approximately five minutes, the accused noticed orange flames out of the corner of his eye. He ran inside and attempted to put the fire out, however the fire was too large to contain. The accused left the Boab House and called 000 to admit to what he had done.
The Boab House, which was owned by HomesWest, was completely destroyed by the fire.
The accused was subsequently arrested at 4B McGovern Street, Derby at 8.57 am. The detectives who attended were Detective Wilkinson and Detective Cameron Outred. The accused was given his rights under the Criminal Investigation Act 2006 (WA) (CIA) and was cautioned. The arrest was recorded in the BWC video, captured by Detective Outred. The accused made significant admissions in the BWC Video, which I set out below ([28)].
The accused was conveyed to Derby Police Station. At 10.17 am, Detectives Wilkinson and Outred commenced an electronically recorded interview with the accused (the EROI). In the EROI the accused was again cautioned and given his CIA rights for a second time.
During the EROI, the accused admitted to going into his room, lighting his laundry bag on fire and then leaving the room. He said that 5 to 10 minutes later, the room had lit up orange and was on fire. The interview concluded at 11.13 am.

Background findings

At the outset of my analysis, it is instructive for me to make a number of background findings.
The first is that there is no issue as to the accused's ability to understand and speak English. In the BWC Video, he tells police that English is his first language. In the EROI he is able to have a detailed conversation with the interviewing officers over the course of an hour. I was not able to discern any lack of understanding or inability to communicate in English.
The second is that, in my view, there is no basis for a finding that, in either the BWC Video, or the EROI, the accused was affected by a lack of sleep. Nor was he affected by being unwell due to his consumption of alcohol the preceding evening.
In written submissions, counsel for the accused asserted that the accused had either not slept or barely slept the night before the interview. Counsel also asserted that the accused was likely unwell from consuming alcohol to excess the night before.[1] However in oral submissions, these issues were not pressed strongly, and were said to be only relevant by way of context and background.[2] That concession was properly made. As I have mentioned, the accused did not give evidence. This means that any findings as to the accused's condition may only be made from the background circumstances, what is in each interview and the evidence of Detective Wilkinson. In the EROI the accused said that he was not tired and was not affected by any injury or illness. My observation of him is that he was able to give a coherent account of events in both interviews. I did not discern anything that would lead me to have the concerns initially suggested by counsel for the accused. Counsel for the accused did not suggest to Detective Wilkinson in cross‑examination that the accused was affected by a lack of sleep or by being unwell due to his consumption of alcohol the preceding evening.
[1] Defence submissions, pars 28 - 36.
[2] ts 47 - ts 48.
The third is that, in my view, the '000' call is admissible against the accused, regardless of whether or not the BWC Video and the EROI are admissible.
There is no formal transcript available of the 000 call, so I prepared one:
…
OPERATOR - - Hello police emergency.
UNKNOWN - - Hello? Hello?
OPERATOR - - Hello its police emergency.
UNKNOWN - - Yeah. Hi I just burnt a house at 2B Boab.
OPERATOR - - 2B Boab.
UNKNOWN - - Derby WA
OPERATOR - - Yep ok what's going on there?
UNKNOWN - - is burnt the house at 2B Boab. And I'm at 4B McGovern Way. As I speak I'm waiting here to get picked up.
OPERATOR - - Are you having an emergency?
UNKNOWN - - The house is burnt. It's on fucking fire.
OPERATOR - - Wait what number 2?
UNKNOWN - - 2B Boab. I burnt the house at 2B Boab and I'm waiting at 4B McGovern Way.
OPERATOR - - Okay and what's your name?
[phone call ends]
In my view, the '000' calls contains relevant circumstantial evidence. Specifically, it would be open to the jury to find that:
(a)the fire at 2B Boab was deliberately lit;
(b)the person who lit the fire was the person making the telephone call;
(c)the person who lit the fire was a man; and
(d)the person who burnt the house was waiting to be collected at 4B McGovern Way.
The '000' is admissible at least on that basis. Counsel for the accused did not suggest otherwise.[3]
[3] ts 49.
The fourth is that the admissions made in the BWC Video and the EROI are, in my view, reliable. In particular, the accused provides a detailed and coherent narrative in the EROI. His specific admissions and overall narrative are consistent with:
(a)the complainant's statement;
(b)the '000' call;
(c)the Preliminary Fire Report, which concludes that the fire started in or adjacent to the front left bedroom (though the author was not able to determine the precise cause of the fire or the exact point of ignition); and
(d)the accused's plea of guilty to count 1 and the statement of material facts for that offending.
Counsel for the accused accepted that there was no issue of reliability in the answers given.[4]
[4] ts 48 - ts 49, ts 67.
The fifth is that the accused was given the opportunity to contact the Custodial Notification Service (CNS) operated by the ALS, but declined to do so. This is evident from the transcript of the EROI.[5] This was also confirmed by Detective Wilkinson when giving evidence.[6]
[5] Page 7.
[6] ts 34 - ts 35.

Is the BWC Video admissible?

