Thomas v The State of Western Australia - [2008] WASC 104

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: THOMAS -v- THE STATE OF WESTERN AUSTRALIA [2008] WASC 104

CORAM: McKECHNIE J

HEARD: 6 & 7 MAY 2008

DELIVERED : 7 MAY 2008

PUBLISHED : 3 JUNE 2008

FILE NO/S: IND KUN 19 of 2008

BETWEEN: ASHLEY DAVID THOMAS
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law and procedure - Admission of record of interview - Whether voluntary - Careless breach of the Criminal Investigation Act 2006 (WA)

Legislation:

Criminal Investigation Act 2006 (WA), s 12, s 138, s 139, s 154, s 155
Criminal Procedure Act 2004 (WA), s 98

Result:

Video record of interview admitted

Category: A

Representation:

Counsel:

Applicant: Mr S Johns
Respondent: Mr K P Bates & Mr C G Astill

Solicitors:

Applicant: Aboriginal Legal Service (WA)
Respondent: Director of Public Prosecutions (WA)

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

O'Hara v Chief Constable of the Royal Ulster Constabulary (1997) 1 All ER 129

McKECHNIE J: The applicant ('accused') challenges the admissibility of the video record of interview in the exercise of the discretion on the basis that it was involuntary, or, alternatively it should be excluded and because it was obtained in contravention of the Criminal Investigation Act 2006 (WA). The accused was interviewed on 6 July 2007 so the provisions of the Act applied.

