Wright v The State of Western Australia - [2010] WASCA 199

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: WRIGHT -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 199

CORAM: McLURE P
BUSS JA
BLAXELL J

HEARD: 14 APRIL 2010

DELIVERED : 27 OCTOBER 2010

FILE NO/S: CACR 100 of 2009

BETWEEN: DANNIE ADAM WRIGHT
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MURRAY J
File No  :INS 34 of 2008

Catchwords:

Criminal law Appeal from convictions for murder and sexual penetration Unrecorded admission overheard by police officer Whether admission made 'to' a police officer within meaning of s 118 of Criminal Investigation Act 2006 (WA) - Whether a 'reasonable excuse' for absence of recording

Criminal law - Confessions and admissions - Admissibility of audiovisual recording of interview with police - Delay in informing appellant of right to a reasonable opportunity to communicate with legal practitioner Appellant also under the influence of cannabis Whether interview voluntary - Whether s 154 and s 155 of Criminal Investigation Act 2006 (WA) governed admissibility of interview - Impact of s 155 on common law discretions to exclude evidence of admissions

Legislation:

Criminal Investigation Act 2006 (WA), s 118, s 128, s 137, s 138, s 139, s 154, s 155

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr S B Watters & Mr P B Cassidy
Respondent: Mr A L Troy & Ms L E Christian

Solicitors:

Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)

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

Buckle v Josephs (1983) 47 ALR 787
Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54
Carr v The State of Western Australia (2007) 232 CLR 138
Cohns Industries Pty Ltd v Deputy Federal Commissioner of Taxation (1979) 24 ALR 658
Collins v The Queen (1980) 31 ALR 257
Dilworth v Commissioner of Stamps [1899] AC 99
Driscoll v The Queen (1977) 137 CLR 517
Gassy v The Queen (2008) 236 CLR 293
Jackson v The Queen (1962) 108 CLR 591
JWRL v The State of Western Australia [2009] WASC 285
Kelly v The Queen (2004) 218 CLR 216
MacKenzie v the Queen [2004] WASCA 146
Mahmood v The State of [No 2] [2008] WASCA 259
Malgil v The State of Western Australia [2008] WASC 290
Marshall v The State of Western Australia [2008] WASC 99
McDermott v The King (1948) 76 CLR 501
Nicholls v The Queen (2005) 219 CLR 196
Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177
R v Buchanan [1966] VR 9
R v Lee (1950) 82 CLR 133
R v Soma [2003] HCA 13; (2003) 212 CLR 299
R v Swaffield (1998) 192 CLR 159
Sinclair v The King (1946) 73 CLR 316
The Queen v Gray; Ex parte Marsh (1985) 157 CLR 351
TKWJ v The Queen (2002) 212 CLR 124
Van der Meer v The Queen [1988] HCA 56; (1988) 82 ALR 10
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Wilde v The Queen (1987) 164 CLR 365
Y Z Finance Co Pty Ltd v Cummings (1964) 109 CLR 395

McLURE P: The relevant facts, background material and grounds of appeal are set out in the reasons of Blaxell J. I too would dismiss the appeal. However, I wish to state my position on the important issues of construction of the Criminal Investigations Act 2006 (WA) (the Act) that arise for determination in this appeal. The issues in the appeal relate to the admissibility of admissions made by the appellant prior to trial.
The appellant was convicted of the sexual penetration and murder of the complainant, Dan Gojiao. The complainant was murdered on 8 October 2007.
On 12 October 2007 the police arrested the appellant at a house in Innaloo where the appellant was visiting his cousin, Justin Bullock. Four police officers in the course of executing a search warrant located the appellant and Mr Bullock in the lounge room. The police arrived at the house at 12.22 pm and gained entry shouting 'police, search warrant' (ts 98). Detective Sergeant Leonhardt was in the lead, and he was followed in turn by Detectives Mulhall, Glynn and then Powell. The appellant was seated on a couch with his cousin Justin Bullock seated to his right. It was the evidence of the first three detectives who entered the lounge room that upon their entry the appellant turned to Justin Bullock and said, 'I really fucked up with that girl the other night' (the oral statement). Detective Powell, the last detective to enter the lounge room, said the appellant turned slightly towards his cousin and said 'I've fucked up, I've fucked up really bad' (ts 416).
The police officers and the appellant left the house at approximately 12.42pm. The appellant was placed in the rear of a police vehicle and taken to a video interview room in Curtin House at Perth. The appellant was not questioned by police before the formal interview which commenced at 2.07 pm.
At the commencement of the interview, the appellant said he was 'really really wasted from smoking cannabis' (ts 3). One of the police officers conducting the interview then informed the appellant that he was entitled to communicate with a lawyer following which he was cautioned in the usual terms, namely that he did not have to say anything but anything he did say would be recorded and may be given in evidence. The appellant acknowledged that he understood the caution and that he did not have to talk to the officers. The questioning proceeded. When he was being asked about his mental health the appellant said he was 'really stoned and couldn't handle the questions' (ts 7). Approximately halfway through the interview, the appellant requested a lawyer. There was some brief further questioning and the police officers offered the appellant a telephone so he could make a call to a lawyer. The appellant did not immediately take up that offer and said he was happy to continue with the interview. A short time later he again said he wanted a lawyer. The interview ceased while one of the police officers obtained a telephone book. When the interview resumed, the appellant made an unsuccessful attempt to telephone the Legal Aid Commission. The appellant was then reminded of the caution and questioning resumed. Not long after, the appellant was asked if he wanted to try again for a lawyer. That resulted in a further call to the Legal Aid Commission and advice being given to the appellant that he should cease answering questions. The interview then terminated.
The appellant's objections to the admissibility of the confessional evidence were determined on a voir dire. The appellant claimed that the oral statement was inadmissible under s 118 of the Act because of the absence of an audiovisual record. He claimed that the audiovisual record of his interview with police (the record of interview) was inadmissible at common law on the ground that it was involuntary or should be excluded on public policy or unfairness grounds. The appellant's position was foreshadowed in written submissions. He relied on the extent of his cannabis intoxication and importunity arising from the denial of his right to a lawyer.
The prosecutor called a number of witnesses, including Detective Leonhardt, a police officer involved in the arrest and formal questioning of the appellant. The appellant did not give evidence. At no stage prior to or during the voir dire did the appellant foreshadow or pursue a claim that the record of interview was inadmissible under the Act. Although s 138 of the Act was referred to in the appellant's written submissions, it was not relied on in the voir dire because (I infer) of counsel's understanding that the appellant was not an arrested suspect for the purposes of s 138 (ts 149). As a result, evidence relevant to the issues under the Act was not adduced on the voir dire.
The trial judge ruled the oral statement and the record of interview admissible. In the course of ruling on admissibility, the trial judge (without hearing submissions on the point) made obiter observations confirming the correctness of his view expressed in Malgil v The State of Western Australia [2008] WASC 290 [19] ‑ [20] that s 154 and s 155 of the Act had no application to evidence of admissions obtained in contravention of s 137 or s 138 of the Act. Contrary views had been expressed by other single judges: Marshall v The State of Western Australia [2008] WASC 99 [29] ‑ [31] (McKechnie J); JWRL v The State of Western Australia [2009] WASC 285 (Blaxell J). It is apparent from the appellant's written submissions that the correctness of Malgil was accepted.
At the hearing of the appeal the court questioned the correctness of the construction in Malgil. The relevant provisions of the Act are as follows. Under s 138(2)(c) an arrested suspect is entitled to a reasonable opportunity to communicate or to attempt to communicate with a legal practitioner. Under s 138(3)(a), the officer in charge of the investigation must, as soon as practicable after the arrest of a suspect, inform the suspect of his or her rights under, inter alia, subs (2)(c). It was common cause in the appeal that the appellant was an 'arrested suspect' for the purposes of s 138 of the Act. An 'arrested suspect' is defined to mean a person who is under arrest, having been arrested under s 128, under an arrest warrant, or under another written law, on suspicion of having committed an offence (s 138(1)).
Section 154 relevantly provides:
(2)If in the purported exercise of a power conferred by this Act … ‑
(a)a thing relevant to an offence is seized or obtained; and
(b)a requirement of this Act in relation to exercising the power … , including a requirement that arises before or after the exercise of the power … , is contravened,
any evidence derived from the thing referred to in paragraph (a) or from the exercise of the power is not admissible in any criminal proceedings against a person in a court unless ‑
(c)the person does not object to the admission of the evidence;
(d)the court decides otherwise under section 155; or
(e)[not presently relevant].
Section 155 provides:
(1)This section applies if under another section a court may make a decision under this section in relation to evidence that is not admissible in proceedings in the court.
(2)The court may nevertheless decide to admit the evidence if it is satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.
(3)In making a decision under subsection (2) the court must take into account ‑
(a)any objection to the evidence being admitted by the person against whom the evidence may be given;
(b)the seriousness of the offence in respect of which the evidence is relevant;
(c)the seriousness of any contravention of this Act in obtaining the evidence;
(d)whether any contravention of this Act in obtaining the evidence ‑
(i)was intentional or reckless; or
(ii)arose from an honest and reasonable mistake of fact;
(e)the probative value of the evidence;
(f)any other matter the court thinks fit.
(4)The probative value of the evidence does not by itself justify its admission.
The other sections to which s 155(1) refers are s 48, s 118 and s 154 of the Act. Unlike the common law, the discretion in s 155(2) is to admit otherwise inadmissible evidence not to exclude otherwise admissible evidence. The considerations in subs (3) are both mandatory and exhaustive.
As a consequence of this court raising with both counsel the correctness of the obiter view in Malgil, the appellant sought and obtained leave to amend his grounds of appeal to ventilate the issues. The new ground is inadequately expressed as a 'failure to consider' s 154 and s 155 of the Act. However, during the course of the hearing the court canvassed with both parties what it had identified as the relevant issues and questions of statutory construction requiring determination. They are broadly as follows:
(1)what is meant by the expression 'as soon as practicable after arrest' in s 138(3) and was that obligation complied with;
(2)what is meant by the expression 'reasonable opportunity' in s 138(2)(c); insofar as it relates to time, is it affected by whether, and if so when, the obligation in s 138(3)(a) is complied with; is the reasonableness of the opportunity affected by an arrested suspect's indication that he does not wish to communicate with a lawyer; are police officers prohibited from interviewing an arrested suspect until after a reasonable opportunity has been provided to communicate with a lawyer;
(3)is an interview of an arrested suspect and/or a recording thereof a 'thing relevant to an offence' for the purposes of s 154(2)(a); if so, was it obtained in the purported exercise of a power under the Act and if so, what power.
For the sake of convenience I propose to deal with the grounds of appeal in reverse order.