The contents of the BWC Video

There is no formal transcript of the BWC Video so, again, I had one prepared. I have bolded the admissions relied on by the State and identified them. I have also identified one answer on which counsel for the accused placed particular emphasis:
DETECTIVE WILKINSON - - Hello. How are you?
NANCY WUNGUNDIN - - Good.
DETECTIVE WILKINSON - - My names James this is my colleague, Cameron.
NANCY WUNGUNDIN - - Hello Cameron.
DETECTIVE WILKINSON - - Just so you guys know we have body worn cameras on our chest so everything we do is going to be recorded.
NANCY WUNGUNDIN - - Okay yeah no worries.
DETECTIVE WILKINSON - - What was your name for me my dear?
NANCY WUNGUNDIN - - Nancy Wungundin.
DETECTIVE WILKINSON - - And what was your name for me?
ACCUSED - - Daniel Wungundin.
DETECTIVE WILKINSON - - Daniel Wungundin. Daniel can we have a chat with you in the car port in relation to an incident that occurred last night?
ACCUSED - - Yeah that was me. [Admission 1]
DETECTIVE WILKINSON - - That was you?
NANCY WUNGUNDIN - - They want to talk to you [indistinguishable].
DETECTIVE WILKINSON - - Lets have a chat over here because we'll explain [indistinguishable]…
DETECTIVE OUTRED - - So Daniel just before we do anything I just want to tell you that you're um.
DETECTIVE WILKINSON - - Have a seat mate. Have a seat on the red chair.
DETECTIVE OUTRED - - Just going to tell you that at this stage you are under arrest on suspicion of criminal damage by fire and aggravated assault occasioning bodily harm, okay?
ACCUSED - - That's my fault it's okay man. [Admission 2]
DETECTIVE OUTRED - - So before you say anything I am going to caution you.
You don't have to say anything unless you wish to do so. Anything you do say or do is going to be recorded by my camera and by James's camera any may be given in evidence. Do you understand that?
ACCUSED - - Yep.
DETECTIVE OUTRED - - Okay so as an arrested suspect you have some rights. Ah we'll be taking you back to the station shortly.
You have a right to speak to a friend or relative to advise them of your whereabouts. So obviously Nancy is going to know what's happening.
You can also call someone else to let them know.
Um, you also have the right to speak to a lawyer.
Now when we get back to the station, we will be calling the Aboriginal Legal Service. It's up to you if you want to talk to them, but you will be given that opportunity, okay?
ACCUSED - - Yep.
DETECTIVE OUTRED -- You also have the right to any medical treatment. Do you have any injuries at the moment?
ACCUSED - - No. I'm good.
DETECTIVE OUTRED - - Okay no problem. Is English your first language?
ACCUSED - - Yes.
DETECTIVE OUTRED - - Okay. Right.
ACCUSED - - I rang last night about …
DETECTIVE WILKINSON - - Yeah. Yeah, we've got that phone call. So. Yeah. [Admission 3]
ACCUSED - - [indistinguishable].
DETECTIVE OUTRED - - Yea. Yep.
DETECTIVE WILKINSON - - So what you need to know is that it is entirely up to you if you want to answer our questions okay? Daniel. Sorry. Donovan? You do not have to answer any of our questions.
ACCUSED - - Yep.
DETECTIVE WILKINSON - - If you want to answer them, please feel free its entirely up to you.
ACCUSED - - Yep.
DETECTIVE WILKINSON - - If you don't want to answer them you need to let us know because we can't read your mind.
ACCUSED - - Yeah yeah.
DETECTIVE WILKINSON - - So what can you say to us if there's a question that Cameron and I ask you and you don't want to answer it?
ACCUSED - - Just hit me with what you got, man.
DETECTIVE WILKINSON - - sorry?
ACCUSED - - Just hit me with what you got. [Answer A]
DETECTIVE WILKINSON - - Well no no. What can you say to us if there's a question you don't want to answer?
ACCUSED - - I don't even know what the questions are. Tell me. Until I know.
DETECTIVE WILKINSON - - Yeah. So, if we ask you a question that you don't want to answer. Like if I asked you what colour is the sky and you go 'oh I don't want to say that'.
ACCUSED - - Yeah.
DETECTIVE WILKINSON - - Say no comment. Okay? It's no skin off our nose. You're not going to upset us.
ACCUSED - - Yeah.
DETECTIVE WILKINSON - - And we just know that you're exercising your right to remain silent as such in relation to that particular question.
ACCUSED - - Yep.
DETECTIVE WILKINSON - - Cool?
ACCUSED - - Yep.
DETECTIVE WILKINSON - - So you can choose to answer some of our questions. None of them. That's entirely up to you. Okay? But what you say will be recorded. And it may be used in court if you are charged with having done something wrong. Does that make sense?
ACCUSED - - Yep.
DETECTIVE WILKINSON - - Cool. Is there anything you need to bring with you to the police station?
ACCUSED - - I just need to have a quick shower. You can't wait inside for me. I'll just have a quick shower.
DETECTIVE WILKINSON - - You can have a shower at the police station.
ACCUSED - - Yeah well I'm kind of filthy.
DETECTIVE WILKINSON - - Alright do you want to jump in our car?
ACCUSED - - [indistinguishable].
DETECTIVE WILKINSON - - Sorry?
ACCUSED - - [indistinguishable] inside.
DETECTIVE WILKINSON - - Daniel. Donovan. Is it Daniel or Donovan?
ACCUSED - - I prefer Daniel.
DETECTIVE WILKINSON - - Daniel OK. So because we have told you you're under arrest we can't let you be by yourself. Does that make sense? Okay?
ACCUSED - - [indistinguishable].
DETECTIVE WILKINSON - - - yeah yeah yeah we understand we understand. Mate leave those. No point bringing them. Is there anything in this bag that you shouldn't have or that you don't want …
ACCUSED - - Nah [indistinguishable].
DETECTIVE WILKINSON - - Can I just ask you in relation to the …
In relation to the fire that started last night, remembering that you don't have to answer any of our questions, or say anything if you don't want to, is there anything that is in your possession at the minute that assisted in relation to the starting of that fire.
Any lighters? Anything like that?
ACCUSED - - I had a lighter.
DETECTIVE WILKINSON - - You had a lighter? Where abouts is that now?
ACCUSED - - Burnt? [Admission 4]
DETECTIVE WILKINSON - - Back at the house? Okay that's fine. Cool. Alright.
…

Defence position

The accused's position is that admissions he made, which I have identified, were not voluntary. Even if they were, they ought to be excluded in the exercise of the discretion of the court on the basis that they were obtained in an unfair manner.
Counsel for the accused specifically referred to the statements which I have identified as Answer 1. Counsel submitted the accused makes it clear that he is subjugating the exercise of his own will to that of the arresting detectives.[7]
[7] Accused addendum submissions, par 5.
A further basis relating to the BWC Video is that the court should have a concern about the timeline of events:[8]
Mr Wungundin was drinking until the early hours of the morning when the house fire occurred, did not have a proper opportunity to sleep and was arrested and interviewed that same morning in quick succession, Mr Wungundin had not spoken to a lawyer prior to begin interviews: he did not know how to protect his rights.
However, as I have noted ([21] ‑ [22]), the concerns about sleep and the accused being affected by alcohol were not pressed, save by way of background and context.
[8] Accused addendum submissions, par 5.
Counsel for the accused did not submit that the admissions in the BWC Video were obtained in breach of the provisions of the CIA.

State's position

The State's position is that the admissions made in the BWC Video were both voluntary and not made in circumstances which justify exclusion on discretionary grounds.
The State also submits the detectives carried out an extensive investigation in accordance with the Anunga[9] guidelines. The detectives continued to investigate despite the accused's initial admissions. The police ensured the offending could be proved beyond the requisite standard.[10]

Were the admissions in the BWC Video voluntary?

[9]R v Anunga (1976) 11 ALR 412, 413 - 415 (Forster J).

[10] State submissions, par 17.

The principles are well established:[11]
[11] See: Luo v The Queen [2020] WASCA 184 [61] ‑ [62] (judgment of the court) (Luo); EYO v The State of Western Australia [2019] WASCA 129 [50] - [52] (judgment of the court) (EYO); Kelly v The State of Western Australia [2017] WASCA 221 [34] - [48] (judgment of the court) (Kelly).
(a)it is a fundamental common law requirement that a confessional statement must be voluntary;
(b)it is presumed that a confessional statement is voluntary if there is nothing to suggest that it is involuntary;
(c)if the issue of voluntariness is raised, the State bears the onus of establishing, on the balance of probabilities, that the statement is voluntary;
(d)the court must be 'completely satisfied' that the confessional statement was voluntary';[12]
(e)the principles of voluntariness focus on the will of the accused and must be applied according to the age, background and psychological condition of the accused and the circumstances in which the admissions were made;[13]
(f)voluntariness is not an issue to be determined by reference to a hypothetical standard, but rather requires a careful assessment of the effects of the actual circumstances upon the will of the particular accused;[14]
(g)breaches of the Anunga guidelines may be relevant to an assessment of the voluntariness of confessional evidence by an Aboriginal person;[15]
(h)if a confessional statement is not voluntary, it is not admissible in the State's case; and
(i)subject to the CIA, if a confessional statement is voluntary, it is prima facie admissible.
[12] The State ofWestern Australia v Cox [2008] WASC 287 [49] - [50] (Martin CJ).
[13] The State ofWestern Australia v Gibson [2014] WASC 240 [161] (Hall J) (Gibson); Collins v The Queen (1980) 31 ALR 257, 307 (Brennan J) (Collins).
[14] Gibson [161]; Collins (307).
[15] EYO [54]; Gibson [162].

