Undalghumen v The State of Western Australia - [2024] WASC 468

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   UNDALGHUMEN -v- THE STATE OF WESTERN AUSTRALIA [2024] WASC 468
CORAM:   WHITBY J
HEARD:   21 - 23 OCTOBER 2024
DELIVERED          :   24 OCTOBER 2024
PUBLISHED           :   6 DECEMBER 2024
FILE NO/S:   INS 57 of 2023
BETWEEN:   MARYANNE UNDALGHUMEN
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law - Admissibility of police interview with accused - Whether interview voluntary - Whether evidence should be excluded in exercise of unfairness discretion - Instructions given by accused to Custody Notification Service of the Aboriginal Legal Service - Anunga guidelines

Legislation:

Criminal Code Act Compilation Act 1913 (WA)
Criminal Investigation Act 2006 (WA)

Result:

Police interview inadmissible

Category: B

Representation:

Counsel:

Applicant	:	F M Hugo
Respondent	:	J G Nicholls & G A Horstmann

Solicitors:

Applicant	:	Tehan Legal
Respondent	:	Director of Public Prosecutions (WA)

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

Collins v The Queen (1980) 31 ALR 257
EYO v State of Western Australia [2019] WASCA 129
Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199
Kelly v The State of Western Australia [2017] WASCA 221
MacKenzie v The Queen [2004] WASCA 146
MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512
McDermott v The King [1948] HCA 23; (1948) 76 CLR 501
Pearce v The State of Western Australia [2014] WASCA 156
R v Anunga (1976) 11 ALR 412
R v Ireland [1970] HCA 21; (1970) 126 CLR 321
R v Lee [1950] HCA 25; (1950) 82 CLR 133
R v Swaffield [1998] HCA 1; (1998) 192 CLR 452
The State of Western Australia v Cox [2008] WASC 287
Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396
Van der Meer v The Queen [1988] HCA 56; (1988) 62 ALJR 656
Wright v The State of Western Australia [2010] WASCA 199

WHITBY J:

Maryanne Undalghumen, the accused, is charged with one count that, on 15 July 2023, she murdered Nancy Unghango contrary to s 279 of the Criminal Code Act Compilation Act 1913 (WA) (Criminal Code) and one count that, on the same date, she unlawful wounded Gaylene Ann Undalghumen in circumstances of aggravation contrary to s 301(1) of the Criminal Code. The accused pleaded not guilty to those charges and the trial was listed to commence in Kununurra on 10 November 2024.
By application dated 3 September 2024, the accused seeks a ruling that the electronic record of interview conducted between her and the police on 16 July 2023 (interview) is inadmissible because her participation in the interview was not voluntary and the evidence was improperly obtained under s 154 of the Criminal Investigation Act 2006 (WA) (CIA). Alternatively, the accused submits that the interview ought be excluded on the basis of unfairness to her and/or on the basis of the court's public policy discretion.
On 21 to 23 October 2024, a voir dire was held to determine the admissibility of the interview. The State of Western Australia (State) maintained that the interview was admissible at trial as it was voluntary and there were no discretionary grounds upon which it should be excluded.
At the conclusion of the voir dire, I ruled that the interview was inadmissible. I found that the interview was involuntary. I indicated that I would provide detailed reasons at a later date. These are those reasons.

Background facts

The victims are the accused's first cousin, Nancy Unghango, and her sister, Gaylene Undalghumen. Given there are two victims and several witnesses, some of whom share the same last name, I will refer to individuals by their first names with no disrespect intended.
The facts giving rise to the charges as alleged by the State in the statement of material facts are as follows.
On the morning of Saturday 15 July 2023, the accused and Nancy were socialising and drinking alcohol with other family members in the public open space by the water park on Coolabah Drive in Kununurra. The other family members present included Hilda Undalghumen and her 8‑month‑old daughter Wasunnah.
The accused took Wasunnah on a walk to a nearby address. Upon her return to the park, the accused was met by Nancy and Hilda who were both immediately aggressive towards the accused for taking Wasunnah away.
The accused was assaulted by Hilda and was also threatened by Hilda with a broken bottle. Hilda then threw the broken bottle on the ground. The accused did not suffer any injuries.
The group then separated but continued to socialise in close vicinity with each other. At some point later the accused located the broken bottle from the ground and concealed it under her leg as she sat on the grass.
At about 9.35 am, the accused was again approached by Hilda who began to antagonise her. This caused the accused to lose her temper and take possession of the broken bottle she had concealed under her leg. Given that Hilda was carrying Wasannuh in her arms at the time, the accused turned her attention to Nancy and stabbed her in the neck causing a 3‑cm laceration and major bleeding.
The accused then chased Gaylene while holding the broken bottle in her right hand. The accused struck Gaylene to the left side of her head with a single downward blow. Gaylene ran to the Kununurra Police Station and alerted police to the incident between the accused and Nancy.
The accused returned to Nancy who was lying on the ground bleeding from the neck. The accused sat with Nancy and cradled her in her arms until the police arrived.
When the police arrived, the accused told a police officer as she pulled away Nancy's hoodie which was covering her collarbone to reveal a 3‑cm laceration, 'I did that one hole'.
Police attempted resuscitation on Nancy, however she died at the incident location. The accused was arrested at the scene on 15 July 2023 at approximately 9.50 am.
At 5.37 pm on 16 July 2023, two detectives commenced the electronically recorded interview of the accused. The interview concluded at 6.58 pm. The accused was charged with murder at 8.55 pm on 16 July 2023.

Grounds for the application

The accused objects to the admissibility of the interview on the following grounds:
(1)the interview was not voluntary;
(2)the evidence was improperly obtained under s 154 of the CIA;
(3)the court ought to exclude the interview on the basis of the fairness discretion; and
(4)the court ought to exclude the interview on the basis of the public policy discretion.
The accused says the following contentions are relevant to these grounds:
(1)despite the accused declining to participate in the interview, the interviewing officers proceeded with the interview;
(2)the second limb of the caution was not properly administered; and
(3)the accused was detained by the police contrary to the CIA.