Ground 3 - breach of the Act

The proper construction of s 154

The effect of ground 3 is that the record of interview was inadmissible at trial because (1) there was a contravention of s 138(2)(c) of the Act; (2) the contravention was in the exercise of the power to detain the appellant for the purpose of interviewing him (s 139(2)(c)); (3) the DVD was a 'thing' relevant to an offence under s 154; and (4) the court did not exercise its power to admit the evidence under s 155 (the trial judge concluding it had no application).
I propose to start with the proper construction of s 154 of the Act. For present purposes I will assume that there was a contravention of s 138 of the Act. For analytical purposes, the constituent elements of s 154(2) are as follows:
1.if in the purported exercise of a power conferred by the Act
2.a thing relevant to an offence is obtained
3.and a requirement of the Act in relation to the exercise of the power (including a requirement that arises before or after the exercise of the power) is contravened
4.any evidence derived from the thing or from the exercise of the power is not admissible
5.unless the person does not object to the admission of the evidence or the court decides otherwise under s 155.
The expression 'thing relevant to an offence' is defined in s 5. It relevantly provides:
For the purposes of this Act, a thing is a thing relevant to an offence if it is reasonably suspected that ‑
…
(d)the thing is or may afford ‑
(i)evidence relevant to proving the commission of an offence or who committed an offence; or
(ii) …
(2)For the purposes of this Act, a thing relevant to an offence may be material or non‑material, animate (other than human) or inanimate.
The term 'material' is not defined in the Act and thus has its natural and ordinary meaning of 'formed or consisting of matter; physical; corporeal': The Macquarie Dictionary (3rd ed revised, 2001), 1180. Its opposite, 'non‑material' means 'incorporeal; not material; without material existence'. Thus, the statutory meaning is sufficiently broad to include information provided or statements made by a person, such as for example, responses made by a person to questioning. Prima facie, the appellant's interview with police officers and the audiovisual record of that interview are things relevant to the offences with which the appellant was charged.
That construction of s 5 is consistent with the scheme of the Act as a whole. In particular, s 154 is the only section of the Act that provides an express statutory avenue for the potential consequence of a failure to comply with the duties in, inter alia, s 137 and s 138 of the Act. It is to be expected that a statute creating obligations to be performed by police in the investigation of criminal offences would also expressly provide for the consequences of a failure to comply with them. The only alternative would be to construe the Act as containing an implication that a failure to comply with a duty under the Act is relevant to the admissibility of confessional evidence at common law. It would be difficult to draw such an implication when the Act expressly provides an avenue for dealing with contraventions.
The next question is whether the relevant things (the statements made by the appellant and the audiovisual recording thereof) were obtained in the purported exercise of a power conferred by the Act. The Act does not expressly empower police officers to interview a suspect. However, s 139 of the Act provides for the detention of 'arrested suspects' as that expression is defined in s 139(1). It is common cause that the appellant was an arrested suspect within that definition. Under s 139(2)(c), a police officer may detain an arrested suspect after the suspect is arrested for the purposes of interviewing the suspect in relation to any offence that the suspect is suspected to have committed. The appellant was detained for that purpose. Thus the interview and the record thereof are 'things' obtained in the purported exercise of the power under s 139(2)(c), which satisfies the first two elements of s 154(2).
The next issue is whether a requirement of the Act in relation to exercising the power (the power to detain an arrested suspect for the purposes of interview) is contravened. Section 138 is a requirement of the Act and it relates to the rights of an arrested suspect. Although the definition of arrested suspect in s 138(1) is wider than that in s 139(1), the appellant is an arrested suspect for the purposes of both s 138 and s 139. Thus the requirements in s 138 in the circumstances of this case relate to the exercise of the power to detain an arrested suspect for questioning. The third element of s 154 is satisfied.
Finally, the interview and the record thereof are evidence derived from the exercise of the power in s 139(2)(c) to detain the appellant for the purposes of interview. The fourth element is also satisfied.
Thus, if there was a breach of s 138, the record of interview was improperly obtained and inadmissible unless the court otherwise decided under s 155 of the Act. The court did not otherwise decide (nor was it asked to).

The construction and application of s 138

Section 138 of the Act relevantly provides:
(2)In addition to the rights in section 137 an arrested suspect is entitled ‑
(a)to be informed of the offence for which he or she has been arrested and any other offences that he or she is suspected of having committed;
(b)to be cautioned before being interviewed as a suspect;
(c)to a reasonable opportunity to communicate or to attempt to communicate with a legal practitioner;
(d)if he or she is for any reason unable to understand or communicate in spoken English sufficiently, not to be interviewed until the services of an interpreter or other qualified person are available.
(3)The officer in charge of the investigation must, as soon as practicable after the arrest of an arrested suspect ‑
(a)inform the suspect of his or her rights under section 137(3)(c) and subsection (2)(c); and
(b)afford the suspect his or her other rights under section 137 and subsection (2).
Section 137(3)(c) provides that an arrested person is entitled to a reasonable opportunity to communicate or to attempt to communicate with a relative or friend to inform that person of his or her whereabouts. The other rights under s 137 include necessary medical treatment, a reasonable degree of privacy from the mass media and the provision of an interpreter or other qualified person if the arrested person is unable to understand or communicate in spoken English sufficiently.
Subsections (2) and (3) of s 138 are interrelated. Subsection (2) identifies the arrested suspects' rights and subs (3) identifies upon whom the duty falls, the scope of the duty and when the duty (to confer the rights) must be exercised. As to timing, the duty must be performed 'as soon as practicable after arrest'. The word 'practicable' is not defined and has its natural and ordinary meaning of 'capable of being put into practice, done or effected, especially with the available means or with reason or prudence; feasible': Macquarie Dictionary 1494.