The test as to when a confession is voluntary has been explained in a number of High Court cases. In MacPherson v The Queen Gibbs CJ and Wilson J posited the test in the following terms:[16]
The rule of the common law … is that a confessional statement made out of court by an accused person is not admissible in evidence unless it was made voluntarily, that is, in the exercise of a free choice to speak or be silent. A confession will not have been voluntary if it has been obtained from the accused by fear of prejudice or hope of advantage exercised or held out by a person in authority, or as the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure-anything that has overborne the will of the accused.
[16] MacPherson v The Queen (1981) 147 CLR 512, 519 (Gibbs CJ & Wilson J).
The concepts in the second sentence reflect an earlier oft‑cited passage from Dixon J in McDermott v The King:[17]
At common law a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made. This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary. But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made. The expression 'person in authority' includes officers of police and the like, the prosecutor, and others concerned in preferring the charge. An inducement may take the form of some fear of prejudice or hope of advantage exercised or held out by the person in authority. That is the classical ground for the rejection of confessions and looms largest in a consideration of the subject. … The extreme applications which were made at one time of the principle that confessions obtained by the use by persons in authority of hope or fear were inadmissible gave this head of inducement an importance which has tended to obscure other forms of inducement. It is perhaps doubtful whether, particularly in this country, a sufficiently wide operation has been given to the basal principle that to be admissible a confession must be voluntary, a principle the application of which is flexible and is not limited by any category of inducements that may prevail over a man's will.
[17] McDermott v The King (1948) 76 CLR 501, 511 - 512 (Dixon J) (references omitted) (McDermott).
Another oft‑cited passage is from the decision of the court in R v Lee in which the court stated:[18]
The word 'voluntary' in the relevant connection does not mean 'volunteered'. It means 'made in the exercise of a free choice to speak or be silent'.
[18] R v Lee (1950) 82 CLR 133, 149 (judgment of the court).
The passages in the preceding paragraphs were adopted by the Court of Appeal in EYO[19] and Kelly.[20]
[19] EYO [50].
[20] Kelly [35].
Counsel for the accused[21] relied on the following statement of the rule by Gummow and Hayne JJ in Tofilau v The Queen:[22]
The key inquiry is about the quality of the compulsion that is said to have overborne the free choice of whether to speak or to remain silent.
However this statement of principle must be considered in the context of the following two sentences in the same passage:[23]
In this context, 'overborne' should be understood in the sense described by Dixon J as 'the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure'. It is necessary to focus upon the sufficiency of the compulsion.
[21] Defence submissions, par 15.
[22] Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396 [60] (Gummow & Hayne JJ) (Tofilau).
[23] Tofilau [60].
The quotation from the decision of Dixon J is from the decision in McDermott which I have quoted in detail at [37]. The majority in Tofilau declined the invitation by counsel for each of the appellants to treat the 'key inquiry' as a wider principle, disconnected from the principle which I have set out at [37].[24]
[24] Tofilau [22] (Gleeson CJ), [55] - [64] (Gummow & Hayne JJ), [323] (Callinan, Heydon & Crennan JJ). Kirby J dissented ([204]).
In the present case, there is no evidence or other material to suggest that the admissions in the BWC Video were obtained from the accused by anything resembling fear or prejudice. Nor of hope of advantage exercised or held out by a person in authority. Nor is there any evidence or other material to suggest that the confessions in the BWC Video were obtained from the accused by anything resembling duress, intimidation, persistent importunity, or sustained or undue insistence or pressure. In coming to this conclusion, I have taken into account the Anunga guidelines.
I do not regard Answer A as demonstrating that the accused's will had been overborne. By that time, he had made Admission 1, Admission 2 and Admission 3, unprompted by the arresting officers. He made these admissions because, in my view, he wanted to accept responsibility for his actions.
The State has completely satisfied me that the admissions made by the accused in the BWC Video were voluntary.

Would it be unfair to the accused to admit the BWC Video in evidence?

The discretion to decline to admit confessional statements where it would be unfair to the accused to do so is well established. The discretion is the first of the three discretions as summarised by Gleeson CJ in Tofilau:[25]
In addition to the rule that requires a trial judge to exclude evidence of a confession that is not voluntary, there are discretionary principles according to which a trial judge may exclude evidence of a voluntary confession. Those principles have been stated in a number of decisions of this Court, and were summarised in R v Swaffield [(1998) 199 CLR 159 at 189 [51] - [52] by Toohey, Gaudron and Gummow JJ, as covering three classes of case. The first is a case where it would be unfair to the accused to admit the statement. The relevant form of unfairness is related to the law's protection of the rights and privileges of the accused person. The second is a case where considerations of public policy, such as considerations that might be enlivened by improper police conduct, make it unacceptable to admit the statement. The third concerns the general power of a trial court to reject evidence on the ground that its prejudicial effect (that is to say, the danger of its misuse, not its inculpatory force) outweighs its probative value.
[25] Tofilau [3].
The principles governing the exercise of this discretion are also well established:[26]
(a)an accused who asserts that a voluntary confession was improperly or unfairly obtained or should, on some other recognised basis, be excluded bears the onus of proving facts that would justify an exercise of the residual discretion in his or her favour;
(b)in the exercise of the unfairness discretion, the reliability of the confession is a relevant but not a determinative consideration - a reliable confession may nevertheless be excluded due to other factors;
(c)where an interview is both reliable and voluntary, an accused bears a high onus to establish that the unfairness discretion should be invoked;[27] and
(d)breaches of the Anunga guidelines may be relevant to an assessment of the unfairness discretion.[28]
[26] See generally: Luo [62]; EYO [50] - [52] (judgment of the court); Kelly [34] - [48] (judgment of the court).
[27] R v Williams (1992) 8 WAR 265, 273 - 274.
[28] EYO [54]; Gibson [162].
As Gleeson CJ makes clear, the relevant form of unfairness is related to the law's protection of the rights and privileges of the accused person.[29]
[29] Tofilau [3].
The accused did not give evidence, so I am left with inferences which I am able to draw from the BWC Video.[30] The evidence of Detective Wilkinson does not add anything to what is in the BWC Video, nor was there any salient cross‑examination.
[30] Similar to Luo [103].
The accused made the admissions whilst the detectives were in the process of explaining to him his rights and privileges. My observation from watching the BWC Video was that they did so in a manner that was polite and respectful. Detective Outred in fact, after the accused makes Admission 2, stops him from speaking, and says: 'So before you say anything I am going to caution you'.
Admission 1, Admission 2 and Admission 3 were unsolicited. They were not made in response to questions by the arresting officers. Admission 4 was made in relation to a question that, in my view, was entirely appropriate to ask an arrested, cautioned suspect when removing him from where he was found, in the circumstances of this case.
The inference I draw from the BWC Video as a whole is that the accused wanted to accept responsibility for his actions the night before.
The accused has failed to establish, on the balance of probabilities, a sufficient factual basis to justify the exercise of the discretion to refuse to admit the BWC Video on the ground that it would be unfair to him to do so.