The interview

On 16 July 2023 at 5.37 pm, the accused participated in an electronic record of interview where, amongst other things, she made admissions that she was trying to stab the victim in the shoulder. The accused denied assaulting Gaylene. The interview was conducted by Detective Senior Constable (DSC) Jonathan Symons of Homicide Squad and DSC Tegan Mills of Homicide Squad.
I have watched the electronic recording of the interview several times. The following exchanges occurred during the interview which are relevant to this application.
DSC MILLS: All right. Okay. Now, Mary, do you agree that you've been advised that you're under arrest on suspicion of murder, and you have the right to speak with a lawyer or speak with a friend or relative to advise them of your whereabouts?
ACCUSED: Yes.
DSC MILLS: Yep. And I'm of the understanding that you've spoken with a lawyer twice since you've been with us in police custody. Yeah?
ACCUSED: Yes.
DSC MILLS: Okay. And your family members know where you are?
ACCUSED: Yes.
DSC MILLS: Yep. Okay. All right. All right. Mary, I wish to talk to you about the alleged murder that occurred on the Saturday, the 15th of July 2023. Before I do, however, I advise you are not obliged to say anything unless you wish to do so, and anything you do say or do will be recorded and may be given in evidence. You can answer some questions and not others. Do you understand that?
ACCUSED: What if I don't wanna answer the whole lot?
DSC MILLS: Yeah, you don't have to answer any of my questions.
ACCUSED: I don't want to.
DSC MILLS: Okay. So that's why I say this to you now. Okay?
ACCUSED: Yes.
DSC MILLS: So this is your chance, I can ask you some questions and if you don't want to answer them, you tell me no comment.
ACCUSED: Yes.
DSC MILLS: Okay? So can you just tell me, do you have to answer my questions?
ACCUSED: No.
DSC MILLS: No. If I ask you five questions, how many of those questions do you have to answer?
ACCUSED: Nothing.
DSC MILLS: Okay. And where can this recording be shown?
ACCUSED: At the court.
DSC MILLS: At the court. Okay. You happy with that?
DSC SIMMONS: Yeah.
DSC MILLS: Yep. Okay. All right. Now, Mary, as well as - I obviously mentioned that I want to speak to you about the murder, okay, that we're alleging happened yesterday. Um, I do also have to advise you that you are also under arrest for a unlawful wounding. Okay? So we want to talk about the incident that happened yesterday morning where we're saying that someone got wounded and someone has died. Okay? So it's two different people, and two offences. Do you understand that?
ACCUSED: Yes.
DSC MILLS: Yep. Okay. So, what can you tell me about what happened yesterday morning?
Oh, hang on a second. We'll just pause the video.
DSC SYMONS: One second. No, it's okay [indistinct]
DSC MILLS: We'll keep the video running. Okay? But I'm not gonna talk to you, and we'll keep the video on.
ACCUSED: It was just a family thing, you know, an argument.
DSC MILLS: Yep. We won't talk about it just yet. Okay? We'll wait until John comes back.
ACCUSED: Yeah.
(my emphasis added)
The detectives then asked the accused if she would like a friend to sit with her during the interview. The accused said that she did and gave them the names of two people. The police paused the interview to attempt to contact those people. Neither were available. The detectives then recommenced the interview and the following exchange occurred.
DSC MILLS: Okay? And we obviously had a conversation about, um, some - some people are upset with you, so you are a bit limited as to who can come and sit with you today.
ACCUSED: Yeah.
DSC MILLS: Yeah. Um, so I did try for both of those, but unfortunately neither of those are gonna work. So now it's up to you, if you are happy to sit with us and - and speak to us about what happened without a friend here.
DSC SYMONS: Like we said earlier, there's - there's - there's no tricks. This is just an opportunity for you to tell us your story. Everyone else has been telling their side of what's happened. We just wanna, if you want to, get your side.
DSC MILLS: So are you happy to sit with us and - and speak to us without a friend?
ACCUSED: Yeah.
DSC MILLS: Yeah. Okay. All right. And Mary, do you agree that when the video has been off, the only things we've spoken about were Neil and Chantel?
ACCUSED: Yes.
DSC MILLS: And then I explained to you we'd come back up here, put the video on and I'd tell you what had happened with that.
ACCUSED: Yes.
DSC MILLS: Yep. Okay. So Mary, like I explained before, we'd like to talk to you about what happened yesterday morning and hear what your side of the story is of what happened.
ACCUSED: Well, me and Melissa Martin, we took that little girl relation that - my little granddaughter - - -
(my emphasis added)
The accused then proceeded to answer questions asked by the officers. At times she volunteered information unprompted. After this point in time in the interview, the accused did not refuse to answer any of the questions asked by the detectives during the interview. During the interview, the accused made admissions to stabbing Nancy.
At the end of the interview the following exchange occurred:
DSC MILLS: Yep. Okay. All right. So I've just got some final questions for you. Okay, Mary? And then we finish up. Okay. So, er, okay, Mary, has this interview been conducted of your own free will?
ACCUSED: (NO AUDIBLE REPLY)
DSC MILLS: Do you understand what that means?
ACCUSED: No.
DSC MILLS: Okay. Has it - have we forced you to - to speak to us today?
ACCUSED: In a way, yes.
DSC MILLS: Okay. Why do you say that?
ACCUSED: Because I didn't wanna say anything.
DSC MILLS: Okay. Remember at the beginning I said you don't have to talk to us and if you - - -
ACCUSED: Yeah.
DSC MILLS: - - - don't want to answer my questions you say no comment.
ACCUSED: No comment, yeah. I don't know.
DSC MILLS: Okay. But did - did I say that you have to answer my questions today?
ACCUSED: Yes, but I said no too.
DSC MILLS: Okay. I never said that you had to answer my questions.
ACCUSED: No comment.
…
DSC MILLS: Okay. Do you have any complaints about how we've treated you today?
ACCUSED: Yes.
DSC MILLS: Okay. What - what's your complaint?
ACCUSED: I just didn't want to do the interview and sitting in here.
DSC MILLS: Okay.
ACCUSED: I just wanted to stay in the cell and sleep, you know?
DSC MILLS: Okay, 'cause you never said that to me.
ACCUSED: Yeah, I know and I should have said that.
DSC MILLS: Okay.
ACCUSED: 'Cause I'm feeling the thing, you know.
DSC MILLS: Okay. All right.
ACCUSED: No good.
DSC MILLS: Yeah, you're a bit upset at the moment. Okay. All right.
DSC SYMONS: Obviously, um, when we've come in, um, and we've - we've gone through everything and we've talked about, um, your rights and we've given you the, um, the caution, we said the caution as we do to everyone, but then, uh, Teagan's broke it down and checked your understanding quite thoroughly, and you understood you didn't have to answer any of our questions. I remember Teagan asking if she asked you five questions, how many did you have to answer? You said nothing, none. Um, and obviously we explained it could be used as evidence and I think Teagan, I recall, were even saying if you don't want to answer the questions, you can just say no comment. And then we just asked you what's gone on and - and you've provided us the account of - of what's happened.
ACCUSED: So from now, like, we put - you already got my statement. What will happen then?
DSC MILLS: This recording can be used as evidence. Okay? It can be used in court and lawyers and - and that will decide whether they can - whether it can be used now. Okay?
ACCUSED: Yes.
(my emphasis added)
The interview concluded at 6.58 pm.

The voir dire

The State called the following witnesses to give evidence at the voir dire:
(1)DSC Steve Waddell of Kununurra Detectives Office;
(2)DSC Jonathan Symons of Homicide Squad;
(3)Sergeant Tegan Mills, formerly DSC Mills, of Homicide Squad;
(4)Sergeant Dave Murray, formerly DSC Murray, of Homicide Squad; and
(5)Detective Senior Sergeant (DSS) Stephen Cleal of Homicide Squad.
The State tendered the statement of evidence of First Class Constable (FCC) Jarrod Mann at the voir dire.[1]
[1] Exhibit 30.
The defence called Ms Ann‑Geanette Bass from the Custody Notification Service (CNS) of the Aboriginal Legal Service (ALS) to give evidence at the voir dire.
I turn to summarise the evidence that is relevant to the application.

FCC Mann

The following facts are taken from FCC Mann's statement of evidence.
At around 9.55 am on 15 September 2023, shortly after the accused had been arrested at the scene, FCC Mann, in the sally port of the Kununurra Police Station, issued the accused with the police caution. FCC Mann then asked the accused 'If I ask you 10 questions how many do you have to answer?' The accused said 'none'. FCC Mann then asked the accused 'if you answer any of my questions where can I use it?' The accused said 'in court'. FCC Mann then gave the accused her arrested suspect rights pursuant to s 137 and s 138 of the CIA.
FCC Mann then escorted the accused to the custody area at Kununurra Police Station. While the accused was in the custody area, FCC Mann asked the accused 'If I ask you 10 questions how many do you have to answer?' The accused said 'none'. FCC Mann asked the accused 'if you answer any of my questions where can I use it?' The accused said 'in court' and pointed towards the court house. FCC Mann repeated the arrested suspect rights to the accused.
While FCC Mann was advising the accused of her rights, the accused said to him 'Hilda Undalghumen booted me in the head' and words to the effect that she was looking after Hilda's baby all night and was booted by Hilda before Hilda ran off with her baby. The accused told FCC Mann she did not require medical attention and said words to the effect that she just had the glass that Hilda broke.
At approximately 10.00 am, in the custody area of the police station, FCC Mann covered the accused's hands in bags and taped them up.
At approximately 11.05 am, FCC Mann conducted a preliminary breath test on the accused, and she returned a reading of 0.179.

DSC Waddell

DSC Waddell gave evidence at the voir dire. His statement of evidence dated 17 July 2023, which he prepared from notes he made contemporaneously with his interactions with the accused, was also tendered as evidence.[2] His evidence was as follows.
[2] Exhibit 1.
At approximately 10.20 am, the accused and DSC Waddell met in a room at the police station, which he referred to as the 'charge room'. DSC Waddell gave evidence that, during that meeting:[3]
(1)the accused appeared to be intoxicated - her eyes were glassy and glazed but, in his view she was not heavily intoxicated, as she was not unsteady on her feet or having trouble following a conversation;
(2)the accused said words to the effect 'I'll tell you what happened'; and
(3)he told the accused that she would have an opportunity to do that later.
[3] ts 34.
At approximately 11.20 am, DSC Waddell met with the accused in the police interview room. DSC Waddell gave evidence that during this meeting:[4]
[4] ts 38 ‑ 42.
(1)he advised the accused that she was suspected of committing the offence of murder;
(2)he cautioned the accused and advised her of her right to contact a lawyer and to contact a friend or relative to let them know where she was;
(3)the accused said she wanted to tell him her side of the story;
(4)he said to the accused that she would have that opportunity, but it was not going to happen at that point in time;
(5)the accused was still glassy eyed and appeared intoxicated. He was aware that she had been breath tested at 11.05 am and returned a reading of 0.179;
(6)at around 11.27 am, he contacted the CNS and spoke with Ms Emma Field and told Ms Field the accused's details and why she was at the police station;
(7)he handed the phone to the accused, the accused then spoke with Ms Field while he stepped out of the charge room;
(8)after the accused had finished speaking with Ms Field, she handed the phone back to him. Ms Field advised him of the accused's health issues and medication she required; and
(9)the phone call with Ms Field finished at 11.47 am.
Following the accused's telephone call with the CNS, the accused was taken to the Kununurra hospital for an assessment in order to receive her medication.
On 15 July 2023 at 12.16 pm, CNS sent DSC Waddell an email (First CNS Email) in which CNS advised that the accused did not wish to participate at all in any police interview, that she did not wish to answer any police questions and that she did not wish to be taken into the interview room. [5]
[5] Exhibit 2.
At 12.21 pm on 15 July 2023, DSC Waddell forwarded the First CNS Email to DSS Cleal with the message 'Boss, just for info of IO and suspect manager'.[6] DSS Cleal was the senior investigating officer and supervisor of the team assigned to this investigation. 'IO' is an acronym for Investigating Officer. The 'suspect manager' is the police officer who is responsible for managing the suspect and whose role includes conducting any formal record of interview if the accused is willing to participate.[7]
[6] Exhibit 3.
[7] ts 47.