The police officer who gave evidence at the voir dire was not examined or cross‑examined with the object of establishing compliance or non‑compliance with any duty in s 138(3)(a) or s 138(2)(c) of the Act. Detective Leonhardt was not asked whether he informed the appellant of his right to communicate with a lawyer some time before the commencement of the record of interview and if not, why not. As previously noted, counsel for the appellant did not understand the appellant to be an arrested suspect for the purposes of s 138 (ts 149).
What is 'as soon as practicable after arrest' is a matter of fact to be determined in the circumstances of each case. Prima facie, it would have been feasible to inform the appellant of his entitlement to a reasonable opportunity to communicate with a legal practitioner shortly after his arrest, which was at around 12.22 pm. That proposition involves implicit rejection of the notion that it is appropriate to wait until the performance of the statutory duties can be objectively confirmed on the record which, it may be speculated, explains the police procedures in this case. On the assumption that the appellant was first informed of his right under s 138(2)(c) during the interview, and in the absence of any explanation for the delay, I would conclude that the appellant was not informed of his right to communicate with a lawyer as soon as practicable after the arrest.
The proper construction of s 138(2)(c) is not without difficulty. What is relatively clear is that it is not the source of any duty imposed on police. Sections 138(3)(a) is the source of the duty on police. The two provisions have to be read together to determine the scope of the duty on police in relation to a suspect's right under s 138(2)(c). The only express duty on police is to inform the suspect of his right to communicate with a lawyer. That is to be contrasted with the obligation of the officer in charge under s 138(3)(b) which is to afford the suspect his or her other rights under s 137 and subs (2). The word 'inform' means tell and the word 'afford' means supply or furnish. The word 'other' can only mean other than the provisions expressly referred to in s 138(3)(a), which includes s 138(2)(c). Accordingly, the officer in charge is under a duty to caution the suspect or if the suspect is unable to understand or communicate in English, to provide an interpreter. The only obligation of the officer in charge in relation to s 138(2)(c) is to inform the suspect of his entitlement to a reasonable opportunity to communicate with a legal practitioner. However, what is a reasonable opportunity will depend on all the circumstances, including the suspect's access to the means to communicate. Thus there is every practical incentive on police to permit access to the means necessary to facilitate communication.
Although the officer in charge is not obliged to supply or furnish an arrested suspect with any facilities (for example, a telephone or a telephone directory) which are reasonably necessary for the suspect to take advantage of his or her entitlement under s 138(2)(c) (namely, a reasonable opportunity to communicate or attempt to communicate with a legal practitioner), police must not by any act or omission prevent the suspect's exercise of that entitlement.
By s 139(2), a police officer or a public officer may detain an arrested suspect, after the suspect is arrested, for the purposes specified in that subsection. By s 139(3), an arrested suspect who is detained under s 139(2) must be detained in the company of an officer and not in a lock‑up or other place of confinement, unless the circumstances make it impracticable to do so.
If an arrested suspect wishes to take advantage of his or her entitlement to a reasonable opportunity to communicate or attempt to communicate with a legal practitioner, what will constitute a 'reasonable opportunity' will, of course, depend on the particular facts and circumstances of each case. But, ordinarily, the 'reasonable opportunity' will include the suspect travelling in the company of a police officer (see s 139(2) and (3)) to obtain access (if necessary) to a telephone and a telephone directory within the vicinity of the place where the suspect is being detained.
The next issue is whether the opportunity to communicate must be prior to interview. Construing s 138(2)(c) in its broader context, there is no such requirement. There is no express provision to that effect nor can such a requirement be implied having regard to pars (b) and (d) of s 138(2), both of which expressly provide that the right be afforded prior to interview. The omission in s 138(2)(c) is explicable on the basis that under s 138(2)(b) a suspect must be cautioned before being interviewed as a suspect. The caution (that the suspect does not have to say anything but anything he does say would be recorded and may be given in evidence) sufficiently protects the interests of the suspect. A suspect who wishes to communicate with a lawyer, will be aware that he is not obliged to answer any questions. Further, the practical effect of the obligation in s 138(3)(a) to inform the suspect of his right to communicate with a lawyer as soon as practicable after arrest will ordinarily require that the information be provided prior to interviewing the suspect.
What is a 'reasonable opportunity' will be assessed from the time the suspect was informed of his right to communicate with a lawyer (or perhaps earlier if it is established that the suspect was otherwise aware of his rights). However, it is entirely a matter for the suspect as to whether or not he wishes to exercise the right. Thus, what is a reasonable opportunity will depend upon the suspect's attitude to communicating with a lawyer. If the suspect expressly or impliedly indicates that he does not want to do so, no further time is required. I will assume without deciding that a suspect can in those circumstances subsequently avail himself of the right.
I should note for the sake of completeness that I have examined the legislation in other jurisdictions to see if it or the relevant case law assists in the construction issues in this case. Generally, the legislation in other jurisdictions (unlike the Act) expressly address relevant matters. Section 464C of the Crimes Act 1958 (Vic) is a representative example. It provides that before any questioning or investigation, an investigating officer must inform a person in custody that he may communicate or attempt to communicate with a lawyer; if the person in custody wishes to communicate with a lawyer the officer must offer the person reasonable facilities as soon as practicable to enable the person to do so. See also Crimes Act 1914 (Cth), s 23G; Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 123.
The questions whether there had been a breach of s 138 of the Act and if so whether the court should exercise its discretion under s 155 were not litigated in the voir dire. What evidence there is supports an inference that the officer in charge did not inform the appellant of his right to communicate with a lawyer as soon as practicable after his arrest. As the issue was not litigated, there is no direct evidence as to whether the delay in providing the information occasioned any prejudice to the appellant. Having regard to his conduct at the interview, I would decline to conclude that the position would have been different if the appellant had been advised earlier.
In the introductory part of the interview, the appellant was informed of his right to communicate with a lawyer and was cautioned. His answers disclose that he understood the effect of the caution (ts 5). The appellant then proceeded to answer questions put to him by police. About halfway through the interview, the appellant unequivocally stated he wanted a lawyer (ts 18). After a few further questions, a police officer informed the appellant that if he wanted to contact a lawyer the appellant could use his phone. The appellant was then asked whether he was prepared to continue with the interview and he said yes (ts 19 ‑ 20). The questioning continued and the appellant again asked for a lawyer (ts 27). The police then provide the appellant with a telephone book and a telephone and the appellant attempted to contact the Legal Aid Commission. He was unsuccessful. One of the police officers asked the appellant what he wanted to do and reiterated the caution. The appellant continued to answer questions (ts 30 ‑ 31). A short time later, a police officer asked whether the appellant wanted to try again to contact a lawyer. On this occasion the appellant was successful and he acted on advice not to answer any further questions.
I have concluded that the only relevant obligation of a police officer under s 138 is to inform a suspect of his right to communicate with a lawyer. Having exercised that duty, the onus is effectively cast on the suspect to exercise the right if he or she so desires. There is no duty on the police to cease questioning the suspect. If that is correct, it cannot in my view be said that in the formal interview the appellant was denied his right to a reasonable opportunity to communicate with a lawyer.
The next question is whether, and if so on what ground, this court must act under s 30(3) of the Criminal Appeals Act 2004 (WA). Section 30 relevantly provides:
(2)Unless under subsection (3) the Court of Appeal allows the appeal, it must dismiss the appeal.
(3)The Court of Appeal must allow the appeal if in its opinion ‑
(a)the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported;
(b)the conviction should be set aside because of a wrong decision on a question of law by the judge; or
(c)there was a miscarriage of justice.
(4)Despite subsection (3), even if a ground of appeal might be decided in favour of the offender, the Court of Appeal may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
The issue is whether in the circumstances of this case par (b) or par (c) applies. Criminal proceedings are adversarial in nature with the consequence that ordinarily the parties thereto expressly or impliedly determine the matters of fact in issue: MacKenzie v the Queen [2004] WASCA 146 [74]. As is apparent from the written submissions and the proceedings on the voir dire, the appellant accepted that s 154 and s 155 had no application to confessional evidence and based his challenge to the admissibility of the record of interview solely on the common law. The observations made by the trial judge concerning the non‑applicability of s 154 and s 155 were obiter.
In those circumstances, the trial judge did not make a wrong decision on a question of law for the purposes of s 30(3)(b): R v Soma (2003) 212 CLR 299 [42] (McHugh J). Thus, the appellant must establish that there has been a miscarriage of justice. Where the irregularity in issue results from the deliberate conduct of counsel based on an erroneous view of the law or the facts, it is appropriate to focus on what the outcome would have been if the issue had been raised at the appropriate time: TKWJ v The Queen (2002) 212 CLR 124 [79]. That is, the appellant must demonstrate that if the issue had been raised, the court would have declined to admit the evidence under s 155. Having regard to the evidence referred to above, I would infer that any breach of s 138 was neither deliberate nor (having regard to the opacity of its terms) reckless and that it occasioned no proven prejudice. Taking into account all of the mandatory considerations in s 155(3), the weight of the relevant considerations strongly favours the admission of the evidence. Thus, the appellant has not established any miscarriage of justice.
In any event, even if the record of interview was inadmissible, I agree with Blaxell J for the reasons he gives that there is no substantial miscarriage of justice, because its admission into evidence would and should have had no significance in determining the verdict returned by the jury: Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300; Mahmood v The State of [No 2] [2008] WASCA 259. I would dismiss ground 3.