Would it be contrary to public policy to admit the BWC Video?

Again, in the words of Gleeson CJ, the second basis for discretionary exclusion is where considerations of public policy, such as considerations that might be enlivened by improper police conduct, make it unacceptable to admit the statement. It allows the court to exclude admissions which have been obtained at a price which is unacceptable having regard to contemporary community standards.[31]
[31] R v Swaffield (1998) 192 CLR 159, 190 - 191 (Toohey, Gaurdon & Gummow JJ).
In the present case, I do not discern anything improper in the conduct of the detectives who went to arrest the accused on the morning of 14 March 2022. Their actions were recorded on their body worn cameras. They were polite and respectful, and their behaviour was in no way overbearing. They gave the accused his CIA rights. Before they did so, he made three unsolicited admissions. Admission 4, whilst solicited, was solicited through a general question that was appropriate to ask of the accused in the circumstances. Each admission is reliable. There is no aspect of the conduct of the detectives which needs to be highlighted as inappropriate practice which ought to be discouraged.
The accused has failed to establish, on the balance of probabilities, a sufficient factual basis to justify the exercise of the discretion to refuse to admit the BWC Video on the ground that it would be contrary to public policy to do so.

Conclusion

The BWC Video is admissible. The State has satisfied me that the admissions made in it were voluntary. The accused has not satisfied me that I should exercise my discretion to exclude it.

Is the EROI admissible?

Defence concerns

In general terms, counsel for the accused submitted that the admissions made in the EROI were not voluntary, and if voluntary, ought to be excluded as it would be unfair to the accused to admit them into evidence. Counsel for the accused identified five factors which, taken together, justify both conclusions.
The first factor is that, as with the BWC Video, the court should have a concern about the timeline of events, on the basis of what I have set out at [21] and [22].[32]
[32] Accused addendum submissions, par 5(d).
The second factor is that the accused makes explicit at several points after his initial arrest that he is subjugating his own will to that of the arresting and interviewing officers. Counsel refers first to Answer A from the BWC Video. Three further statements are identified during the EROI:
(a)'Yeah I - I just do whatever you guys want right now' (Statement 1);
(b)Question - 'Can I force you to answer a question?' Answer - 'That's up to you guys' (Statement 2); and
(c)At the end of the caution, 'Yeah. I'll - I'll just do it' (Statement 3).
The third factor is that the initial portion of the interview, (including the explanation of the caution), 'is replete with gratuitous responses'.[33] The accused showed hallmarks of gratuitous concurrence and that he was vulnerable to the 'compelling aura' of police investigation. The reference to a 'compelling aura' is a reference to an observation by Mason CJ in Van der Meer v The Queen that 'at any time, interrogation at a police station has a compelling aura about it'.[34] In this respect, it is said that the conduct of the interview breached the Anunga guidelines.
[33] Accused addendum Submissions, par 5(b).
[34] Van der Meer v The Queen [1988] HCA 56; (1988) 82 ALR 10 [23].
The fourth factor is that the court could not be satisfied that the accused understood the second limb of the caution. Counsel submitted that the court could find that the accused was from a remote area of the Kimberley, and that he did not have, nor demonstrate in the interviews, a good foundation of legal concepts.[35]
[35] ts 52.
The two limbs of the caution are conveniently set out in the decision of the Court of Appeal in EYO:[36]
The caution that a police officer is obliged to give to an arrested suspect has two limbs. The first limb is that the suspect has the right not to answer any questions put to him or her by police. The second limb is that, if the suspect answers any question, the answer may be given in evidence. The importance of the second limb of the caution is to ensure that the suspect understands the effect or consequence of answering any question put by police. Comprehension of the second limb of the caution is as important as comprehension of the first limb.
[36] EYO [69].
The fifth factor is that the accused did not demonstrate a sufficient understanding of the role of a lawyer: 'he has no understanding of what a lawyer does; and does not demonstrate an understanding of the consequences of speaking with police'.[37]
[37] Accused addendum submissions, par 5(c).
Counsel for the accused did not submit that the EROI was made in breach of the requirements of the CIA.

State's position

The State submission is that the only reasonable inference available from the EROI is that the accused was aware the EROI was being recorded and could be used against him in relation to the matter he was being interviewed about. In both written and oral submissions, counsel identified some passages of significance, which I have quoted below ([71] ‑ [73]).
The State also points out that CIA s 138 does not place an obligation on a police officer to explain what evidence is and the functions of a court. Notwithstanding that, the accused demonstrated that he had an understanding that the EROI could be played to a person who could make a determination as to whether he was guilty or not guilty and sentence a person accordingly.[38]
[38] State submissions, par 37.
The State submitted that the caution given in the EROI went well beyond simply telling the accused that a magistrate could look at the video and 'listen to his story',[39] something considered insufficient in The State of Western Australia v REL.[40] The specific findings made by the judge in that case are worthwhile noting:[41]
From my review of the interview, particularly the passage referred to above however I am not satisfied that the accused fully understood the nature of the caution that had been given to him and the use which would be made of his answers to questions put to him. He was not asked if he understood the use to which it would be put.
In such circumstances I am not satisfied that the accused appreciated or understood the nature of the proceedings and that consequence of answering the questions may be that they would be put before a court to deal with him for anything revealed by the answers. In my opinion, to that extent, the caution administered to the accused was deficient. To say (ts 9) 'a magistrate will listen to your story' did not disclose to the accused that the answer he gave might be used against him in the proof of such offences with which he may be charged arising out of the matter.

Were the admissions in the EROI voluntary?

[39] State submissions, par 39.

[40] The State of Western Australia v REL [2011] WADC 80 [45], [48] (REL)

[41] REL [47] - [48].