In examination‑in‑chief, DSC Waddell gave evidence that, in his past dealing with CNS, he would get an email of this nature for nine out of 10 Indigenous persons. He said that if the person was charged with a serious offence, CNS would send an email worded similar to the First CNS Email every time.[8] He said that paragraphs 1, 2, 3, 4 and 6 would appear in the majority of emails received from CNS, the emails being tailored to the particular suspect.[9] In cross‑examination, DSC Waddell said that a variation on paragraph 5 would usually appear in CNS emails.[10]
[8] ts 50.
[9] ts 51.
[10] ts 51.
In cross‑examination, DSC Waddell also gave evidence that at 12.48 pm on 15 July 2023, he had a telephone conversation with DSS Cleal and provided him with an update on the accused. DSC Waddell recorded in his notes that the 'interview would proceed once fair/voluntary'. He gave evidence that 'fair/voluntary' was a reference to the accused being intoxicated and having used cannabis that day and there needed to be time for the effects of those substances to wear off.[11]
[11] ts 82.
At about 2.57 pm on 15 July 2023, DSC Waddell met the accused in the police interview room. He discussed with the accused the process of completing non‑intimate forensic procedures. The accused's consent to those procedures was video recorded.[12]
[12] Exhibit 15.
At about 6.37 pm on 15 July 2023, DSC Waddell met with the accused and discussed conducting an electronic record of interview (EROI). In examination‑in‑chief, DSC Waddell said that the accused said she did not want to speak that night as she was too tired but that she would speak to him in the morning. DSC Waddell said that he did not commence the interview and returned the accused to her cell so that she could sleep. In cross‑examination, DSC Waddell gave evidence that his contemporaneous notes recorded that the accused said she would speak to police tomorrow 'after speaking with her lawyer'.[13]
[13] ts 83.
At about 8.00 am on 16 July 2023, DSC Waddell met with the accused in the charge room. He asked the accused if she was willing to participate in an EROI. The accused requested to speak with the CNS that morning, and DSC Waddell facilitated this at around 9.10 am on 16 July 2023.
In cross‑examination, DSC Waddell said that he spoke with a lawyer called Ginny from CNS and that she indicated to him that she wanted to ensure the CNS email that was addressed to him was forwarded to the IO.[14]
[14] ts 86.
The accused then spoke with a lawyer from CNS over the telephone. At the conclusion of that call, the accused told DSC Waddell that she did not want to participate in an EROI and she would not go into the interview room.[15] DSC Waddell said that this was the first time the accused had personally indicated to him that she refused to participate in an interview.[16]
[15] ts 86.
[16] ts 86.
DSC Waddell gave the following evidence in cross‑examination:[17]
I would … in every instance that I received that email [from CNS], I would still ask the accused, or the suspect, as it may be at the time, as essentially, it's their right to receive the advice. But quite often it's the case that I don't find that to be consistent with what the suspect is telling us. So in - it's my practise, rather, and that of many others, to - to have that conversation with - with the person themselves. Obviously, if they refuse to talk, or there's … something else going on, then it may be … a matter that we reassess. But in all instances, I will … listen to the suspect themselves in order to gain an idea of what their view and their feeling is at the time.
[17] ts 87.
At 9.44 am on 16 July 2023, DSC Waddell created a post about this in the Microsoft Teams (Teams) chat that had been created with the Homicide Squad team of detectives who had been allocated to the case. The post said:[18]
(SM) SUSPECT NOT WILLING TO INTERVIEW OR GO INTO INTERVIEW ROOM
9:10 hrs - DS Fairlie / DSC WADDELL met with suspect who again requested to speak with lawyer. CNS contacted and spoken to suspect.
Following the call, it was explained investigators will speak with her on video. Suspect declined, stating she does not want to do an interview. Further, she requested to be taken back to her cell and said she was told she doesn't have to go into the interview room if she doesn't want to.
Nil other health/welfare concerns.
Suspect returned to cell - to be spoken to later today.
(Teams chat post)
[18] Exhibit 4.
DSC Waddell does not recall telling the accused at this time that homicide detectives would speak with her later.
DSC Waddell confirmed that three persons, at an unknown time or times, acknowledged the Teams chat post by use of a 'thumbs up' symbol.[19]
[19] ts 63.
At around 12.10 pm, homicide detectives arrived at the Kununurra Police Station from Perth. DSC Waddell attended a briefing at 12.32 pm, which lasted for approximately 30 minutes to 1 hour. DSC Waddell spoke about the content of the Teams chat post (as opposed to the Teams chat post itself) and the First CNS Email at this meeting.[20]
[20] ts 74.
On 16 July 2023 at 3.08 pm, Ms Ginny Rabeling of CNS sent DSC Waddell and Detective Murray an email confirming that the accused did not wish to participate at all in any police interview (Second CNS Email).[21]
[21] ts 75; Exhibit 6.
DSC Waddell said he did not take any action in response to that email, as he considered it was a matter for Detective Murray.[22] DSC Waddell did not forward the Second CNS Email to anyone.[23]
[22] ts 75 ‑ 76.
[23] ts 76.
DSC Waddell confirmed that he received a further email from Ms Rabeling from CNS at 3.50 pm on 16 July 2023 containing a correction to dot point 7 in the Second CNS Email (Third CNS Email).[24] He did not do anything in relation to the Third CNS Email.[25]

DSC Symons

[24] Exhibit 7.

[25] ts 77.

DSC Symons gave evidence at the voir dire. His evidence was as follows.
DSC Symons arrived at the Kununurra Police Station on 16 July 2023 at around 12.10 pm.

DSC Symons said that the officers who 'liked' the Teams chat post by giving it a 'thumbs up' were police officers Cleal, Murray and Mills.
In cross-examination, DCS Symons said that he did not see the Teams chat post or the First, Second or Third CNS Emails (CNS Emails) at any time before or after the interview. He said that he was present at the briefing when the fact that the accused had declined to participate in an EROI was discussed.