Ground 2 - voluntariness and fairness

The appellant contends the trial judge erred when he failed to exclude the record of interview on the basis that it was involuntary and/or unfair. The basis for the claim that the interview was involuntary and/or unfair is that the police continued asking questions notwithstanding that the appellant did not want the interview to proceed because he was stoned from smoking cannabis and because he wanted to obtain and asked several times for, a lawyer.
An admission by an accused person is only admissible in evidence if it was made voluntarily. The prosecution has the onus of establishing that the statement was voluntary. Once the prosecution proves that an admission was made voluntarily, the onus is then on the accused to establish on the balance of probabilities that the admission should be excluded in the exercise of the court's discretion. An admission will be excluded in the exercise of the court's discretion if it is unfair to the accused to admit it or the admission of the evidence is contrary to public policy.
It is necessary at this juncture to address the relationship between the common law and the provisions of the Act. The only relevant provision is s 7 of the Act which provides:
(1)Subject to this section, a police officer has the powers, duties and responsibilities that a constable has under the common law.
(2)If this Act confers a power, duty or responsibility on a police officer that the officer also has by reason of subsection (1), the power must be exercised and the duty or responsibility must be performed in accordance with this Act.
(3)If there is an inconsistency between a provision of this Act and a power, duty or responsibility that a police officer has by reason of subsection (1), the provision of this Act prevails.
There is no common law right equivalent to s 138(2)(c) although requests to speak to a lawyer are relevant to the voluntariness or fairness of a record of interview: Mackenzie v The Queen [65].
Section 7 does not make express reference to the statutory consequences of a failure to comply with the statutory duty. There is clearly no express or implied exclusion or modification of the common law relating to the voluntariness of confessional evidence.
The position in relation to the discretion to exclude on the grounds of unfairness or public policy is not as clear. If the only matter relied on was a contravention or contraventions of the Act, there must be no scope for the application of the common law discretion. That may also be so if all matters relevant to the exercise of the common law discretion were relevant to the statutory discretion in s 155. However, it is unnecessary to answer that question in this case.
I agree with Blaxell J for the reasons he gives that the trial judge did not err in finding that the record of interview was voluntary. The reasoning relating to voluntariness is also relevant to the discretionary exclusions. The appellant has failed to establish that the trial judge erred in the exercise of his discretion in refusing to exclude the record of interview on unfairness or public policy grounds. In particular, the appellant has failed to establish that the trial judge made a material error of fact or law in the exercise of his discretion not to exclude the evidence. I would dismiss ground 2.

Ground 1 - the oral statement

The appellant contends the trial judge erred when he failed to exclude the oral statement pursuant to s 118 of the Act. Section 118 relevantly provides:
(1)In this section ‑
admission means an admission made by a suspect to a police officer or a CCC officer, whether the admission is by spoken words or by acts or otherwise;
adult means a person who has reached 18 years of age;
child means a person who is under 18 years of age;
reasonable excuse, for the absence of an audiovisual recording of an admission, includes ‑
(a)the admission was made when it was not practicable to make an audiovisual recording of it;
(b)equipment to make an audiovisual recording of the admission could not be obtained while it was reasonable to detain the suspect;
(c)the suspect did not consent to an audiovisual recording being made of the admission;
(d)the equipment used to make an audiovisual recording of the admission malfunctioned.
…
(3)On the trial of the suspect for the offence, evidence of any admission by the suspect is not admissible unless ‑
(a)the evidence is an audiovisual recording of the admission; or
(b)in the absence of an audiovisual recording of the admission ‑
(i)the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for the absence; or
(ii)the court decides otherwise under section 155.
(4)Subsection (3) does not apply to an admission by a person made before there were reasonable grounds to suspect that he or she had committed the offence.
The structure of the provision is as follows. Prima facie, evidence of an admission by a suspect is not admissible unless there is an audiovisual recording of the admission. The evidence will be admissible in the absence of an audiovisual recording if (1) the prosecution proves that there is a reasonable excuse for the absence; or (2) the court decides otherwise under s 155.
Section 118 replaces s 570D of the Criminal Code which was considered by the High Court in Carr v The State of Western Australia (2007) 232 CLR 138 and Nicholls v The Queen (2005) 219 CLR 196. The explanatory memorandum for the Criminal Investigation Bill notes that s 118 substantially mirrors the previous provisions. Under s 570D evidence of any admission by the accused was not admissible 'unless the evidence is a videotape on which is a recording of the admission'. Videotape was defined as any videotape on which is recorded an interview. The term 'admission' in s 570D is the same as the definition in s 118(1). The term 'videotape' has been replaced in s 118 by the expression 'audiovisual recording' which is not defined. Thus the question whether the admission was made in an interview is no longer relevant. However, the definition of admission remains as one made by 'a suspect to a police officer'. The requirement must place some limitation on the scope of the exclusion. In its context, the meaning of 'to' is expressing motion or direction towards someone; that is the words or conduct was directed to a police officer.
It is apparent from the heading and content of pt 11 in general that its primary focus is on the recording of an interview between a suspect and police which is invariably conducted in private with the attendant risk of police verballing a suspect. On the other hand, whether or not a suspect made an admission 'to a police officer' involves questions of degree and that expression should be given its broadest legitimate scope consistent with the statutory language and purpose of the Act.
In this case the evidence of all persons present in the room was consistent, namely that the statements made by the appellant were directed at his cousin both physically and as a matter of intention; the appellant was explaining to his cousin why he was wanted by police. A statement made by a suspect to a third party in the presence of police would not in my view fall within the mischief which s 118 is intended to address. However, I will proceed on the assumption that the admission is not admissible because it was not recorded.
The definition of the expression 'reasonable excuse' is not in terms or effect exclusive. That is, there may be a reasonable excuse that does not fall within any of the paragraphs of the definition: Nicholls [3], [106], [156], [218], [342].

The trial judge held that the oral statement was made by the appellant when it was not practicable to make an audiovisual recording of it and thus there was a reasonable excuse for its absence. He accepted the evidence of Detective Leonhardt which was to the effect that there was no intention to speak to or interview the appellant but rather to take him into

custody and that the main objective of police upon entering the house was to secure the premises and secure the people inside the premises in which case it was not practicable to run into the premises with video equipment running.

In this case the admission was made at a private home where the police secured entry for the purpose of locating and arresting the appellant for a very serious offence, with the possibility that the appellant may seek to avoid or resist arrest and with no intention of questioning the appellant. Those being the surrounding circumstances leading up to the unexpected admission, the trial judge was correct to conclude that it was not practicable to make an audiovisual recording of it.
The appellant did not at trial or in the appeal rely on s 45 of the Act which deals with recording the execution of a search warrant. It is unnecessary to address that issue. I would dismiss ground 1.
BUSS JA: I agree with McLure P.
BLAXELL J: In March 2009 the appellant stood trial before a judge and jury on an indictment alleging that on 8 October 2007 he wilfully murdered (alternatively murdered) Dan Gojiao, and also sexually penetrated Ms Gojiao without her consent. The appellant was acquitted of wilful murder, but convicted of murder and sexual penetration. He now appeals from these convictions on grounds which challenge two rulings made by the trial judge after a voir dire as to the admissibility of certain evidence.
The first ruling allowed evidence to be given of an unrecorded admission by the appellant at the time of his arrest. The appellant contends that there was no 'reasonable excuse' for the absence of a recording, and that the evidence was inadmissible under s 118 of the Criminal Investigations Act 2006 (WA) (the Act).
The trial judge's second ruling allowed evidence of a recorded interview between police officers and the appellant. At the time of the interview the appellant had not had an opportunity to communicate with a legal practitioner, and he contends that this was a breach of s 138 of the Act which made the evidence inadmissible. He was also under the influence of cannabis at the time of the interview, and he contends that his admissions were involuntary and/or should have been excluded on discretionary grounds.

These issues raise important questions as to the proper construction of the relevant provisions of the Act, and as to the manner in which those provisions should operate in conjunction with the common law.