The circumstances of the accused's apprehension

Senior Sergeant Young and Sergeant Dennison both gave evidence on this issue. From the manner in which Dennison gave evidence and his long pauses for thought, it is clear that his recollection of the events is not well defined. As counsel for the accused aptly put it, it was in many ways another day at the office for him. His evidence therefore is of limited value to me.
On the other hand, I found that Young gave clear and direct evidence. She had been trained in the Criminal Investigation Act. She had just been posted to the Warmun Police Facility, taking up office on 1 July 2007. The apprehension of the accused, and another man, 'JM', was the first occasion on which she had exercised her powers under the Criminal Investigation Act. I find she took the trouble the night before to revise her knowledge of that Act.
The next morning she attended with Dennison at house 56 Middle Camp. There is an issue as to where the accused was actually located. Young says he was located at house 56. Dennison accepts the suggestion that the accused was walking between the houses and that is the accused's evidence. I think the accused is right but little turns on it because even if Young is mistaken on this aspect it does not affect my overall assessment of the credibility of her evidence.
She says she gave the accused his rights by saying:
I advised Mr Thomas that he was a person of interest for the inquiries being conducted by the detectives for Operation Barnham. Operation Barnham was a joint inquiry by the Kununurra detectives and the child protection squad in regard to child sex offences. I further advised him of his rights in that he may contact a lawyer, advise his family or a friend of his whereabouts and if he required medical treatment. (ts 14)
The accused, I interpose, agrees some of that was said but denies he was advised about his rights to a lawyer or contacting someone. It is clear that Young did not personally have any reasonable suspicion for arresting him. She had received a telephone call from Sergeant Evans at Halls Creek that asked her to bring the accused and JM to Halls Creek for interview.
The Criminal Investigation Act s 4 defines 'reasonably suspects':
For the purposes of this Act, a person reasonably suspects something at a relevant time if he or she personally has grounds at the time for suspecting the thing and those grounds (even if they are subsequently found to be false or non‑existent), when judged objectively, are reasonable.
Section 128(2) gives a police officer power to arrest a person for a serious offence on reasonable suspicion. This is a designated serious offence. The issue was examined in O'Hara v Chief Constable of the Royal Ulster Constabulary (1997) 1 All ER 129 and the powers there summarised by Lord Steyn.
The statement may be accepted with one important qualification. Unlike the legislation being considered in that case, the Criminal Investigation Act s 12 allows delegation of the performance of the function to another officer. The burden of Evans' evidence, which I accept, is in effect he had reasonable grounds to suspect that the accused may have committed sexual offences with young girls. I refer particularly to ts 61 and ts 62.
I consider that this was a delegable power and that he properly delegated it. I am also satisfied he ensured that the duty was performed in that Young delivered the accused for interview as an arrested suspect. I do not consider it is necessary under the delegation for him to ensure that every aspect of that delegation be performed.
The accused gave evidence as to the events leading to his apprehension. Even making allowances for the tendency of some Indigenous persons to agree with people in authority who put propositions to them, I cannot overlook his answers in cross‑examination. Moreover he maintains his denial about being advised as to his right to a lawyer and his right to communicate with a friend, something that Young said she told him. So he was not entirely compliant with cross‑examining counsel.
On the facts, I am satisfied on the balance of probabilities that Young arrested the accused as a suspect for his detention for the purpose of interview. I am also satisfied on the balance of probabilities she advised the accused of his right to medical treatment, to communicate with friends and to communicate with a lawyer.
She did not in terms, however, indicate clearly the offences he was suspected of committing. She did not indicate generally that he was required in relation to child sex offences. I do not consider that to be a complete statement as required under s 138A.
I have considered the accused's evidence and the evidence of Young and have reached the conclusion that on the whole of the evidence I prefer Young's evidence where it conflicts with that of the accused. I consider the accused's memory is not as clear as Young's testimony, having regard to her contemporaneous note.
The accused was conveyed to Halls Creek. At some time during the day at Halls Creek, Young said she noted the offence in the occurrence book. The Commissioner's Orders and Procedures Manual indicates sound practice - that when rights under the Criminal Investigation Act are given and not done on video, the accused should be allowed to read through and sign that he has been given those rights. This was not done.
While it is sound practice, however, its failure in this case does not cause me to alter my conclusion that the accused was, to use a phrase from American television, duly read his rights. I have examined the occurrence book in relation to the suggestion denied by Young that the book was written up at some later time to include the short passage. I do not consider the book displays any evidence that occurred.
It is true that the note in the occurrence book refers to the sections of the Act, not exactly what was said, but I find it a sufficiently contemporaneous account to cause me to accept the bulk of Young's evidence on the subject.
Subject to the question which I have raised about informing the accused of the charges, to which I will come later, dealing with the Criminal Investigation Act s 154 and s 155, I consider that the arrest was lawful.
When the accused was brought back to the station at Halls Creek, it does not appear that he was given any particular opportunity to call ALS, nor did he indicate a desire to do so. However, as I have found, he was advised of his right for a lawyer in the early stages at the time of his apprehension.
I turn to the video record of interview. It largely speaks for itself. The accused was educated to some degree and can read and write a little, he said, although I accept he has trouble in that respect. He is or was employed as a cleaner at Argyle.
I do not propose to refer to specific parts of the video because it is available there for others to assess if that becomes necessary. I have viewed it, read the transcript a number of times and just recently refreshed myself by again referring to the particular passages which counsel referred to on either side in the oral argument.
There are aspects of the interview which indicate that the accused may have been confused from time to time as to the use to which the video might be put but other aspects indicate that he did understand it could be used in evidence.
It appears common ground, and the accused has given this evidence, that he has no previous convictions and indeed that he has not been involved with the police in this respect before. This fact is important as he has limited experience of interview.
An interview is an evolving process. You can take questions and answers separately and out of the context of the evolution. Criticism can be made of some aspects of the video. However, taking the video interview as a whole, I consider on the balance of probabilities that it is fair and voluntary. I do not consider in context that there was improper pressure.
I include in that conclusion what is described by counsel as an exhortation by gesture and the passage immediately following to which counsel for the accused made reference. I have considered those, but it does not alter my general conclusion. Nor do I consider that the accused was uninformed about the general nature of the interview. It is always a question of what comes first in an interview, but taken as a whole I do not regard it as unfair.
The questions towards the end, both about the playing of the video to others and also about the use of force do raise questions as to the video, but I also have regard to the answers at page 38 and accept, as I have said, that the interview was taken by him at a time when he understood and understood also his right whether to speak or remain silent, and his choice.
I have taken into account the accused's evidence as to how he was feeling and what he was thinking. As I have said, he is a person who has previously had no contact with this aspect of policing. He was worried, he wanted to tell the truth, but I do not consider that he was misled by the detectives or pressured. Naturally, however, a person in his position would be intimidated by the very process and the more so when he did not have a lawyer with him. He also did not have a friend, but I am satisfied that was a conscious choice on his part.