Sergeant Mills

Sergeant Mills' evidence at the voir dire was as follows.
Sergeant Mills arrived at the Kununurra Police Station on 16 July 2023 at around 12.10 pm. She travelled by commercial flight which left Perth at approximately 9.00 am. Sergeant Mills was allocated as the suspect manager for the accused.
Sergeant Mills said she would have checked the Teams chat and seen the Teams chat post after she arrived in Kununurra and had phone reception.[26]
[26] ts 124.
Sergeant Mills recorded in her contemporaneous notes that the accused had refused to participate in an interview on two occasions - at 7.00 pm on 15 July 2023 and at 7.45 am on 16 July 2023.[27] In relation to the latter refusal, Sergeant Mills' notes recorded:[28]
16 July, woke and spoken to, requested lawyer, refused interview, requested to go back to cell.
[27] ts 124.
[28] ts 125.
During the briefing on 16 July 2023 which commenced at 12.32 pm, Sergeant Mills became aware that, on the Saturday night before police had arrived in Kununurra, the accused had advised that she wanted to tell police her side of the story, but was too tired and did not wish to be interviewed at that particular time.[29]
[29] ts 125.
When questioned about an email sent on 16 July 2023 at 3.12 pm from Sergeant Murray to herself and DSS Cleal which forwarded the CNS Emails,[30] Sergeant Mills said she was unable to say whether she had seen that email before or after the interview.[31] Sergeant Mills said that she was focussed that afternoon on preparing for the interview by reviewing evidentiary material.[32]
[30] Exhibit 10.
[31] ts 127.
[32] ts 127 ‑ 128.
Sergeant Mills gave the following evidence in relation to her first meeting with the accused:[33]
(1)she and DSC Symons first met the accused in her cell in the Kununurra lock‑up moments before the interview;
(2)she and DSC Symons said the following to the accused:
I'm Detective Senior Constable Mills. This is Detective Senior Constable Symons from the Homicide Squad. We're going to talk to you about what happened yesterday. You want to just come with us? We're going to go upstairs.
(3)the accused appeared willing and followed them with no complaint or objection.
[33] ts 129 ‑ 130.
The interview commenced around 5.35 pm and was paused at 5.40 pm so that enquiries could be made to see whether the interview friends requested by the accused could be located and were appropriate. The accused was returned to her cell during that time.
The interview resumed at 5.57 pm and Sergeant Mills informed the accused that neither interview friend was suitable. In response to the question as to whether she was happy to continue the interview without an interview friend, the accused said yes.
Sergeant Mills said she did not discuss the accused's previous refusal to participate in an interview communicated to DSC Waddell because:[34]
I was just treating it - I - I conducted that interview as I would normally and covered off on everything that I'm required to do in an interview, and I - I felt that I - I essentially did that by doing what I did in an interview, rather than actually discussing an interaction that I wasn't involved in. There are various reasons why someone might decline to speak to someone. That wasn't my interaction with her, and so I took everything on face value with my interactions with her and went through things like I would with anyone that I deal with from scratch.
[34] ts 134.
Sergeant Mills said she did not raise the CNS Emails or the content thereof with the accused at the start of the interview because:[35]
My understanding is this is always the same advice that everyone that is in contact with CNS receives. I was aware that she had previously indicated her willingness to speak with police, and these emails have come through after that, starting - sorry - prior to that, stating otherwise. So the accused has clearly changed their mind on at least one, maybe two occasions, as to her willingness to speak to police by the time that I had indicated that I wanted to speak to her.
[35] ts 135.
Sergeant Mills said that the first nine paragraphs of the First CNS Email and the Second CNS Email appear to be almost identical in the instructions compared with other CNS emails that she had seen in relation to other suspects.[36]
[36] ts 137.
In relation to whether it was appropriate to interview the accused in light of the CNS Emails, Sergeant Mills gave the following evidence:[37]
Mr Nicholls: Why did you consider it appropriate to attempt a formal interview in those circumstances where there had been expressed unwillingness, at least at one point, to participate in an interview and there had also been these CNS emails?
Sergeant Mills: Well, in my view, in fairness to the accused. If - to put her on video and give her the opportunity to either answer questions or decline to answer questions, and then it's recorded on video one way or the other. So had she declined to answer questions, then I would have ceased the interview then, and it would have gone no further. But for me to do my job properly was to put her on interview, go through the caution, and put the allegation to her for fairness to herself, knowing what the actual allegation is and give her that opportunity to either answer my questions or decline.
Mr Nicholls: Do you consider yourself under an obligation to invite a suspect in a serious case to partake in a formal interview?
Sergeant Mills: I feel like I wouldn't be doing my job properly if I didn't, especially when it's something as serious as murder.
[37] ts 138.
Sergeant Mills gave evidence that she was bound to conduct the interview in accordance with the CIA and police policy but that she was not bound to follow the assertions in the CNS Emails.[38]
[38] ts 138.
In cross‑examination, Sergeant Mills was questioned about the exchange between herself and the accused at the commencement of interview. Sergeant Mills' evidence was:[39]
[39] ts 145 ‑ 146.
MS HUGO: Sergeant Mills, when a suspect says words to the effect of I don't want to answer any questions, what is your understanding of what you are permitted to then do?
SERGEANT MILLS: Well, at that time, I was getting her understanding of the caution. So, my understanding is that I can ask a question. In my mind I hadn't started asking her questions in relation to the allegation. And so, when I did ask that question, and she answered, then, I believed I was free to continue asking questions. If she had have declined to answer that question, then I would not have continued.
MS HUGO: Did you consider the words that she spoke in relation to - and I will use them specifically - what if I don't want to answer the whole lot? Did you consider that to be a refusal to participate in an interview?
SERGEANT MILLS: No.
MS HUGO: So, you didn't consider the words, what if I don't want to answer the whole lot, a refusal to participate in an interview?
SERGEANT MILLS: No. I didn't.
MS HUGO: Did you consider those words a refusal to answer the whole lot?
SERGEANT MILLS: Yes. I considered it her seeking clarification that she may choose to answer some questions and not others.
MS HUGO: And then, when she said, I don't want to, did you consider that a confirmation that she didn't want to answer the whole lot?
SERGEANT MILLS: No. Sorry. Yes, that she may not want to answer all of the questions.
MS HUGO: And you have used the word, may, there?
SERGEANT MILLS: Yes.
MS HUGO: So, your evidence is when she said, what if I don't want to answer the whole lot, ‑ ‑ ‑?
SERGEANT MILLS: Yes.
MS HUGO: I don't want to, you considered that that meant she may not want to answer the questions. Is that correct?
SERGEANT MILLS: All of the questions. So obviously, part of the caution is you may choose to answer some questions and not others. So that was her confirming that she did not want to answer all of the questions, but that's not her saying she doesn't want to answer any of the questions.

Sergeant Murray

Sergeant Murray gave the following evidence at the voir dire.
He arrived at the Kununurra Police Station on 16 July 2023 at around 12.00 pm. He travelled by commercial flight which left Perth at approximately 9.00 am. He was allocated the role of investigating officer in relation to this job.
His role, as the investigating officer, was to receive regular briefings and information updates from the strategy managers in relation to their field, to collate information and review and make decisions based on information regarding the progression of the investigation. Sergeant Murray reported to the senior investigating officer, DSS Steven Cleal.[40]
[40] ts 154 ‑ 155.
As part of his role as investigating officer, Sergeant Murray seized CCTV footage of the accused in the Kununurra Police Station at various times on 15 July 2023.[41]
[41] Exhibit 11.
At around 12.30 pm, Sergeant Murray attended a briefing with the Homicide Squad at the Kununurra Police Station. The topic of the accused refusing to participate in an interview with the local detectives was mentioned at the briefing.[42]
[42] ts 156, 159.
Sergeant Murray was added to the Teams chat for this matter on 15 July 2023. He saw the Teams chat post from DSC Waddell about the accused's refusing to participate in an interview around 12.00 pm on Sunday 16 July 2023 when he got off the plane in Kununurra.[43]
[43] ts 158.
Sergeant Murray recalled receiving the Second CNS Email and forwarding it to DSS Cleal and Sergeant Mills at around 3.12 pm on 16 July 2023. He forwarded it to Sergeant Mills because she was the suspect manager and he forwarded it to DSS Cleal because he was the senior investigating officer.[44]
[44] ts 159 ‑ 160.
He said police notified CNS on every occasion that an Aboriginal person was a suspect in custody, even for relatively minor offences. Sergeant Murray said that, in relation to more serious offences, the police would receive a similar email from CNS.[45]
[45] ts 160.
When asked whether he gave Sergeant Mills or DSS Cleal any direction about the approach they should take to interviewing the accused, he said:
I let them know that we had …the email more so as a paper trail of knowledge that they knew that we had completed CNS, and we knew CNS had been done because, obviously, by getting that email, we are comfortable that CNS has been complied with. In terms of whether we're going to interview the suspect or not, based on what current information we had, it didn't change our intention to ask her if she wished to participate in the interview.
He said the assertions contained in the CNS Emails did not change the police approach to potentially interviewing the accused.[46]
[46] ts 163.
Sergeant Murray and DSS Cleal remotely monitored the interview with the accused on 16 July 2023.[47] Sergeant Murray said that police officers take the WA Police Interview Guide into an EROI in order to ensure they are covering all of the matters that need to be the subject of questioning.[48]
[47] ts 164.
[48] ts 165; Exhibit 13.
In examination‑in‑chief, when asked if he discussed with Sergeant Mills the approach in the interview given the police had received the CNS Emails, Sergeant Murray said:[49]
… the process was that we had gone up there as a new team of investigators and conducted a full review and investigation into the matter since - since the last time [the suspect] had said she didn't wish to interview. So it was only fair for us to explain who we were and explain that we've done a full review and a full investigation and offered the opportunity to participate in the interview to share her side of the story.
[49] ts 163.
In cross‑examination, the following exchange between counsel for the accused and Sergeant Murray occurred:[50]
MS HUGO: So it's your position that conducting an interview following a refusal from the suspect in custody is a fair approach; is that correct?
SERGEANT MURRAY: I think it's fair to offer the suspect an opportunity - or I think it's fair to offer the suspect - or make them aware, I should say, that a new investigator - well, a heavy review has been conducted. We go up there. We review everything on hand. We identify new areas that need investigating. We conduct a thorough investigation to our standards at Homicide, ie, we have more people to commit to each particular area. And yes. I think that once we've completed that, it's only fair to them to say, 'We've now completed - we're from a Homicide Squad. We've now completed another investigation, and we would like to offer you the opportunity to share your side of the story now that you know that we've conducted further investigations'.
[50] ts 183.
In re‑examination, Sergeant Murray said that he did not consider that the police were bound to follow the directives of the CNS because they did not align with the powers that the CIA allows for interviewing suspects.[51]

DSS Cleal

[51] ts 186.