It is convenient to begin with the first factor identified by counsel for the accused, being the timeline of events. In order to render an admission involuntary the level of the accused's intoxication 'must be so great as to deprive him of understanding what he was confessing'.[42] This is not such a case. I have above ([21] ‑ [22]) set out my conclusion that there is no basis for a finding that in either the BWC Video or the EROI the accused was affected by a lack of sleep or by being unwell due to his consumption of alcohol the preceding evening.
[42] The State of Western Australia v Silich [2011] WASCA 135 [51] (Martin CJ), [154] (Buss JA); Sinclair v The Queen (1946) 73 CLR 316, 336 (Dixon J).
As to the second factor, it is necessary to place each of the statements relied on in their context.
As to Statement 1:[43]
DET S/CON OUTRED: If you choose now to speak to a lawyer, we can pause this, and you can speak to one. If you wanna speak to one after, it's up to you. Okay.
WUNGUNDIN: Yeah. I - I just do whatever you guys wanna do right now. [Statement 1]
DET S/CON OUTRED: All right. But it's, yeah, it's just important that you know that you don't have to do this. Okay. You don't have to talk to us at the moment.
WUNGUNDIN: Yep.
[43] EROI, page 7.
As to Statement 2:[44]
[44] EROI, pages 9 and 10.
DET S/CON OUTRED: Do you have to ask - do you have to answer my questions?
WUNGUNDIN: If I want to. Yeah.
DET S/CON OUTRED: If you want to?
WUNGUNDIN: Yep.
DET S/CON OUTRED: Okay. Um, can I force you to answer a question?
WUNGUNDIN: That's up to you guys. [Statement 2]
DET S/CON OUTRED: Okay.
WUNGUNDIN: Yeah. It's up to you guys.
DET S/CON OUTRED: No. I - I cannot force you.
WUNGUNDIN: Yep.
DET S/CON OUTRED: Okay. If I ask a question that you're not comfortable with - - -
WUNGUNDIN: Yeah.
DET S/CON OUTRED: - - - you don't have to answer it.
WUNGUNDIN: Yeah.
DET S/CON OUTRED: Okay. And if you don't want to answer it, what can you say to me?
WUNGUNDIN: I don't know.
DET S/CON OUTRED: You can say, 'No comment', or, 'I don't want to answer that'. Okay. Do you understand that?
WUNGUNDIN: Yep.
DET S/CON OUTRED: Okay. So, if - if there is a question that you're not comfortable with, please tell me that you don't wanna answer it. Say, 'No comment', or 'I don't wanna - I don't wanna answer that'.
WUNGUNDIN: Yeah. Yeah.
DET S/CON OUTRED: Just don't - don't just sit there silently - --
WUNGUNDIN: Nah [indistinct]
DET S/CON OUTRED: - - - because then I don't know if you've understood the question.
WUNGUNDIN: Yeah.
DET S/CON OUTRED: Okay. So, um, just to go over it again, do you have to answer my questions?
WUNGUNDIN: No.
As to Statement 3:[45]
[45] EROI, pages 11 and 12.
DET S/CON OUTRED: Okay. So, do you understand that this video could be played in court to help the judge or to - to assist the judge in determining whether you are guilty or not guilty?
WUNGUNDIN: Yep.
DET S/CON OUTRED: Okay. So, it's important that you understand that, um, you don't have to do this interview if you don't want. But if you do the judge can use it. Okay.
WUNGUNDIN: Yeah. I'll - I'll just do it. [Statement 3]
DET S/CON OUTRED: All right. You happy he understands that?
DET S/CON WILKINSON: So, just - just to make doubly sure that you've understood everything, okay. If I asked you 10 questions, and one of those questions is, 'What colour is the sky?' Do you have to answer that question?
WUNGUNDIN: No.
DET S/CON WILKINSON: Do you have to answer any of my 10 questions?
WUNGUNDIN: No.
DET S/CON WILKINSON: How are you gonna tell Cameron and I if the - if we ask a question, and you don't wanna answer it? Wh -what are you gonna say to us?
WUNGUNDIN: I'm gonna say, 'No comment'.