A summary of the evidence

On 8 October 2007 Dan Gojiao was violently murdered on a street in Innaloo. Ms Gojiao was a 22‑year‑old student from China who had come to Australia temporarily to pursue her studies. She was living at 63A Oswald Street, Innaloo, and supporting herself by working part‑time at nights as an office cleaner in Leederville.
On the evening of 8 October 2007 Ms Gojiao completed her cleaning duties at about 10.30 pm, and walked to the Leederville train station where she caught a northbound train to Stirling. The appellant boarded the same train at Glendalough Station and was also travelling to Stirling. He had been released from prison the previous day and was staying with his aunt in Gwelup. Stirling was the nearest train station to Gwelup.
Ms Gojiao and the appellant both alighted from the train at the Stirling station. CCTV security footage showed them both exiting the station at 11.11 pm with Ms Gojiao being closely followed by the appellant. The CCTV footage also showed that the appellant was carrying a white shopping bag.
Ms Gojiao's home in Oswald Street was in a generally southerly direction from the station, whereas the route to the appellant's aunt's house would have taken him in a generally northerly direction. However, the layout of the streets around the station required that they both walk for some distance towards the west (along Cedric Street) before they could divert south and north.
At about that time, a witness walking towards Stirling train station along Cedric Street observed an Asian female walking quickly in the opposite direction. A man was following her and walking approximately 5 m ‑ 10 m behind. The witness arrived at the station at approximately 11.20 pm.
Although it was only a 13‑minute walk from Stirling station to 63A Oswald Street, Ms Gojiao never arrived home. At 6.00 am on the following morning, her body was found under a street tree on the front verge of 75 Oswald Street. Ms Gojiao's trousers, underpants and shoes were a few metres from her body, and she was naked from the waist down.
An examination by a forensic pathologist revealed severe injuries to Ms Gojiao's face, neck, vagina, and anus. It was not possible to determine the sequence in which these injuries had been inflicted or whether Ms Gojiao had lost consciousness prior to her death. However there was evidence to show that she had survived the injuries for some hours before she succumbed. The cause of death was bronchopneumonia complicating the multiple injuries.
The neck injuries were characteristic of those typically seen in cases of strangulation. The injuries to the vagina and anus had been caused by a very forceful penetration of the vagina by a blunt object such as a bottle.
There were no eye‑witnesses to the attack on Ms Gojiao. However, a number of residents in the vicinity had heard a noise similar to a brief shout or 'exclamation' at the material time. One of those residents living on the opposite side of the street (Mrs Gascoigne) got out of bed and looked through her front flyscreen door. She was unable to see or hear anything. Not long afterwards she looked out a second time through a front window and saw a 'fairly tall' man walking northwards along the opposite footpath. He was carrying what looked like a white cloth shopping bag. When this man got to 'the tree' (where Ms Gojiao's body was later found) he 'just veered off the path a little bit and just kept walking'. Mrs Gascoigne then lost sight of him because her view was obscured.
While Mrs Gascoigne was still looking out the window she saw 'a shadow of a man but it was very dark and he just looked like he went and put something in a bin'. This second man then 'strolled back under the tree' where Mrs Gascoigne was unable to see him. (In this regard, the first man had been walking 'in the lit part of the street' whereas the second man was in the shadows). After Mrs Gascoigne lost sight of the first man, only a 'few seconds' elapsed before she saw the second man.
The police commenced a very thorough investigation soon after the body was found. Many items were seized for forensic analysis and these included a number of 'wheelie bins' which had been left outside houses in Oswald Street ready for a rubbish collection later that day.
The contents of these bins were methodically examined and in the sulo bin for 79 Oswald Street the police found an empty Corona beer bottle which was blood‑stained. The bottle was towards the bottom of the bin underneath three green garbage bags as well as a number of smaller shopping bags all containing refuse.
A DNA analysis of the blood stains on the bottle revealed a profile matching the DNA profile of Ms Gojiao. The probability of the blood stains having come from someone other than and unrelated to Ms Gojiao was less than one in 2.75 billion.
Impressed in one of the blood stains on the bottle was a left index finger print later identified as being that of the appellant. It could not be established conclusively whether the blood had been on the finger or on the bottle at the time that the impression was made. There were three further fingerprints (as well as other finger marks) on the bottle, but none of these had sufficient ridge detail for identification. Such detail as was present in these other prints neither identified nor excluded them as coming from the appellant.
Amongst the many other items that were forensically examined were Ms Gojiao's trousers which had been on the street verge near her body. There were numerous stains on the trousers, most of which reacted positively to a presumptive test for blood, and had DNA profiles consistent with that of Ms Gojiao. One of these stains (stain 'O') was on the outside of the front left waistband of the trousers and it had a mixed DNA profile including male DNA which was consistent with having come from at least three individuals.
It was relevant to the results of analysis of stain 'O', that on the afternoon of 8 October 2007 the appellant had been at Fremantle with two friends, Paul Dowson and Mircarla Firman. In the course of that afternoon they had 'had sex' together.
According to the scientist who carried out the DNA analysis (Dr Paula Hallam) the mixture in stain 'O' contained alleles consistent with the DNA profiles of all of the deceased, the appellant, Mircarla Firman, and Paul Dowson. This meant that those four persons could not be excluded as possible contributors to the mixture in stain 'O'. It was also Dr Hallam's evidence that the statistical probability of an individual chosen at random having a DNA profile that did not exclude those persons as possible contributors to the mixture was less than one in 3,400. However, an expert molecular geneticist called by the defence (Mr B L McDonald) rejected this statistical calculation as being 'flawed'.
On 12 October 2007 the police attended at a house in Innaloo where the appellant was visiting his cousin (Justin Bullock). Four police officers executed a search warrant and found the appellant and Mr Bullock both seated in the lounge room. As the appellant was being arrested he turned to Mr Bullock and said something. According to the first three police officers who entered the room, the appellant said:
I really fucked up with that girl the other night.
According to the fourth police officer the appellant said:
I've fucked up. I've fucked up really bad.
The appellant's own evidence at trial was that he said simply: 'I fucked up'.
The appellant was taken to the office of the Major Crime Squad in Perth where he participated in a video record of interview. During that interview he admitted that he had been on the train on 7 October 2007, that he had got off the train at Stirling train station, and that he was the person in a still photograph taken from the CCTV footage. However he denied that he had followed Ms Gojiao or that he ever went to Oswald Street. He also denied making an unrecorded statement in the particular terms attributed to him at the time of his arrest. He admitted to saying 'I fucked up', but said that this was a reference to a break and enter he had committed 'years ago'.
On 12 October 2007 the police executed a second search warrant at the house in Gwelup where the appellant had been staying with his aunt. In a bedroom they found a watch which the appellant later acknowledged to be his. The watch had a stain on the winder, which tested positively for blood. A partial DNA profile from that stain matched the DNA profile of Ms Gojiao. The probability of such a match if the cellular material had come from someone other than and unrelated to Ms Gojiao was less than one in 25 million.
During his evidence at trial the appellant admitted that he had walked down Oswald Street after getting off the train on 7 October 2007. He did so in order to reach the Innaloo shopping centre where he had intended to hire a taxi. However, upon arriving at the shopping centre he discovered that he had insufficient money to pay for a taxi, and he then turned around to walk to his aunt's house.
It was the appellant's evidence that while he was making his way back along Oswald Street he saw two people under a tree who looked as though they were 'having sex'. He walked past them but turned around when he heard a loud noise. As he did so he saw 'a person that was underneath the tree jump up, put something in a bin and … then run towards me'. This person ran on past the appellant.
According to the appellant he then walked back and approached the tree. When he got close he saw 'somebody laying on the ground and she was half‑naked'. He asked if she was alright but got no response and assumed that she was dead. He did not touch the person on the ground.
The appellant then decided to have 'a look in the bin … to see if there was anything out of the ordinary'. He put his left hand in the bin and 'pushed stuff around' but saw nothing out of the ordinary and walked off.
In that regard it was the appellant's evidence that at the time 'a whole heap of circumstances' were going through his mind. He was just out of jail with a criminal record and for this reason he 'panicked and left'.