DSS Cleal gave the following evidence at the voir dire.
He was contacted by DSC Waddell by telephone on 15 July 2023 around mid to late morning to advise him of the suspicious death of Ms Unghango. DSS Cleal notified other police officers to deploy them to Kununurra on 16 July 2023.
DSS Cleal was added to the Teams chat by DSC Waddell. He did not remember seeing the post by DSC Waddell at 9.44 am on 16 July 2023 advising that the accused had declined an interview, but said that we would have been aware that CNS had given that advice because he ensured that CNS always get called for an Aboriginal person in custody and 'that's always their advice anyway'.[52]
[52] ts 195.

When asked about whether he received the First CNS Email that was forwarded to his email by DSC Waddell on 15 July 2023 at 12.21 pm, DSS Cleal said that he could not remember, but that he accepted that the accused had received advice from CNS not to speak to police. DSS Cleal said:[53]
… these emails, you know, the - working in the North West as - as long as I did and dealing with - these are pro forma emails that - that come through. They're - they're exactly the same, all the time, with the same advice each time. It's so I'm aware - I would have been aware, without reading this email, that that was the advice she was - she was given.
[53] ts 196 ‑ 197.
Sergeant Murray forwarded DSS Cleal the Second CNS Email on 16 July 2023 at 3.12 pm and DSS Cleal saw it that afternoon.[54]
[54] ts 203.
DSS Cleal and Sergeant Murray remotely monitored the interview with the accused that commenced at around 5.35 pm on 16 July 2023.
DSS Cleal gave the following evidence in response to the question as to whether anything changed in terms of the proprietary of attempting an interview with the accused after the police had received the CNS Emails:[55]
No. We - I mean, we - CNS and any lawyer that gives advice is - well, because we facilitate that, they can - they - obviously, give their advice. They can give advice to the suspect, or they are obliged to give advice to a suspect, but it's up to the suspect whether they take that advice. And seeing as, with respect, they don't direct us as to what we can or can't investigate or how to investigate. So my view with that is we facilitate lawyers giving suspects advice, but whether they choose to take that advice or not is up to the suspect themselves.
[55] ts 206 ‑ 207.
DSS Cleal gave evidence that the police are bound by the CIA, not by CNS.[56] DSS Cleal did not give any direction to Sergeant Mills to approach the interview differently as a result of the CNS Emails or the accused's prior refusal that morning to participate in an interview.[57] DSS Cleal interrupted the interview with the accused to ensure that she was offered an interview friend.[58]
[56] ts 211.
[57] ts 214.
[58] ts 215.
In cross‑examination, DSS Cleal accepted that the CNS Emails conveyed the instructions of the accused, not the advice that CNS gave the accused.[59] DSS Cleal also accepted that the details contained in the CNS Emails in relation to the accused were different in that they referred to the specific details of the accused, the offence she was suspected of and her medical information - he said however, that the content was the same as other emails the police received from CNS.[60]
[59] ts 220.
[60] ts 221.
In cross‑examination the following exchange occurred between counsel for the accused and DSS Cleal in relation to the accused's personal refusal to participate in a police interview:[61]
[61] ts 223 ‑ 225.
MS HUGO: … but do you agree with me that that conveys that the suspect herself declined?
DSS CLEAL: I will say that it was in association with a call with CNS. So we've facilitated her to call CNS, and then she has declined after the conversation with CNS.
MS HUGO: Now, I'm not asking you about what occurred before the suspect declined. I'm asking whether you understood that the suspect at this time personally declined?
DSS CLEAL: After a call with CNS. I do.
…
MS HUGO: Do you agree that you understood from this Teams chat that the suspect personally declined?
DSS CLEAL: And I will - I will answer that it is associated - it's always associated with a call to CNS. It's not separate to that if she has been spoken to - having not just spoken to CNS. So she - it's her words that she said to us. I absolutely agree with that, but it's always associated just after CNS have given her advice or instructions, as you say.
MS HUGO: Now, you've referenced a number of times that it's in association with just having spoken to CNS. Is it your view that when a suspect is given legal advice, that police are - that there's less of an incentive for police to follow the specific - the specific instructions from that particular suspect?
DSS CLEAL: No. It's - it's - the advice given by a lawyer to a suspect is between the lawyer and the suspect is how I see it. And my role as an investigator is to follow the CIA and follow that practice. We don't get directed to by the - by a lawyer or CNS in this point. So we follow the - the CIA. Yes.
MS HUGO: I will perhaps ask the question in this way. I was asking you questions regarding whether the suspect, to your understanding, personally declined. In answer to each of those questions you continued to reference the context being the CNS?
DSS CLEAL: Yes.
MS HUGO: I will ask you this. If a suspect had said to you, 'I do not want to do an interview,' and that was prior to speaking to CNS or without any reference to legal advice, would you have taken that more seriously?
DSS CLEAL: If it came from - it would be time, place, circumstance. I mean, that's not the - that's not the situation in this particular situation. So if - if I was to give evidence on this, I would have to know all the circumstances around that. That's not the situation here. The situation here is exactly what we're saying here.
…
MS HUGO: when the suspect personally said she did not want to participate in an interview - …was that refusal taken less seriously because she had just spoken to CNS?
DSS CLEAL: I see what you mean. No. She had just spoken to CNS, and that was the connection there, but I took that no more or less seriously than when she told us that she did want to do an interview. It's completely up to her. And so again, we follow the CIA in terms of that.
…
MS HUGO: Would you agree with me, however, in your mind, the fact that she had spoken to CNS was relevant in assessing her refusal?
DSS CLEAL: It's relevant in terms that we need to facilitate - it's fair on her to facilitate a call to the CNS. So - - -
MS HUGO: I'm not asking about facilitating a call?
DSS CLEAL: Right.
MS HUGO: When I was questioning you a few moments ago, and I asked you whether the suspect personally declined, you continued to reference the context of the CNS?
DSS CLEAL: Yes.
MS HUGO: My question is, in your mind, is it relevant to a suspect's refusal to conduct an interview if they have previously spoken to the CNS?
DSS CLEAL: It makes no difference to me. We ensure - I hope I'm getting your question right, but I - we ensure that the suspect speaks to CNS or - or a lawyer, but we go from what the suspect speaks of. If at that time after speaking to CNS, the suspect in this case says, 'I don't want to participate in an interview,' then we take that into account. Absolutely. If that changes during the course of the day or moment in time, then we take that into account as well. It's certainly taken into account at the time that we're able to commence an interview as it's recorded and can be seen.
In cross‑examination DSS Cleal was asked whether he considered, when the accused said 'What if I don't want to answer the whole lot? I don't want to', that to be a refusal by the accused to answer questions. He responded:[62]
No. I didn't. I considered that because she made an inquiry as to whether or not she has to answer all the questions. I took that as a meaning that she doesn't wish to answer all the questions. So I was happy that she was able to answer the questions that she chose to.
[62] ts 226.
In re‑examination, DSS Cleal stated that the part that was always the same in CNS Emails was the suspect not wanting to do an interview or go into an interview room at all with police.[63]

Ms Ann-Geanette Bass - CNS Manager

[63] ts 227.