In my view, taken in context, the statements identified as being of concern by counsel for the accused reflect the fact that he is being cooperative and, as with the BWC Video, genuinely wants to take responsibility for this offending. More significantly, the interviewing officers take great care in making sure that the accused understands the first limb of the caution. This is evident right throughout the introductory phase of the EROI, of which the passages quoted are representative.
This comment is also relevant to the third factor identified, being an assertion that the accused showed hallmarks of 'gratuitous concurrence'. The concept of 'gratuitous concurrence' is best defined in the words of Forster J in Aunuga:[46]
Another matter which needs to be understood is that most Aboriginal people are basically courteous and polite and will answer questions by white people in the way in which they think the questioner wants. Even if they are not courteous and polite there is the same reaction when they are dealing with an authority figure such as a policeman. Indeed, their action is probably a combination of natural politeness and their attitude to someone in authority. Some Aboriginal people find the standard caution quite bewildering, even if they understand that they do not have to answer questions, because, if they do not have to answer questions, then why are the questions being asked?
[46] Anunga (414), quoted with approval in EYO [55].
In response to this risk, one of the Anunga guidelines recommends that police take great care when administering the caution:[47]
(3)Great care should be taken in administering the caution when it is appropriate to do so. It is simply not adequate to administer it in the usual terms and say, 'Do you understand that?' or 'Do you understand you do not have to answer the questions?' Interrogating police officers, having explained the caution in simple terms, should ask the Aboriginal to tell them what is meant by the caution, phrase by phrase, and should not proceed with the interrogation until it is clear the Aboriginal has apparent understanding of his right to remain silent. Most experienced police officers in the Territory already do this. The problem of the caution is a difficult one but the presence of a 'prisoner's friend' or interpreter and adequate and simple questioning about the caution should go a long way towards solving it.
[47] Anunga (414), quoted with approval in EYO [55].
At this point, it is worthwhile noting the statements by the Court of Appeal in EYO as to the status of the Aununga guidelines:[48]
Where a suspect is an indigenous person, such as the appellant, the Anunga guidelines may apply. The Anunga guidelines indicate what is required by way of fairness when an indigenous person is being questioned by police … They do not have the force of law in Western Australia and are not absolute, but, in appropriate circumstances, they give a very good indication of what ordinarily would be regarded as a fair interrogation … The basic principles embodied in the Anunga guidelines remain as relevant today as when they were first formulated in 1976. However, the application of the guidelines must reflect changes in social conditions and values, and community standards and expectations … Breaches of the Anunga guidelines may be relevant to an assessment of the voluntariness of confessional evidence given by an Aboriginal person and the exercise of the unfairness discretion …
[48] EYO [54] (references omitted).
The interviewing officers in the EROI, in my view, took the 'great care' required by the Anunga guidelines to explain the caution to the accused.
Even accepting the risk of gratuitous concurrence, I remain of the view that the affirmative answers which the accused gives in the preliminary part of the EROI are reflective of a man who has made a decision to take responsibility for his actions. This conclusion is reinforced by the fact that when the interview moves to the substantive allegations, the accused provides an immediate and detailed narrative of the offending:[49]
DET S/CON OUTRED: Okay. Um, Daniel, what I'd like to know, can you please tell me what happened last night?
WUNGUNDIN: Um, last night I was out - I went out to Mowanjum had a drink with a few of the - my in‑laws. Then we came back into town. First, we got into a [indistinct] out at Mowanjum. It was just that she thought that I, like, my partner - we had an argument. She thought that I was f, like, talked to my ex. But I didn't. Never talk to any of them. Came into town, and she just started arguing with me. Swearing, running her, you know, running her mouth. And was asking for that shit, you know. And then after that I went into the room. I was pissed off, and I - I just went into the room and I just burn, um, fucking, I b - burnt my 1 - laundry bag, and I thought that that thing wouldn't even lit up, you know. And then within, like, five or 10 minutes later well, I just see the room just light up orange, and all of a sudden I'm like, 'What the fuck?' And then I'm just quickly running. I see that room on fire and I quickly try to get the water to die it out. But I - I had got my grandparents out of the house. Even my mum and my little sister, and my stepfather, and my son and my partner was there, but I got them out of the house before it started, like, really high, you know?
[49] EORI, page 13.
This conclusion is further reinforced by the fact that over the remaining 45 or so minutes of the interview, the accused engages with police in a coherent and cogent manner, providing further detail.
Counsel for the accused was also critical of the interviewing officers for not offering the accused an 'interview friend'. This is another aspect of the Anunga guidelines:[50]
When an Aboriginal is being interrogated it is desirable where practicable that a 'prisoner's friend' (who may also be the interpreter) be present. The 'prisoner's friend' should be someone in whom the Aboriginal has apparent confidence. He may be a mission or settlement superintendent or a member of the staff of one of these institutions who knows and is known by the Aboriginal. He may be a station owner, manager or overseer or an officer from the Department of Aboriginal Affairs. The combinations of persons and situations are variable and the categories of persons I have mentioned are not exclusive. The important thing is that the 'prisoner's friend' be someone in whom the Aboriginal has confidence, by whom he will feel supported.
[50] EYO [55] (references omitted).
It is not the case that every indigenous person who is arrested and interviewed in this State must be offered an interview friend.[51] My observations of the accused from the BWC Video and the EROI do not suggest that he had any particular vulnerability that would have warranted the interviewing detectives not proceeding with the interview without the accused having an interview friend, or at least having been offered one.
[51] Coulthard v Steer (1981) 12 NTR 13, 17 (Muirhead J); The State of Western Australia v Riley [2010] WADC 52 [29] (Davis DCJ).
I also note at this point the State's submission that the investigating officers have complied with Anunga guideline (5):[52]
Even when an apparently frank and free confession has been obtained relating to the commission of an offence, police should continue to investigate the matter in an endeavour to obtain proof of the commission of the offence from other sources.
[52] Anunga (415).
In my view, the real issue with this application is the fourth and fifth factors. The application depends on whether the accused had a sufficient understanding of the second limb of the caution and whether the accused had a sufficient understanding as to the role of a lawyer. Counsel for the accused accepted that the accused ultimately appeared to have a sufficient understanding of the first limb of the caution, though initially he did not.[53]
[53] ts 52, ts 74.
In relation to the latter, there is no specific statutory obligation to explain the role of a lawyer. Rather, the obligation in CIA s 138(2)(c) is to provide an arrested suspect with 'a reasonable opportunity to communicate or to attempt to communicate with a legal practitioner'. The investigating detectives did this by giving the accused the opportunity to speak with the CNS. The Anunga guidelines do not specifically require police to explain the role of a lawyer. Nor is there any other specific common law obligation to explain the role of a lawyer.
The relevant passages from the EROI relating to the second limb of the caution and the opportunity to communicate with a lawyer are as follows (with some overlap with the previously quoted passages):[54]
[54] EROI, pages 6 ‑ 12.
DET S/CON OUTRED: Okay. Uh, you also have the s - the right to speak with a lawyer. Do you remember me telling you that?
WUNGUNDIN: Yep.
DET S/CON OUTRED: Okay. Do you want to exercise that right?
WUNGUNDIN: Yep.
DET S/CON OUTRED: Do you want to speak to a lawyer?
WUNGUNDIN: Um, um, I'm not really sure. I - I - it's my first time actually being in here. I - I - I'm not - - -
DET S/CON OUTRED: Yeah.
WUNGUNDIN: - - - really sure about lawyers and whatever. Yeah.
DET S/CON OUTRED: Okay. So, do you r - do you remember when we got back to the station I phoned a lawyer - - -
WUNGUNDIN: Yep.
DET S/CON OUTRED: - - - and I spoke to them, and I offered you the opportunity?
WUNGUNDIN: Yep.
DET S/CON OUTRED: Um, and do you agree that you said that you didn't want to speak to them then?
WUNGUNDIN: Yep.
DET S/CON OUTRED: Okay. If you want to speak to a lawyer at anytime, it is no problem at all. Okay.