The circumstances surrounding the appellant's admissions

The unrecorded admission and the video record of interview were received in evidence against the appellant's objections and after a voir dire conducted by the trial judge. There was no substantial issue as to the circumstances in which the unrecorded statement and interview were obtained, and the following is a summary of those circumstances.
From about 5.00 pm on 11 October 2007 the police had reasonable grounds to suspect that the appellant was the offender, and they wished to speak to and arrest him. At about 11.00 am on 12 October 2007 the officer in charge of the investigation (Detective Sergeant J R Leonhardt) received information that the appellant was at the house in Innaloo where he was later arrested. A search warrant was immediately obtained.
Detective Sergeant Leonhardt appointed an arresting team of four detectives including himself, and their instructions were to 'gain entry to the premises, locate Dannie Wright, secure Dannie Wright and secure the scene, and he was to be taken into custody'. The Detective Sergeant did not intend that the appellant would be questioned at the scene, but that he would be taken to the office of the Major Crime Squad in Perth so that he could be interviewed on video.
No arrangements were made for any of the arresting officers to carry video recording equipment. In this regard the detective sergeant's unchallenged evidence was that:
When you're dealing with an offence of this nature and going into a house of a ‑ you don't really know what you're going to be confronted with. It's just not practical to be running in there with video equipment as you're entering the premises. The main objective when you enter the premises is to secure the premises and secure the people inside the premises…
…
In my 31 years' service in frontline policing I have never been involved in an execution of a search warrant where on the initial going into the house and securing the scene and the people inside the house have we ever taken a video-recorder with us. (ts 98)
The police arrived at the house at 12.22 pm and immediately went inside (shouting 'police, search warrant' as they did so). Detective Sergeant Leonhardt was in the lead, and he was followed in turn by Detective Mulhall, Detective Glynn and Detective Powell. They found the appellant seated on a couch in the lounge room with his cousin Justin Bullock seated to his right. The appellant then stood up and placed his hands on top of his head. Detective Mulhall turned the appellant around towards the couch in order to handcuff him. It was the evidence of the first three detectives who entered the lounge room that as this was happening, the appellant turned to Justin Bullock and said:
I really fucked up with that girl the other night.
It was also their evidence that Bullock responded:
I don't know what you mean.
And the accused said:
I can hardly remember it but I really fucked up.
Bullock then said:
Shut the fuck up.
It was the evidence of the fourth detective to enter the lounge room (Detective Powell) that once the appellant was secured, he sat on the couch, turned slightly towards his cousin and stated:
I've fucked up. I've fucked up really bad.
The detectives departed the house with the appellant at approximately 12.42 pm. He was placed in the rear of a police vehicle and taken to a video interview room in Curtin House at Perth. Apart from the detectives telling the appellant that he was being held in connection with the murder of Dan Gojiao, there was no other conversation of significance before the formal interview commenced at 2.07 pm.
At the start of the interview and prior to being cautioned, the appellant was told that one of his rights was that he could contact a lawyer. The questioning then proceeded without any further reference to that right, until the appellant himself requested a lawyer approximately halfway through the interview. There was then some further brief questioning and the detectives offered the appellant a telephone so that he could make a call to a lawyer. The appellant did not immediately take up that offer, and there was then the following exchange:
Are you happy to continue with this interview?‑‑‑Yeah.
After the interview continued for another eight minutes the appellant again said that he wanted a lawyer. There was then a discussion as to how the appellant would go about contacting a lawyer, followed by a break in the interview while one of the detectives fetched a telephone book. When the interview resumed, the appellant used the telephone provided in an unsuccessful attempt to contact the Legal Aid Commission.
The appellant was then reminded once again about the caution and the questioning resumed. It was at this point of the interview that the appellant was questioned about the unrecorded statement at the time of his arrest, and he denied making an admission as alleged. Not long afterwards the appellant was asked if he wanted 'to try again for your lawyer?' That resulted in a further call to Legal Aid and advice being given to the appellant that he should cease answering questions. The interview then terminated (at 4.19 pm).
At the very beginning of the interview and before he was cautioned, the appellant claimed that he was 'really wasted from smoking cannabis'. He also told the detectives that he had been smoking cannabis 'all day on and off'. After being cautioned, he said that 'I'm really stoned and … I can't handle the questions at the moment'. The appellant was then told by Detective Mulhall that it was a serious matter and that he had been given the caution. In response to a specific question the appellant acknowledged that he understood the caution and that he did not have to talk to the detectives. During the course of the interview the appellant was reminded five further times of his right not to answer questions.
The appellant's demeanour on the video did not suggest that he had any difficulties in understanding or responding to the questions that were put to him. At all times the detectives were very polite towards him, and (subject to one appropriate exception) they did not ask any leading questions.
A blood sample was obtained from the appellant approximately four hours after the interview came to an end. The later analysis of this sample revealed the presence of tetrahydrocannabinol (THC) at a concentration of less than 0.5 micrograms per litre.
It was the evidence (at the voir dire) of the expert toxicologist Professor D A Joyce that this was a relatively low concentration of THC which nevertheless left open the possibility that the appellant was intoxicated by cannabis at the time of interview. The professor had viewed the video, and although the appellant had no overt signs of intoxication, it was possible that he had 'a persisting impairment of thinking functions'. If so, then the impact on the appellant would have had much the same effect as a mild degree of alcohol intoxication.

The trial judge's rulings

As the appellant did not testify on the voir dire, there was no direct evidence of his intoxication with cannabis beyond the results of analysis of his blood sample. The appellant nevertheless relied on the fact that he had consumed cannabis as rendering his unrecorded statement and answers to questions during the interview involuntary, and/or inadmissible on discretionary grounds. The appellant also contended that there was no 'reasonable excuse' (within the meaning of s 118 of the Act) for the absence of an audiovisual recording of the first statement. He further submitted that during the recorded interview he had been denied a reasonable opportunity to communicate with a legal practitioner (in breach of s 138(2)(c)).
The trial judge found that there was a 'reasonable excuse' for the absence of an audio visual recording of the admission made at the time of arrest. In this regard, his Honour accepted the evidence of Detective Sergeant Leonhardt that it was not practicable to have audio visual equipment running as the detectives entered the premises on the off chance that something might be said or 'blurted out'.
As to the issue of voluntariness, his Honour accepted that the extent of the appellant's cannabis intoxication at the time of his arrest would have been greater than later in the afternoon when the interview process commenced. Nevertheless, the evidence was not persuasive of the degree of cannabis intoxication, and his Honour was 'thrown back' to a consideration of what had actually occurred. As to that, the accused had 'responded to the police presence by the statements that were made until very quickly he was urged not to say anymore and he did not say anymore'. His Honour was satisfied on the balance of probabilities that what the appellant had said was in the exercise of his free choice to speak or remain silent. It was a statement made 'by way of a momentary decision when it was apparent to him why, in his view, the police were there'.
With regard to the recorded interview, the trial judge considered that the evidence of Professor Joyce did not establish the extent of cannabis intoxication or the impact that it might have had upon the accused's decisions whether to speak or not, what to say, and whether to participate in the interview process. This being so his Honour was thrown back on the 'limited tool' of simply viewing the video itself. In this respect, his Honour was satisfied from the appellant's demeanour and manner of answering questions that the statements made on video were voluntary.
The trial judge found that the appellant was not denied a reasonable opportunity to communicate or to attempt to communicate with a lawyer. In that regard, the issue had been raised at a very early stage of questioning, but the appellant had been content to continue with the interview. His Honour did not consider that s 154 and s 155 of the Act had any application to the questions before him, and in this regard relied upon his reasons as expressed in Malgil v The State of Western Australia [2008] WASC 290.
His Honour also considered that the question of discretionary exclusion of the video record of interview did not arise in light of the conclusion he had reached about voluntariness and his grounds for that conclusion. There was nothing which would make it unfair to the appellant to admit the evidence and his Honour could detect no other ground for the discretionary exclusion of the same.

The grounds of appeal

On 5 October 2009 Wheeler JA granted the appellant leave to appeal on two grounds. The appellant was granted leave to add a third ground during the hearing of the appeal. Those grounds are as follows:
Ground 1 ‑ Statement not recorded via audio‑visual means:
1.The learned trial Judge erred both in law and in fact and there was a miscarriage of justice when he failed to exclude pursuant to Section 118(3) of the Criminal Investigation Act 2006 ('the Act') a statement made by the Appellant;
Particulars:
a)around four days after the offence was committed the police apprehended the Appellant at a house in Perth;
b)when they entered the house the Appellant allegedly made a statement adverse to his interests ('the statement');
c)the statement was not recorded by either audio or visual means;
d)there was no reasonable reason why it wasn't recorded.
Ground 2 ‑ Video record of interview:
2.The learned trial Judge erred in law and in fact and there was a miscarriage of justice when he failed to exclude as not voluntary and/or unfair the Appellant's video record of interview ('the interview');
Particulars:
a)the Appellant did not want the interview to proceed because;
i)he was 'stoned' from smoking cannabis;
ii)he wanted to obtain a lawyer and asked for one several times;
b)despite the issues raised by the Appellant in (a) above, the police continued asking questions and receiving answers;
c)eventually a lawyer was obtained and the Appellant from that point didn't answer any more questions.
Ground 3
2.The learned trial Judge erred both in law and fact, and there was a miscarriage of justice, when he failed to adequately consider Sections 154 & 155 of the Criminal Investigation Act 2006 ('the Act'):
Particulars:
a)the police were entitled to detain the Appellant for the purpose of interviewing him (S139(2)(c) );
b)a DVD containing the Appellant's record of interview was relied upon by the State ('the thing') (S 154(2)(a) & S 5(1)(d)(i));
c)the Appellant was, at the time the thing was obtained, entitled to a reasonable opportunity to communicate with a legal practitioner (s 138(2)(c) & (3));
d)the Appellant was denied a reasonable opportunity to communicate with a legal practitioner whilst the thing was obtained;
e)the thing was only admissible pursuant to Section 155 of the Act (S 154(2)(c) & (d));
f)His Honour erroneously determined Section 155 had no application (t-s 160B).
It should be noted that the first ground does not challenge the trial judge's common law determinations in respect of the unrecorded admission.