Ms Bass is a qualified lawyer who began working at CNS in August 2022 and was appointed manager of CNS on 18 July 2024. Ms Bass gave evidence that:
(1)CNS is a service that was enacted in October 2019 and that it came about through the Royal Commission into Aboriginal Deaths in Custody that was held in 1991. The Royal Commission deemed that there needed to be a service to assist Aboriginals in custody and try and assist with preventing deaths in custody. The federal and state governments came to an agreement in 2019 and funded the CNS program, with ALS as the head of CNS operations;
(2)CNS is staffed by ALS and is staffed by 15 lawyers, including herself;
(3)CNS is like a telephone hotline that operates 24-7 - every time an Indigenous person is taken into custody or apprehended across the State of Western Australia, the police notifies the CNS when the Indigenous person arrives at a police facility;
(4)new lawyers at CNS complete a two‑week full‑time training induction program with her. The training includes cultural awareness, health and wellbeing of the Indigenous person, suicide prevention, trauma‑informed practise, rights in custody, legal file‑note taking, bail, arrest warrants and offences. The lawyers engage in role playing and simulated calls; and
(5)standard CNS practice when a call is received from the police is to first speak to the police officer and then speak to the Indigenous person if they wish to do so. When speaking to an Indigenous person, CNS standard practice includes enquiring with the person about their health and welfare, give advice about their right to silence, ask whether they have a lawyer and suggest that ALS or Legal Aid may be able to assist them. After speaking with the Indigenous person, CNS will then speak with the police officer and give them any information that the person has asked them to communicate. While going through this process, the CNS will fill out a template form to record the information communicated by the Indigenous person.
Ms Bass gave evidence that the CNS received the following call volumes:[64]
(1)for the last half of 2022 - average of 589 calls per week;
(2)for 2023 - average of 700 calls per week; and
(3)first half of 2024 - average of 815 calls per week.
[64] ts 239.
In examination‑in‑chief, Ms Bass gave the following evidence about the general practice of CNS in relation to advice given to an accused about their right to silence:
MS BASS: …after we've informed the person about their rights in custody, and especially their right to silence, we ask them, 'So what were you wishing to do today?' And we might - they might not understand. We might say, 'Okay. So with regards to the interview, what were your thoughts around the interview? Would you like to participate in an interview, or are you thinking you might not want to talk to police today,' and we will just get a feel for how they're feeling at the time and what their thoughts are.
MS HUGO: If the answer to that question is 'I do want to do an interview,' is there a process or a policy that follows that?
MS BASS: So if - if a person does wish to do an interview, we just, again, say - remind them of a right to silence, remind them that, at any time, if they feel uncomfortable or don't wish to proceed with an interview, that that's quite okay. It's a legal right that they have, and that would be - that would be it. If a person advises that they wish to do an interview, it is their choice at the end of the day.
MS HUGO: If a person advises that they do wish to do an interview, is there any correspondence with police regarding that?
MS BASS: Generally, we won't correspond back, only because if a person thinks about the advice they've been given and then changes their mind in between talking to ourselves and then going to the interview room or speaking to an officer in the meantime, it gives them that opportunity to be able to change their mind in the process. So we don't advise anything; we just pretty much relay our communications around health or welfare.
MS HUGO: If a suspect or a client is unclear or unsure about whether they want to do an interview, what process follows that?
MS BASS: So in the legal file notes, which is our form on the database, we make notes. We're very particular with the notes, so I always advise staff, 'Make sure you put in there if the person's unclear, they're not sure.' Sometimes we might ask them, 'What are you unsure about? What's going through your mind at the moment? What are your thoughts?' Just see what they've got to say. And there might be something. Sometimes they go, 'Well, if I - if I don't do the interview, I'm not going to get bail, or I won't get out of here quick enough,' so you can clarify that for them and say, 'Look, bail is not something that is connected to the interview. Bail comes after you've been charged,' and so just - and then remind them, again, right to silence. But, at the end of the day, if we can't take clear instructions, then we just make sure we've got that documented down and the conversation and why, and that's - it finishes there again. We don't have any instructions to pass on.
MS HUGO: So if you can't get clear instructions, what, if anything, is communicated to the police regarding the suspect wishing to do an interview?
MS BASS: We, again, won't say anything. What we can do is remind the police, 'Look, if the person would like to [talk to] us again, then please give us a call back.' We might communicate health and welfare, anything else. But, again, if we don't get clear instructions, we don't communicate anything. We've got nothing. No instructions to pass.
In cross‑examination, Ms Bass gave the following evidence:[65]
[65] ts 252.
MR NICHOLLS: And they would normally be encouraged to exercise their right to silence in that it's in their - usually in their best interests. Not always, but they're encouraged?
MS BASS: Yes, depending on, obviously, the matter and the situation, but - yes.
MR NICHOLLS: Yes. So there may, of course, be occasions where an accused says, 'Look, I want to speak to police. I want to do an interview'?
MS BASS: Yes.
MR NICHOLLS: 'I just want to get it all off my chest. I want to do it.' You wouldn't strongly argue against things in that situation, would you? Or would you strongly advise to the contrary or not?
MS BASS: We might remind them again of a right to silence and say that sometimes, it's better to wait to talk to a lawyer later and that they can always give a statement later. There's (sic) options later. But ultimately, if the person is wanting to do the interview, it's their choice. They still have that choice. It's voluntary. So if they want to volunteer to do an interview, then that's within a person's right. It's not for us to change their mind.
MR NICHOLLS: Okay. But you do - in circumstances that we've spoken of, where a person is under arrest on suspicion of an offence of some seriousness - let's say wounding, grievous bodily harm, murder, manslaughter?
MS BASS: Something serious, yes.
MR NICHOLLS: You would encourage a person to exercise their right to silence; would that be fair to say?
MS BASS: We would strongly advise that it's in their best interest not to participate in an interview. Yes.
MR NICHOLLS: Yes. Presumably, you would also advise them that there's no obligation on them to participate in an interview?
MS BASS: Yes.
In further cross‑examination in relation to communicating with the police in relation to an accused exercising their right to silence, Ms Bass gave the following evidence:[66]
MR NICHOLLS: Okay. And if the person does indicate to you, in some way, that they do wish to accept the advice and exercise their right to silence, the next step in the process, as I understand it, is that -at least for a serious offence, that your lawyers will write to the police station involved?
MS BASS: So if the person instructs us that they don't wish to do the interview, then we will confirm verbally on the phone with police that they've chosen to exercise their right to silence today and they don't wish to participate in an interview. And then we will confirm that in email to police.
[66] ts 256.

Legal principles

The relevant legal principles in relation to the admission or exclusion of confessional statements are not in dispute. They have been summarised by the Court of Appeal in Kelly v The State of Western Australia[67] and endorsed in EYO v State of Western Australia.[68]
[67] Kelly v The State of Western Australia [2017] WASCA 221 [34] ‑ [48] (Kelly).
[68] EYO v State of Western Australia [2019] WASCA 129 [50] (EYO).
In summary:
(1)it is a fundamental common law requirement that a confessional statement must be voluntary;
(2)it is presumed that a confessional statement is voluntary if there is nothing to suggest that it is involuntary;
(3)if the issue of voluntariness is raised, the State bears the onus of establishing, on the balance of probabilities, that the statement is voluntary;
(4)the requirement that a statement be voluntary means that it must have been made by the confessionalist in the exercise of his or her free choice to speak or remain silent. An accused who speaks while overborne is not speaking voluntarily.[69] A statement made as a result of duress, intimidation, or sustained or undue insistence or pressure is not voluntary.[70] A confessional statement will be excluded from evidence as involuntary if it has been obtained from an accused either by fear of prejudice or hope of advantage, exercised or held out by a person in authority;[71]
(5)if a confessional statement is voluntary, it is prima facie admissible, but it may nevertheless be excluded by the court in the exercise of discretion;
(6)the residual discretion to exclude a voluntary confessional statement is exercisable on one or more of the following bases:[72]
(a)it would be unfair to the accused to admit the statement. The purpose of this discretion is to protect the rights and privileges of an accused;
(b)considerations of public policy make it unacceptable to admit the statement into evidence. The purpose of this discretion is to protect the public interest; and
(c)the statement's prejudicial impact outweighs its probative value. The purpose of this discretion is to guard against a miscarriage of justice;
(7)it is not always possible to treat voluntariness, unfairness, public policy and prejudicial weight of the statement as discrete considerations in deciding whether the discretion to exclude it should be exercised - these are often overlapping considerations; and
(8)an accused who asserts that the court should exercise its discretion to exclude a voluntary confession on one of these bases bears the onus of proving facts that would justify an exercise of the residual discretion in his or her favour.
[69] R v Lee [1950] HCA 25; (1950) 82 CLR 133, 144.
[70] Van der Meer v The Queen [1988] HCA 56; (1988) 62 ALJR 656.
[71] MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512; McDermott v The King [1948] HCA 23; (1948) 76 CLR 501, 511; R v Lee (149); Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396 [10] ‑ [13].
[72] R v Swaffield [1998] HCA 1; (1998) 192 CLR 452 [52].
In assessing whether an accused's will is 'overborne', the test is subjective. In applying the test, regard must be had to the age, background and psychological condition of the accused and the circumstances in which the confession is made. The conduct of police before and during an interview is a relevant factor in determining whether a confession is voluntary. The fact that the police did not consciously seek to overbear the will of the accused does not matter.[73]
[73] Collins v The Queen (1980) 31 ALR 257, 307.
When considering the issue of unfairness to the accused, the question is not whether the police acted unfairly or improperly, but whether it would be unfair to the accused to use her confessional statement against her;[74] the primary concern of the unfairness discretion is whether the confession may be unreliable. However, that is not the only concern. There may be unfairness to the accused because the statement might not have been made at all if the interrogation had been properly conducted.[75]
[74] Van Der Meer v The Queen (666).
[75] Wright v The State of Western Australia [2010] WASCA 199 [116], [207].