WUNGUNDIN: Yep.
DET S/CON OUTRED: If you choose now to speak to a lawyer, we can pause this, and you can speak to one. If you wanna speak to one after, it's up to you. Okay.
WUNGUNDIN: Yeah. I - I just do whatever you guys wanna do right now.
DET S/CON OUTRED: All right. But it's, yeah, it's just important that you know that you don't have to do this. Okay. You don't have to talk to us at the moment.
WUNGUNDIN: Yep.
DET S/CON OUTRED: Okay. And it is your right to speak to a lawyer if you want to. It's not - it's not an inconvenience for me. It's not an inconvenience for James. Uh, we just wanna make sure that you know everything that you're entitled to.
WUNGUNDIN: [indistinct]
DET S/CON OUTRED: Okay. Um, so, if you do choose - you wanna speak to a lawyer, please let us know. Okay?
WUNGUNDIN: Yeah. I'll let you guys know later.
DET S/CON OUTRED: Okay.
DET S/CON WILKINSON: Do you know what a lawyer does?
WUNGUNDIN: Yeah. Helps.
DET S/CON WILKINSON: Yep. They act for you and work in your best - - -
WUNGUNDIN: Yes.
DET S/CON WILKINSON: - - - interest.
WUNGUNDIN: Yeah.
DET S/CON WILKINSON: Okay.
WUNGUNDIN: I know. Yeah.
DET S/CON WILKINSON: We - we investigate - -
WUNGUNDIN: Yep.
DET S/CON WILKINSON: So, someone comes to us and tells us someone did something - - -
WUNGUNDIN: Yeah.
DET S/CON WILKINSON: - - - we investigate that. In red - in regards to you, a lawyer will act in your best interest, and make sure that we do our job properly. And that you know everything that you are entitled to while you're here at the police station.
WUNGUNDIN: Yep.
DET S/CON WILKINSON: Does that make sense?
WUNGUNDIN: Yeah.
DET S/CON WILKINSON: Okay.
DET S/CON OUTRED: Okay. So, in a moment I'm gonna ask you some questions about what happened last night. Before I ask you anything though, I'm gonna tell you again, um, that you don't have to s - you don't have to talk to us. Okay. You don't have to answer any of my questions, or James' questions. Okay.
WUNGUNDIN: Yep.
DET S/CON OUTRED: Unless you want to. If you do answer our questions, everything you do or say will be recorded by the camera - - -
WUNGUNDIN: Yep.
DET S/CON OUTRED: - - - and may be given in evidence. Do you understand that?
WUNGUNDIN: Yep.
DET S/CON OUTRED: Okay. So, that I am comfortable that you understand your rights, can you please tell me what that caution means to you?
WUNGUNDIN: For my rights?
DET S/CON OUTRED: Well, for the - the caution that I just gave you. What does that mean to you?
WUNGUNDIN: I - I'm sorry, but I can't.
DET S/CON OUTRED: That's okay.
WUNGUNDIN: [indistinct] now.
DET S/CON OUTRED: Do you have to ask - do you have to answer my questions?
WUNGUNDIN: If I want to. Yeah.
DET S/CON OUTRED: If you want to?
WUNGUNDIN: Yep.
DET S/CON OUTRED: Okay. Um, can I force you to answer a question?
WUNGUNDIN: That's up to you guys.
DET S/CON OUTRED: Okay.
WUNGUNDIN: Yeah. It's up to you guys.
DET S/CON OUTRED: No. I - I cannot force you.
WUNGUNDIN: Yep.
DET S/CON OUTRED: Okay. If I ask a question that you're not comfortable with - - -
WUNGUNDIN: Yeah.
DET S/CON OUTRED: - - - you don't have to answer it.
WUNGUNDIN: Yeah.
DET S/CON OUTRED: Okay. And if you don't want to answer it, what can you say to me?
WUNGUNDIN: I don't know.
DET S/CON OUTRED: You can say, 'No comment', or, 'I don't want to answer that.' Okay. Do you understand that?
WUNGUNDIN: Yep.
DET S/CON OUTRED: Okay. So, if - if there is a question that you're not comfortable with, please tell me that you don't wanna answer it. Say, 'No comment', or 'I don't wanna - I don't wanna answer that'.
WUNGUNDIN: Yeah. Yeah.
DET S/CON OUTRED: Just don't - don't just sit there silently -
WUNGUNDIN: Nah [indistinct]
DET S/CON OUTRED: - - - because then I don't know if you've understood the question.
WUNGUNDIN: Yeah.
DET S/CON OUTRED: Okay. So, um, just to go over it again, do you have to answer my questions?
WUNGUNDIN: No.
DET S/CON OUTRED: No. Okay. Anything you say or do will be recorded.
WUNGUNDIN: Yeah.
DET S/CON OUTRED: How's that being recorded?
WUNGUNDIN: Camera.
DET S/CON OUTRED: Yep. Okay. And where could this video be played?
WUNGUNDIN: Sorry?
DET S/CON OUTRED: Where could this video be played?
WUNGUNDIN: I dunno. At the courthouse.
DET S/CON OUTRED: At the courthouse?
WUNGUNDIN: Yeah.
DET S/CON OUTRED: Right. And what happens at court?
WUNGUNDIN: They decide 50/50 if you go in or stay out.
DET S/CON OUTRED: Yep. So, what does a courthouse do? Or who's -who's at the court?
DET S/CON WILKINSON: Have you been through court before?
WUNGUNDIN: No. O - only since I [indistinct] last time I went to court I was like 14 - 15 - - -
DET S/CON WILKINSON: Yeah. Okay.
WUNGUNDIN: - - - last time I've ever been through a court.
DET S/CON OUTRED: Yeah. So, who's in - - -
DET S/CON WILKINSON: So, a long time ago?
DET S/CON OUTRED: Yeah.
WUNGUNDIN: Long time ago.
DET S/CON OUTRED: Who's in charge of a court?
WUNGUNDIN: The judge.
DET S/CON OUTRED: The judge. Okay. And what can the judge do? What's the judge's job?
WUNGUNDIN: It's a judge. I dunno, man.
DET S/CON OUTRED: Okay. So, if - if someone goes to court, what can the judge do to them?
WUNGUNDIN: A sentence or give him time.
DET S/CON OUTRED: Yeah. So, they can go - send someone to prison, and they can judge if you are guilty or - or not guilty.
WUNGUNDIN: Yeah.
DET S/CON OUTRED: Okay. So, do you understand that this video could be played in court to help the judge or to - to assist the judge in determining whether you are guilty or not guilty?
WUNGUNDIN: Yep.
DET S/CON OUTRED: Okay. So, it's important that you understand that, um, you don't have to do this interview if you don't want. But if you do the judge can use it. Okay.
WUNGUNDIN: Yeah. I'll - I'll just do it.
DET S/CON OUTRED: All right. You happy he understands that?
DET S/CON WILKINSON: So, just - just to make doubly sure that you've understood everything, okay. If I asked you 10 questions, and one of those questions is, 'What colour is the sky?' Do you have to answer that question?
WUNGUNDIN: No.
DET S/CON WILKINSON: Do you have to answer any of my 10 questions?
WUNGUNDIN: No.
DET S/CON WILKINSON: How are you gonna tell Cameron and I if the - if we ask a question, and you don't wanna answer it? Wh -what are you gonna say to us?
WUNGUNDIN: I'm gonna say, 'No comment'.
DET S/CON WILKINSON: 'No comment'. Perfect. Okay. And, um, if at any stage things get a little bit too complicated or a bit tough, and you want some advice, what options do you have available? Who can you call?
WUNGUNDIN: Uh, it's my auntie.
DET S/CON WILKINSON: Your auntie.
WUNGUNDIN: Because [indistinct] she knows I'm here, I guess.
DET S/CON WILKINSON: And what about lawyers? Can you call a lawyer to get some help, if you want?
WUNGUNDIN: Yeah. If I need it.
DET S/CON WILKINSON: Yep. Okay. But we can't read your mind.
WUNGUNDIN: Yep. Yeah.
DET S/CON WILKINSON: So, if you think things are a little bit too complicated, and you want some help understanding what's going on, you need to let us know.
WUNGUNDIN: Yep.
DET S/CON WILKINSON: We're not here to trick you. We are not here to confuse you. You are the most important person in - in this room today.
WUNGUNDIN: Yep.
DET S/CON WILKINSON: So, if you don't understand something, please tell us.
WUNGUNDIN: Yeah.
Counsel for the accused submitted that at the point in time when the accused said 'Yep' to the question 'Do you want to exercise that right' (pages 6 and 7), the investigating officers should have stopped the interview and facilitated him speaking to a lawyer (in all likelihood the CNS).
At this point, it is instructive to deal with the issue of voluntariness.
Counsel for the accused in effect advanced the proposition that the admissions in the EROI were not voluntarily for the purpose of the exclusionary evidentiary rule as the accused did not understand that he did not have to say or do anything in that interview. In Luo the Court of Appeal held that this proposition is, as a matter of law, inconsistent with decisions of the High Court binding upon it.[55] The Court of Appeal specifically referred to the passage from McDermott which I have quoted at [37], commenting that the 'focus of that statement is on whether the will of the accused has been overborne or an inducement has been held out by a person in authority'.[56] The Court of Appeal then referred to the decision in Tofilau concluding:[57]
So, in Australian law, an accused person does not need to have understood that he or she has a choice as to whether or not to speak before a statement is taken to be voluntary. A failure by police to give a caution at all or a failure by an accused to understand the caution will be relevant to the exercise of the residual discretion. However, such failures do not of themselves render a confessional statement inadmissible by reason of being involuntary.
[55] Luo [70].
[56] Luo [71].
[57] Luo [73] - [75].
As with the BWC Video, in the present case there is no evidence or other material to suggest that the admissions in the EROI were obtained from the accused by anything resembling fear or prejudice. Nor of any hope of advantage exercised or held out by a person in authority. Nor is there any evidence or other material to suggest that the admissions in the EROI were obtained from the accused by anything resembling duress, intimidation, persistent importunity, or sustained or undue insistence or pressure. Counsel for the accused did not suggest that there was.[58] In coming to this conclusion, I have again taken into account the Anunga guidelines.
[58] Defence submissions [46].
The State has completely satisfied me that the admissions made by the accused in the EROI were voluntary.