The relevant common law principles

A confessional statement (or admission) by an accused person can be received into evidence if there is proof on the balance of probabilities that it was made voluntarily (R v Lee (1950) 82 CLR 133, 144). In McDermott v The King (1948) 76 CLR 501 Dixon J held:
This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary (511).
In Collins v The Queen (1980) 31 ALR 257 Brennan J outlined the correct approach to the determination of whether or not a confession was voluntary:
The conduct of police before and during an interrogation fashions the circumstances in which confessions are made and it is necessary to refer to those circumstances in determining whether a confession is voluntary. The principle, focussing upon the will of the person confessing, must be applied according to the age, background and psychological condition of each confessionalist and the circumstances in which the confession is made. Voluntariness is not an issue to be determined by reference to some hypothetical standard: it requires a careful assessment of the effect of the actual circumstances of a case upon the will of the particular accused (307).
In cases where the accused's mind was affected by a mental condition or by intoxication with alcohol or drugs, the issue of voluntariness will depend on whether or not he understood what he was doing. In R v Buchanan [1966] VR 9 the Victorian Court of Appeal held that a confession made by an accused while suffering the effects of a head injury was voluntary. Sholl JA stated:
Now the important point, as it seems to me, is that in a case of the present kind there is no suggestion in the evidence that there was a suspension of the faculty of judgment, and the mere reduction of that faculty by head injury or drink could not be held to be sufficient to render a confession or admission involuntary in the legal sense. It is always, as has been said, a question of degree, but for myself I would not be prepared to exclude such a statement as involuntary unless the evidence showed that … the accused was incapable of appreciating that he had a choice to remain silent, or incapable of exercising sufficient volition to give effect to what he knew was such a right of choice (15).
More often, the admissibility of a confession in such circumstances will turn upon whether there should be a discretionary exclusion of the evidence. If the evidence is admitted, the accused's state of mind at the material time is always relevant to the jury's determination of what weight should be given to the confession (Sinclair v The King (1946) 73 CLR 316, 336, Jackson v The Queen (1962) 108 CLR 591, 596).
Once the prosecution proves that a confession was made voluntarily, it is prima facie admissible. The onus is then on the accused to establish on the balance of probabilities a 'substantial reason' why the confession should be excluded in the exercise of the court's discretion (Lee (152 ‑ 154)). There are three possible bases for a discretionary exclusion of a voluntary confession. These are that it is unfair to the accused to admit the confession, that public policy considerations make admission of the evidence unacceptable, or that the prejudicial effect of the statement outweighs its probative value (R v Swaffield (1998) 192 CLR 159 [51]). The focus of the unfairness discretion is on the rights of the accused whereas the public policy discretion is concerned with matters of public interest. The third discretion focuses on the probative value of the evidence and guards against a miscarriage of justice (Swaffield [52]). Depending upon the particular circumstances, these various considerations may well overlap (Swaffield [74]).
The unfairness discretion is not concerned with whether the police acted unfairly, but with whether it would be unfair to the accused to use his confession against him (Lee (154); Van der Meer v The Queen [1988] HCA 56; (1988) 82 ALR 10, 26). The prime concern of the unfairness discretion is the potential unreliability of the confession, but it is not the only concern. There may be unfairness to the accused because the confession might not have been made at all, or might have been made in a different form, if the interrogation had been conducted properly (Van der Meer (20); Swaffield [71]).
The line between the unfairness and public policy discretions is sometimes blurred (Swaffield [54]). This is because the question of unfairness is often taken into account in the exercise of the public policy discretion (Bunning v Cross (1978) 141 CLR 54, 74 ‑ 75). However, unfairness is only one of the relevant factors in the exercise of this discretion which focuses on broader questions of 'high public policy' favouring the exclusion of any evidence which has resulted from unlawful or improper conduct by police (Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177, 202 (Deane J)). The exercise of the public policy discretion also requires a balancing of competing policy considerations. In Pollard, Deane J held:
In any case where a voluntary confessional statement has been procured by unlawful conduct on the part of a law enforcement officer, there is conflict between the public interest in ensuring observance of the law by those entrusted with its enforcement and the public interest in the conviction and punishment of those guilty of crime. In the balancing process to resolve that conflict, the weight of the competing considerations of public policy will vary according to the circumstances of the particular case. The weight to be given to the public interest in the conviction and punishment of crime will vary according to the heinousness of the alleged crime or crimes and the reliability and unequivocalness of the alleged confessional statement. The weight to be given to the principal considerations of public policy favouring the exclusion of the evidence will vary according to other factors of which the most important will ordinarily be the nature and the seriousness of the unlawful conduct engaged in by the law enforcement officers. In that regard, a clear distinction should be drawn between two extreme categories of case. At one extreme are cases in which what is involved is an 'isolated and merely accidental non-compliance' (Bunning v Cross, 78) with the law or some applicable judicially recognized standard of propriety. In such cases, particularly if the alleged offence is a serious one, it would ordinarily be quite inappropriate to exclude evidence of a voluntary confessional statement on public policy grounds. The critical question in those cases will be whether the evidence should or should not be excluded on the ground that its reception would be unfair to the accused. At the opposite extreme are cases where the incriminating statement has been procured by a course of conduct on the part of the law enforcement officers which involved deliberate or reckless breach of a statutory requirement imposed by the legislature to regulate police conduct in the interests of the protection of the individual and the advancement of the due administration of criminal justice. … . In such cases, the principal considerations of public policy favouring exclusion are at their strongest and will ordinarily dictate that the judicial discretion be exercised to exclude the evidence (203 ‑ 204).

The relevant provisions of the Act

The Criminal Investigation Act 2006 (WA) is now the primary source of police powers in this state. It has amalgamated the statutory powers previously in the Police Act 1892 (WA) and the Criminal Code 1914, codified some common law police powers, and also introduced additional police powers.
One of the most important new powers is the power to detain arrested suspects for investigative and other purposes. The Act also counterbalances the increase in police powers by imposing significant restraints on their exercise, and conferring certain rights on suspects which minimise the potential for abuse.
Section 45 relates to the execution of search warrants and it provides:
45. Search warrant, execution of
(1)...
(2)If reasonably practicable, an audiovisual recording must be made of the execution of a search warrant.
…
Section 118 relates to the admissibility of any unrecorded admissions by an accused and it replaces the previous s 570D of the Criminal Code. Relevantly it provides:
118. Admission in serious case inadmissible unless recorded
(1)In this section ‑
admission means an admission made by a suspect to a police officer …, whether the admission is by spoken words or by acts or otherwise;
…
reasonable excuse, for the absence of an audiovisual recording of an admission, includes -
(a)the admission was made when it was not practicable to make an audiovisual recording of it;
(b)equipment to make an audiovisual recording of the admission could not be obtained while it was reasonable to detain the suspect;
(c)the suspect did not consent to an audiovisual recording being made of the admission;
(d)the equipment used to make an audiovisual recording of the admission malfunctioned.
(2)This section applies in respect of a suspect who is ‑
…
(b)an adult charged with an indictable offence that cannot be dealt with by a court of summary jurisdiction.
(3)On the trial of the suspect for the offence, evidence of any admission by the suspect is not admissible unless ‑
(a)the evidence is an audiovisual recording of the admission; or
(b)in the absence of an audiovisual recording of the admission ‑
(i)the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for the absence; or
(ii)the court decides otherwise under section 155.
(4)Subsection (3) does not apply to an admission by a person made before there were reasonable grounds to suspect that he or she had committed the offence.
Division 2 of pt 12 of the Act is concerned with arrests without warrant. Section 128 provides:
128. Arrest power for offences
(1)In this section ‑
serious offence means an offence the statutory penalty for which is or includes imprisonment for 5 years or more or life.
(2)A police officer or a public officer may arrest a person for a serious offence if the officer reasonably suspects that the person has committed, is committing, or is just about to commit, the offence.
Division 5 of pt 12 of the Act confers rights on suspects and also imposes obligations on arresting officers. It includes the following provisions:
137.     Arrested people, rights of
…
(2)This section applies to a person who has been arrested by an officer, no matter under what authority or written law.
(3)The arrested person is entitled ‑
(a)to any necessary medical treatment;
(b)to a reasonable degree of privacy from the mass media;
(c)to a reasonable opportunity to communicate or to attempt to communicate with a relative or friend to inform that person of his or her whereabouts; and
(d)if he or she is for any reason unable to understand or communicate in spoken English sufficiently, to be assisted in doing so by an interpreter or other qualified person.
138.     Arrested suspects, rights of
(1)In this section ‑
arrested suspect means a person who is under arrest having been arrested -
(a)under section 128, under an arrest warrant, or under another written law, on suspicion of having committed an offence; or
…
(2)In addition to the rights in section 137 an arrested suspect is entitled ‑
(a)to be informed of the offence for which he or she has been arrested and any other offences that he or she is suspected of having committed;
(b)to be cautioned before being interviewed as a suspect;
(c)to a reasonable opportunity to communicate or to attempt to communicate with a legal practitioner;
(d)if he or she is for any reason unable to understand or communicate in spoken English sufficiently, not to be interviewed until the services of an interpreter or other qualified person are available.
(3)The officer in charge of the investigation must, as soon as practicable after the arrest of an arrested suspect ‑
(a)inform the suspect of his or her rights under section 137(3)(c) and subsection (2)(c); and
(b)afford the suspect his or her other rights under section 137 and subsection (2).
(4)An officer may refuse an arrested suspect his or her right to communicate or to attempt to communicate with a person if the officer reasonably suspects that the communication would result in ‑
(a)an accomplice taking steps to avoid being charged;
(b)evidence being concealed, disturbed or fabricated; or
(c)a person’s safety being endangered.
139.     Arrested suspects, detention of
(1)In this section ‑
arrested suspect means a person who is under arrest having been arrested under section 128, or under another written law, on suspicion of having committed an offence but who has not been arrested under an arrest warrant.
(2)A police officer or a public officer may detain an arrested suspect after the suspect is arrested for the purposes of ‑
(a)doing a search under section 133 or 135;
(b)investigating any offence suspected of having been committed by the suspect;
(c)interviewing the suspect in relation to any offence that the suspect is suspected to have committed; and
(d)deciding whether or not to charge the suspect with an offence.
(3)An arrested suspect who is detained under subsection (2) must be detained in the company of an officer and not in a lock‑up or other place of confinement, unless the circumstances make it impracticable to do so.
(4)The detention of an arrested suspect must be in accordance with section 140.
(5)The detention of an arrested suspect in contravention of section 140 is not unlawful if it occurs due to circumstances that are not reasonably foreseeable.