In determining whether considerations of public policy make it unacceptable to admit the statement into evidence, the court must weigh against each other two competing requirements of public policy - those being on the one hand, the public interest in convicting persons who have committed criminal offences and on the other hand, the public interest in protecting persons from unfair and unlawful treatment.[76]
[76] R v Ireland [1970] HCA 21; (1970) 126 CLR 321, 335.
A confessional statement may be excluded where a police officer continues to question the accused after she has stated that she does not wish to answer questions. Once the accused has indicated she wishes to exercise her right to silence, the police should not pressure or cajol the accused into answering questions as this dilutes the effect of the caution given to the accused.[77] Where a person clearly exercises their right to refuse to answer questions, the police should not continue questioning the accused and any confessional statement would generally be ruled inadmissible in the exercise of discretion.[78]
[77] Pearce v The State of Western Australia [2014] WASCA 156 [39] referring to Van der Meer v The Queen (666).
[78] MacKenzie v The Queen [2004] WASCA 146 [7].
In R v Anunga,[79] Forster J formulated guidelines for the interrogation of Indigenous persons - these are referred to as the 'Anunga guidelines'. Although they do not have force of law in Western Australia, they do provide guidelines as to factors which are relevant to assessing whether a confessional statement is voluntary and fair. Forster J said the following, first as a preamble to the Anunga guidelines, before going on to state the Anunga guidelines:[80]
[79] R v Anunga (1976) 11 ALR 412 (Anunga).
[80] Anunga (413 ‑ 415).
I preface this statement of guidelines by pointing out that Aboriginal people often do not understand English very well and that, even if they do understand the words, they may not understand the concepts which English phrases and sentences express. Even with the use of interpreters this problem is by no means solved. Police and legal English sometimes is not translatable into the Aboriginal languages at all and there are no separate Aboriginal words for some simple words like 'in', 'at', 'on', 'by', 'with' or 'over', these being suffixes added to the word they qualify. Some words may translate literally into Aboriginal language but mean something different. 'Did you go into his house?' means to an English‑speaking person, 'Did you go into the building?', but to an Aboriginal it may also mean, 'Did you go within the fence surrounding the house?'. English concepts of time, number and distance are imperfectly understood, if at all, by Aboriginal people, many of the more primitive of whom cannot tell the time by a clock. One frequently hears the answer, 'Long time', which depending on the context may be minutes, hours, days, weeks or years. In case I may be misunderstood, I should also emphasize that I am not expressing the view that Aboriginal people are any less intelligent than white people but simply that their concepts of certain things and the terms in which they are expressed may be wholly different to those of white people.
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?
Bearing in mind these preliminary observations which are based partly upon my own knowledge and observations and partly by evidence I have heard in numerous cases I lay down the following guidelines. They apply, of course, to persons who are being questioned as suspects:-
(1)When an Aboriginal person is being interrogated as a suspect, unless he is as fluent in English as the average white man of English descent, an interpreter able to interpret in and from the Aboriginal person's language should be present, and his assistance should be utilized whenever necessary to ensure complete and mutual understanding.
(2)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.
(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.
(4)Great care should be taken in formulating questions so that so far as possible the answer which is wanted or expected is not suggested in any way. Anything in the nature of cross‑examination should be scrupulously avoided as answers to it have no probitive [sic] value. It should be borne in mind that it is not only the wording of the question, which may suggest the answer, but also the manner and tone of voice which are used.
(5)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. Failure to do this, among other things, led to the rejection of confessional records of interview in the cases of Nari Wheeler and Frank Jagamala.
(6)Because Aboriginal people are often nervous and ill at ease in the presence of white authority figures like policemen it is particularly important that they be offered a meal, if they are being interviewed in a police station, or in the company of police or in custody when a meal time arrives. They should also be offered tea or coffee if facilities exist for preparation of it. They should always be offered a drink of water. They should be asked if they wish to use the lavatory if they are in the company of police or under arrest.
(7)It is particularly important that Aboriginal and other people are not interrogated when they are disabled by illness or drunkenness or tiredness. Admissions so gained will probably be rejected by a court. Interrogation should not continue for an unreasonably long time.
(8)Should an Aboriginal seek legal assistance reasonable steps should be taken to obtain such assistance. If an Aboriginal states he does not wish to answer further questions or any questions the interrogation should not continue.
(9)When it is necessary to remove clothing for forensic examination or for the purposes of medical examination, steps must be taken forthwith to supply substitute clothing.
Consistent with the requirement to take into account the accused's age, background and psychological condition and the circumstances in which the confession is made, it is not the case that the Anunga guidelines will apply to all Indigenous people. However, it is important to assess both the voluntariness and the fairness of confessional statements made by an Indigenous person having regard to the Anunga guidelines.[81] The fact that an Anunga guideline is breached may be relevant in assessing both whether the confessional statement was voluntary and whether its admission would be unfair to the accused.[82]
[81] TheState of Western Australia v Cox [2008] WASC 287 [55].
[82] EYO [54].

Was the interview voluntary?

EYO case and the Anunga guidelines

The accused relies upon the case of EYO in support of her submission that the interview was not voluntary.
The facts in EYO were as follows. The accused was Indigenous and had limited English. The police video recorded an interview with him. The accused had the assistance of an interpreter during the interview. Approximately an hour before the interview, the ALS sent a letter to the police station, which was received by the police station. The terms of the letter were clear in relation to the accused's wish to exercise his right to silence and his wish not to participate in a police interview. However, the police proceeded with the interview. The court found that the police had not established that the accused understood the second limb of the caution (that being that the statement could be used in evidence against him in court) and that, in fact, the accused did not understand the second limb of the caution.[83] The court also considered whether the police officers had respected the accused's right to silence. The court, in referring to Anunga guideline 8, said:[84]
We observe, in relation to guideline 8, that while interviewing officers are generally entitled to ask further questions to clarify an accused's position and to determine whether a refusal applies to all questions or only a particular topic, it has been held that the position may well be different where a lawyer acting for a client whose first language is not English tells police in clear terms that his or her client does not wish to answer any questions.
…
It will be recalled that Mr Dyason from the ALS sent a letter addressed to Detective Oldfield which was received at the Town police station about one hour before the VROI commenced.  The terms of the letter were clear:  '[The appellant] wishes to exercise his right to silence'; 'He does not wish to participate in a police interview'; 'He will not answer questions about the matter'; 'he does not wish to enter into any discussion with the police, at all'; 'he wishes to exercise his right to legal representation'; 'he asks … that he be accompanied by a lawyer from the ALSWA in any and all future dealings with the police'; 'We trust you will abide by our client's decision to remain silent'.
Detective Oldfield did not, at the date of the voir dire, recall whether he read the letter prior to the VROI or not.  However, the important point, for present purposes, is that the letter was sent to and received at the Town police station about one hour before the VROI commenced and the terms of the letter were, as we have indicated, clear in relation to the appellant's wish to exercise his right to silence and his wish not to participate in a police interview.  In any event, the appellant told Detective Oldfield the advice that he had been given by the lawyer.  Further, on various occasions, when asked whether he wished to answer questions by the police, the appellant answered to the effect that he did not wish to answer.  The appellant could not have been any clearer when he said, 'I'm saying nothing'; 'Yeah, I don't want to speak'; 'Yeah.  I don't want to say anything'; 'On them other thing, like, this lawyer told me to, you know.  The lawyer tell me to say no'.
Whenever the appellant responded to the effect that he did not wish to answer any questions, the interrogating police officers ignored those responses.  Instead, they continued to interrogate the appellant about the alleged offences, as if the appellant had answered in the affirmative.  In our opinion, the police officers, by their conduct, whittled down the effect of the caution by continuing with the interview when the appellant had repeatedly stated his wish to remain silent.  In this way, the interrogating officers failed to respect the appellant's choice to stay silent.  Their conduct infringed guideline 8 of the Anunga guidelines which provides that an interview should not proceed if the person being interviewed states he or she does not wish to proceed further.
[83] EYO [70] ‑ [73].
[84] EYO [56], [75] - [77].
The court held that the confessional statement of the accused was inadmissible based on the unfairness discretion, considering a combination of the following factors:[85]
(1)the absence of a proper explanation to the accused of the second limb of the caution;
(2)the accused's multiple and clear statements that he did not wish to answer questions which were, in effect, ignored by the interrogating officers; and
(3)the effect of guideline 8 of the Anunga guidelines.
[85] EYO [78].
The State says that this case can be distinguished from EYO because the accused spoke English, understood the caution and volunteered information during the interview.
The State also submitted that, because the accused could speak, read and write English well, the Anunga guidelines have no application in this case. I do not accept that submission. While the Anunga guidelines address matters relevant to Indigenous persons who do not have a good understanding of English, they are not guidelines which apply exclusively to those persons. It is important that the Anunga guidelines are considered having regard to the individual circumstances of the Indigenous person in custody. In the case of the accused, while I accept that she demonstrated a good understanding of English and spoke English well, she was also a vulnerable person who displayed quiet compliance with directions of the police officers. The Anunga guidelines were developed, as evident from the preamble thereto, having regard to Indigenous persons such as the accused.
In my view, Anunga guideline 8 is particularly relevant to the accused's circumstances. In EYO, the Court of Appeal said the following, referencing Gibson,[86] in relation to Anunga guideline No 8:[87]
We observe, in relation to guideline 8, that while interviewing officers are generally entitled to ask further questions to clarify an accused's position and to determine whether a refusal applies to all questions or only a particular topic, it has been held that the position may well be different where a lawyer acting for a client whose first language is not English tells police in clear terms that his or her client does not wish to answer any questions.
(emphasis added)
[86] Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199 [174].
[87] EYO [56].
Consistent with this observation in EYO, given that the accused spoke and understood English well, police were entitled to ask the accused questions to clarify the accused's position communicated by CNS and by herself directly to the police on several occasions, that being that she wished to exercise her right to silence.