Would it be unfair to the accused to admit the admissions in the EROI into evidence?

Rather, the fourth and fifth factors identified by counsel for the accused are of central relevance to the issue of whether it would be unfair to the accused to admit the admissions in the EROI into evidence.
Counsel for the accused ultimately accepted that, eventually, the accused appeared to understand the first limb of the caution, that he had the right not no answer any questions put to him by police.[59] In relation to the second limb, the issue is whether the accused demonstrated an understanding of the effect or consequence of answering any question put by police.[60]
[59] ts 52.
[60] EYO [69].

The accused:
(a)was told that the interview was being recorded (page 2);
(b)was told that if he did not understand anything he should tell the officer, who would try and rephrase what they said (page 4);
(c)did remember being told that he had the right to speak with a lawyer (page 6);
(d)accepted that when he first arrived at the station, the detectives phoned a lawyer, spoke to them, offered him the opportunity to speak to the lawyer, which he declined (page 7);
(e)was told he could speak to a lawyer on multiple occasions;
(f)when asked what a lawyer did, said 'helps';
(g)was told that 'they act for you and work in your best ... interest' to which he said 'yeah';
(h)was told (page 8):
DET S/CON WILKINSON: So, someone comes to us and tells us someone did something - - -
WUNGUNDIN: Yeah.
DET S/CON WILKINSON: - - - we investigate that. In … regards to you, a lawyer will act in your best interest, and make sure that we do our job properly. And that you know everything that you are entitled to while you're here at the police station.
WUNGUNDIN: Yep.
DET S/CON WILKINSON: Does that make sense?
WUNGUNDIN: Yeah
(i)was told (pages 8 and 9):
DET S/CON OUTRED: - - - If you do answer our questions, everything you do or say will be recorded by the camera …
WUNGUNDIN: Yep.
DET S/CON OUTRED: - - - and may be given in evidence. Do you understand that?
WUNGUNDIN: Yep.
(j)when asked how the interview was being recorded, said 'camera' (page 10);
(k)when asked where the video could be played, said: 'I dunno. At the courthouse' (page 10);
(l)when asked what happens at court, said: 'They decide 50/50 if you go in or stay out' (page 10);
(m)when asked who is in charge of a court, said: 'the judge' (page 11); and
(n)had the interaction quoted at [72].
On the other hand the accused:
(a)said 'he could not think back right now' to remember the cautions he was given when initially arrested (page 6);
(b)said that he wanted to exercise the right to speak to a lawyer (pages 6 and 7);
(c)said that he was 'not really sure about lawyers and whatever' (page 7);
(d)when again told he could speak to a lawyer, and that it was up to him, said: 'Yeah. I - I just do whatever you guys wanna do' (quoted in context at [70]);
(e)when asked what the caution meant to him could not answer (page 9);
(f)when asked if he had been through court before, said the last time was when he was 14 or 15 (page 11);
(g)when asked what a judge can do, said 'I dunno, man' (page 11);
(h)had the following interaction (page 12):
DET S/CON WILKINSON: How are you gonna tell Cameron and I if the - if we ask a question, and you don't wanna answer it? Wh - what are you gonna say to us?
WUNGUNDIN: I'm gonna say, 'No comment.'
DET S/CON WILKINSON: 'No comment'. Perfect. Okay. And, um, if at any stage things get a little bit too complicated or a bit tough, and you want some advice, what options do you have available? Who can you call?
WUNGUNDIN: Uh, it's my auntie.
DET S/CON WILKINSON: Your auntie.
WUNGUNDIN: Because [indistinct] she knows I'm here, I guess.
DET S/CON WILKINSON: And what about lawyers? Can you call a lawyer to get some help, if you want?
WUNGUNDIN: Yeah. If I need it.
DET S/CON WILKINSON: Yep. Okay. But we can't read your mind.
WUNGUNDIN: Yep. Yeah.
DET S/CON WILKINSON: So, if you think things are a little bit too complicated, and you want some help understanding what's going on, you need to let us know.
WUNGUNDIN: Yep.
In my view, taken as a whole, the transcript supports the inference that the accused demonstrated a sufficient understanding of the effect or consequence of answering any question put by police. The accused confirmed what was being recorded could be played at the courthouse, would be heard by the judge, who would use what was said to decide whether he was guilty or not guilty. It is the case that he had some difficulty getting to this position. However, in my view, the detectives were very methodical and respectful in ensuring that the accused ultimately understood the effect or consequence of answering any question put by police. The result was that it is evident the accused knew any answers he might give could be used against him in the proof of the offences with which was charged.[61]
[61] Contrast: REL [48].
The accused was repeatedly offered the opportunity to contact a lawyer. The explanation given as to the role of a lawyer was in my view both fair and comprehensible, in particular what was said at [94(h)].
I add to this the conclusions I have already reached that the admissions made in the EROI are both reliable and voluntary. I further add that I do not consider that there was anything resembling impropriety by the interviewing officers.
The following conclusion from the decision in Luo is apposite to the present application (applying equally to the second limb):[62]
Taken as a whole, the transcript supports the inference that the appellant understood at all material times that he did not have to answer police questions during the recorded interviews. Further, and significantly, the appellant did not give evidence either in the pre‑trial hearing or at trial to the effect that he did not understand the caution. There was no evidence before the trial judge sufficient to support the inference that, despite the appellant saying that he understood the caution, he did not actually do so. That is a fundamental problem for the appellant in the context of the residual discretion, where the onus of proving facts supporting the exercise of the discretion to exclude evidence falls on the appellant.
[62] Luo [103].
As with the BWC Video, the inference I draw from the EROI as a whole is that the accused wanted to accept responsibility for his actions the night before.
The accused has failed to establish, on the balance of probabilities, a sufficient factual basis to justify the exercise of the discretion to refuse to admit the EROI on the ground that it would be unfair to him to do so.

Would it be contrary to public policy to admit the EROI?

In the present case, as I have just mentioned, I do not discern anything improper in the conduct of the detectives who conducted the EROI. In my view, they went to some effort to make sure that the accused really understood both limbs of the caution. As I have already observed, they acted in a manner that was methodical and respectful. Again, they were polite and in no way was their behaviour overbearing. All the admissions made are, in my assessment, voluntary and reliable. There is no aspect of the conduct of the detectives which needs to be highlighted as inappropriate practice which ought to be discouraged.
The accused has failed to establish, on the balance of probabilities, a sufficient factual basis to justify the exercise of the discretion to refuse to admit the EROI Video on the ground that it would be contrary to public policy to do so.

Conclusion

The EROI is admissible. The State has satisfied me that the admissions made in it were voluntary. The accused has not satisfied me that I should exercise my discretion to exclude it.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LL
Associate
14 AUGUST 2023