Criminal Investigation Act - contravention

I have said before there is an aspect of the earlier matter which I consider to be a contravention of the Act. That brings into play s 154 and s 155. If there is a contravention of the Act which causes evidence to be obtained, then the evidence is inadmissible unless under s 155 the court allows its admission. There are three aspects which concern me. The first is, as I have said, I do not consider that under the provisions of s 138(2)(a) the accused was informed of the offence or offences which he was suspected of having committed. He was informed in general terms, but I find at the time of arrest he should have been informed in more specific terms.
The second matter is that the accused was placed, it would appear, in the lockup. An arrested suspect who is detained must be detained in the company of an officer and not in a lockup or other place of confinement, unless the circumstances make it impracticable to do so. There is no evidence before me that the circumstances made it impracticable to do so. I find that he was improperly detained in the lockup for a period, instead of being detained with an officer.
The third aspect is the question of access to a lawyer. As I have said, I am satisfied that Young advised him of his right to obtain legal advice, and the accused did not exercise that right immediately. He was not reminded of the right when he reached Halls Creek, nor did he ask for a lawyer. On Detective Sergeant Doyle's understanding of the Criminal Investigation Act, which was a wrong understanding, he did not consider there was at that stage a requirement to advise people. This is the aspect that has caused me the most concern.
I consider that the aspect in relation to s 138(2)(a) is not of a particularly serious nature because, at the time of the interview, the accused knew what the interview was about and was given at least general information by Young, even though it was not sufficient. A breach of this right would not cause me to refuse to admit the evidence: s 155. Nor do I consider being placed in the lockup itself, in this case, a matter that would make it undesirable to admit the evidence.
In saying that, I do not overlook for a second the important point made by Mr Johns as to the cumulative nature of the loss of procedural rights. I keep that very clearly in mind. It is not simply a question of isolating each one and saying that is unimportant; I have kept in mind the accumulating nature.
It is the issue about the legal advice that I have considered but, in the end, my concerns are not such as to cause me to reject the video record of interview on this ground. I find there was an initial offer to seek legal advice which the accused, for whatever reason, did not take up.
I have taken account of s 155(3).

(a) Any objection to the evidence

Clearly there is an objection to the evidence being admitted.

(b) The seriousness of the offence in respect of which the evidence is relevant

The seriousness of the offence is judged I think only in part by the maximum penalty. It has to be the seriousness of the particular offence in the scheme of things. That is hard to weigh because of course any interference sexually with young girls is by nature serious. On the other hand, having regard to decisions of the Court of Appeal, the age of the accused and his prior good character if he was ultimately convicted, it is, as I say (without being bound but merely to decide the seriousness) unlikely that he would receive a term of imprisonment to be served immediately, so the offence while serious is certainly not at the top of the range.

(c) The seriousness of any contravention of this Act in obtaining the evidence.

I do regard the failure to fully afford the accused his rights, they being partly afforded, as serious. I do not regard that as intentional or indeed in all the circumstances as quite reckless. 'Careless' would be a better way to put it. I do not consider that it arose from an honest and reasonable mistake of fact.

(d) The probative value of the evidence

Clearly the probative value of the evidence is high. It represents a complete confession. That itself does not justify its admission but there are the other reasons I have outlined.

(e) Any other matter the court thinks fit

I consider having regard to the accused's answers on oath at the directions hearing and in the record of interview that it is a reliable document in any event.

Conclusion

I have also revisited the residual discretion, if there is one, in relation to the admission of evidence. I think there is in relation to a video record of interview. The discretion remains but in any event the answer is unchanged. Notwithstanding the contraventions of the Act, I consider it desirable that the confession, which I hold on the balance of probabilities to be voluntary, be admitted.