CNS Emails

The CNS Emails were the subject of a substantial amount of evidence at the voir dire. It is necessary and appropriate that I devote a proportionate amount of these reasons to those emails.
The First CNS Email was sent on 15 July 2023 at 12.16 pm:

The Second CNS Email was sent on 16 July 2023 at 3.08 pm.

The Third CNS Email was sent on 16 July 2023 at 3.50 pm.
The State says that the court cannot place any weight on the CNS Emails because:
(1)emails of the type sent by the CNS in this case, have been received or seen by the police in numerous other cases involving Aboriginal suspects. These emails have common proforma type elements, with matters that relate to the individual suspect in custody;
(2)in more serious cases such as homicides involving Aboriginal suspects, these emails have become commonplace, if not ubiquitous. This practice of CNS to send emails of this type should not be permitted to override the duty that the police have to conduct a thorough investigation;
(3)the court should not accept that the accused provided 'clear instructions' of the kind asserted within the CNS Emails, and the email assertions should not be accepted as evidence of such, given:
(a)the assertions within the CNS Emails are not consistent with what the accused directly communicated to police officers in Kununurra, at least on 15 July 2023; and
(b)emails of this kind are now relatively common and therefore, should be treated with a degree of caution.
(4)although it is open to the court to find that the accused was advised by CNS to exercise her right to silence, there is a distinct difference between instructions and advice.
The State says that, during the accused's interaction with FCC Mann, and at the beginning of the interview, she demonstrated her clear understanding of the police caution, that being that she was not required to speak to police or answer any of their questions and that any answers she did give could be used in court against her.

Disposition

The State has not satisfied me on the balance of probabilities that the interview was voluntary. I make this finding for the following reasons.
The accused refused to participate in a police interview on, at least,[88] four occasions, those being:
(1)on 15 July 2023 at 12.16 pm, Ms Emma Field of CNS sent DSC Waddell the First CNS Email[89] in which Ms Field informed him that the accused 'has provided clear instructions that she does not wish to participate at all in any police interview, or answer any police questions at all' and that 'this correspondence be taken as [the accused's] formal refusal of interview';
(2)on 16 July 2023 at 9.10 am, the accused told DSC Waddell that she did not want to do an interview and wanted to go back to her cell;[90] and
(3)on 16 July 2023 at 15.08 pm, Ms Ginny Rabeling of CNS sent Detective Murray and Detective Senior Constable Waddell the Second CNS Email confirming that the accused did not wish to participate at all in any police interview;[91] and
(4)on 16 July 2023 at the commencement of the interview, the accused stated unequivocally that she did not want to answer any of the police questions in the following exchange:
ACCUSED: What if I don't want to answer the whole lot?
DSC MILLS: yeah you don't have to answer any of my questions.
ACCUSED: I don't want to.
[88] Counsel for the accused relied on screenshots from the CNS database (Exhibits 31 and 32) to establish that lawyers from CNS spoke to police officers and conveyed the accused's election to exercise her right to silence on two other occasions. As those lawyers were not called to give evidence, I make no positive finding in relation to those phone calls.
[89] Exhibit 2.
[90] ts 61.
[91] Exhibit 6.
I do not accept the proposition that the CNS Emails should be given less weight than a personal refusal from the accused herself to participate in an interview. The matters communicated in the CNS Emails are direct and clear instructions from the accused which the accused has requested CNS to communicate to the police. The police are required to treat them as such. It is of no consequence that there is an element of repetition in the CNS Emails for this accused and other suspects/accused persons. Given the volume of work that CNS undertake it is in the interests of efficiency and consistency that the CNS Emails are drafted having regard to a precedent. In fact, that is exactly how the police issue the caution to an accused - by repeating a developed precedent.

Further, the fact that the CNS Emails are commonplace is irrelevant. The right to silence is a fundamental common law right. Each and every person has a right to silence which they may choose to exercise. An Indigenous person, having been advised by CNS of that right and given advice that it is in their interest to exercise that right, is entitled to exercise that right. If that means that every Indigenous person in custody exercises their right to silence, then so be it.
There is no evidence to support the contention that the accused did not give those instructions to CNS in this case and request that they be communicated to the police. The CNS Emails do not record 'advice' to the accused, rather, as the emails state, they record the accused's instructions to the CNS.
Given that the accused understood and spoke English well, I accept that the police officers were entitled to clarify the accused's position directly with her to determine whether her refusal to participate in an interview applied to all questions or just a particular topic. But that is not what the interviewing police officers did. They did not seek to clarify the accused's position, because they simply did not refer to the position the accused had previously expressed on at least four occasions that she did not want to participate in a police interview.
Given the accused's consistent and persistent refusal to participate in a police interview, I am satisfied that the accused's will was not to speak to police. The fact that the accused had previously indicated a willingness, on 15 July 2023, to speak to police does not alter this will. Those occasions were on 15 July 2023 to FCC Mann at approximately 10.00 am when she was first taken to the police station and at around 11.20 am on the same day to DSC Waddell. On each of those two occasions the accused was intoxicated, having recorded an alcohol level of 0.179 at 11.05 am on 15 July 2023. The fact that she was not unsteady on her feet does not alter the fact that she was intoxicated. The accused had also not had the benefit of legal advice at that time.
The accused did not waiver from the position that she did not want to participate in a police interview after she had spoken to CNS on 15 July 2023 at 11.27 am.
Therefore, when the police officers continued with the interview after the accused's refusal to answer any of the questions, the accused's will not to answer any questions was overborne. I note that the police officers were not intimidating and did not put overt pressure on the accused. Rather, it was the fact that they continued to interview the accused and ask her substantive questions about the incident, not simply questions to clarify whether her refusal applied to all questions or just some questions, which overbore her will and made the interview involuntary.
Given the State has not satisfied me on the balance of probabilities that the interview was voluntary, it is inadmissible. However, even if the interview was voluntary I would have excluded it in the exercise of the residual discretion on the basis of it being unfair to the accused. That is for the following reasons:
(1)the accused expressed on at least four occasions in clear and unequivocal terms that she did not wish to answer questions;
(2)the interviewing officers effectively ignored these statements;
(3)in accordance with the recommendation in Anunga guideline 8, the interviewing police officers should have stopped the interview as soon as the accused said she did not want to answer 'the whole lot', immediately after Sergeant Mills had said she did not have to answer 'any' questions, - I do not accept the contention that when the accused said she didn't want to answer 'the whole lot' that she may have meant she wanted to answer some of the questions. The only reasonable interpretation of 'the whole lot', in my view, is that she did not want to answer any of the questions. At the very most, the police officers were permitted to ask the accused questions to clarify whether the accused meant she did not want to answer any questions or just did not want to answer questions on a particular topic; and
(4)the accused confirmed at the end of the interview that she did not want to participate in the interview.
The evidence of Sergeant Mills and Sergeant Murray was that they were required to give the accused an opportunity to tell her side of the story to be 'fair' to the accused. I accept that that is their genuinely held belief and was their intention. For the reasons I have detailed, I do not however, agree that the way the interview was conducted was 'fair' to the accused.
The evidence of each of Sergeant Mills, Sergeant Murray and DSS Cleal, in relation to the effect of the CNS Emails on their approach to interviewing the accused, demonstrated that they considered contacting CNS to be a box that had to be 'ticked' in conducting an investigation. Further, DSS Cleal's repeated reference to the fact that the accused's personal refusal to participate in an interview was made immediately after she had spoken to CNS, leads me to the find that the police did not consider her refusal to participate in an interview to be her own in those circumstances.

Summary

The role that CNS has to play in providing legal advice to Indigenous persons in custody is not simply a box ticking exercise - it is a substantive and important role that is designed to ensure that the person in custody understands their legal rights and is able to exercise them if they wish to do so. That is what the accused did in this case - she received advice and she chose to exercise her right to silence. The police were entitled to clarify her position directly with her. The accused told them she didn't want to answer any questions. The interview that followed was therefore, involuntary and is inadmissible.
Even if the interview was voluntary, I would have excluded it in the exercise of the court's residual discretion on the basis that it was unfair to the accused.
Given I have found that it is involuntary and unfair and therefore inadmissible, I am not required to consider the alternate bases upon which the defence sought to exclude the interview.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to the Hon Justice Whitby
6 DECEMBER 2024