During cross‑examination it was put to Sergeant Lydiate that there were some particular anomalies between the appellant's left index fingerprint, and the identified print on the bottle. The sergeant did not agree that these anomalies amounted to dissimilarities but said that they were explicable by reason of the differing viscosities of blood and ink, and the distortions that occur when a finger is placed on a curved surface as distinct from a flat surface such as paper (ts 1291 ‑ 1293). Sergeant Lydiate also referred to certain minute aspects of the identification including pores in the skin. Accordingly:
There is minute information. Not simply are we looking at the characteristics of the second level details. We can also see third level detail of this impression which is absolute in regards to making that identification. It is beyond any doubt. (ts 1294)
The fingerprint identified as that of the appellant was made in the deceased's blood. It was Sergeant Lydiate's evidence that there were three possible ways (or 'scenarios') in which this could have occurred. The first was that blood present on the finger was transferred to the surface of the bottle upon contact. The second was that the finger made contact with blood already present on the surface of the bottle. The third possibility was that the fingerprint was already present on the surface of the bottle when later 'irrigated' with blood (ts 1266). With either of the first or second scenarios the blood would have had to be wet (ts 1271). The sergeant considered the third scenario to be most unlikely because the identified print was a 'positive impression' of the ridges, and a series of tests he had conducted irrigating fingerprints on dry Corona beer bottles showed that there was no 'irrigation effect to any of the ridges' (ts 1267 ‑ 1271).
During evidence‑in‑chief Sergeant Lydiate was not asked to express his opinion as to which of the first two scenarios was the most likely. However, during cross‑examination it was put to him that there was a 'halo effect' around the identified print due to the presence of excess blood, which meant that the excess blood had been on the bottle and not the finger (ts 1275 ‑ 1276). Sergeant Lydiate's response was that 'the halo effect is present in either scenario when it comes into contact with a bottle'. However, with the identified print, the halo effect was present in only part of the areas of contact, and the other part of the print had 'positive ridge blood on it'. This meant that blood had been on the finger at the time of contact with the bottle (ts 1277).
During cross‑examination Sergeant Lydiate agreed that there were consistencies between the unidentified fingerprint (81901) and the appellant's left index fingerprint (85513) indicating a 'double tap' on the bottle as a result of that finger touching it twice (ts 1280). He also agreed that the absence of a halo and the positive impression of fingerprint (81901) meant that there was blood on the finger at the time it was made (ts 1280). However, the sergeant did not agree that the halo on parts of the identified print (85513) meant that it was made before the unidentifiable print (81901). In that regard, the halo effect in respect of (85513) had no part to play in sequencing when the impressions were made (ts 1281). Furthermore, from his evaluation of the deposition of those two impressions, one was on top of the other, and the top most one was the identified print (85513) (ts 1282).
It was also put to Sergeant Lydiate that the unidentifiable print (81900) was in a position adjacent to the left index finger where one would expect the left middle finger to have made contact with the bottle. The sergeant agreed with this proposition (ts 1283). He also agreed that there appeared to be a double impression of that left middle finger. Accordingly, there was 'a building picture that there has been movement of the hand on the bottle' (ts 1283).
The defence called its own fingerprint expert, Mr John Clark, of Sacramento, California. Mr Clark was a qualified latent fingerprint analyst with 40 years experience in comparing and identifying fingerprints. He had closely examined enlarged photographs of the fingerprints on the Corona beer bottle.
Mr Clark testified in considerable detail as to the halos and characteristics of particular fingerprints in the photographs (ts 1549 ‑ 1555). Based on those observations, it was his evidence:
[I]t would be my opinion that all of these impressions are a three finger simultaneous impression double tap of the left index, middle and ring finger of subject Wright. The left ring finger appears to have been placed in blood existing on the surface and blood is clearly visible between the left ring finger and the left middle impressions in between the two of them. (ts 1551).
Mr Clark also observed that the unidentified fingerprint (81901) had a halo around it which indicated that blood was on the surface when that was placed on the bottle (ts 1551 ‑ 1552). The identified fingerprint (85513) had a halo in the vicinity of the phalangal crease and at the base of the finger but had a 'clear sharp edge' at the top. These characteristics indicated that:
[T]here was blood on the finger here prior to this touch by all appearances here on that left‑hand side although it is has also been placed in blood at the lower portion that existed on the bottle. (ts 1552)
It was also Mr Clark's opinion that the blood on the top most portion of the appellant's left index finger which made the fingerprint impression (85513) came from the adjoining fingerprint impression (81901). His evidence‑in‑chief in that regard was as follows:
Can I ask you, sir, do you therefore agree or disagree with the conclusion of Sergeant Lydiate that the evidence visible in these photographs and on the bottle - these photographs of the bottle - indicates that there was blood on the finger prior to there being blood on the bottle?---On a portion of that finger, yes. The area at the base of the finger and at the tip of the last joint of the finger - there was blood on that bottle when that impression was made because of those halos. Now, the area along the left‑hand side, yes, it would appear that there was blood on the finger during that impression, but it appears, in my opinion, based upon what I can observe, that that blood came from the bottle when exhibit or impression 81901 occurred. (ts 1555)
Although Mr Clark made the assumption during his evidence‑in‑chief that blood was already on the bottle at the time that it was first touched by the appellant, he acknowledged during cross‑examination that this was not necessarily so:
Do you know with any certainty based upon your observations Mr Clark, that the blood on the fingers that we are concerned with had come as a consequence of touching the area marked by 81901, or could the blood have come on the fingers in some other way?---Because of the halo on the one on the right, it would have been the first impression, so it would have come from that area of the bottle. If there was blood on the finger prior to touching 81901, it would give the same appearance.
…
So there could have been blood on the finger prior to making the impression that is described as 81091?---81901. There could have been, yes. I cannot rule that out as not. (ts 1556)
Accordingly, Mr Clark and Sergeant Lydiate were in substantial agreement as to the significance of the fingerprints and finger marks on the bottle. In essence, they agreed that there was evidence of movement of the appellant's hand on the bottle resulting in him touching it twice. There was no way of knowing whether there was blood on his fingers beforehand, but as a result of the first touching, some of the blood may have been reapplied to the bottle at the time of the second touching.
It is relevant to note that there was no evidence before the court that the appellant's fingerprints were found on any other item within the bin. Nor was there evidence of any bloodstains on any other items in the bin.

The evidence as to the watch

When the police executed a search warrant at the house of the appellant's aunt on 12 October 2007 they found a watch on a desk in his bedroom (ts 847 ‑ 848). During his evidence the appellant admitted that the watch was his and that he had been wearing it on the night of 8 October 2007 (ts 1330).
The watch was forensically examined and subjected to presumptive tests for blood. Five areas gave negative reactions and four areas gave positive reactions. The positive reactions came from the winder of the watch, from just behind the winder towards the back of the watch, and from two areas on the band of the watch (ts 1054).
The areas on the winder and just behind the winder of the watch were sampled together (for DNA analysis) and a DNA profile was recovered (ts 1054). It was not possible to recover a DNA profile from the areas presumptive for blood on the band of the watch. A third sample from the whole of the surface of the watch also failed to produce any DNA result (ts 1055).
As the DNA profile obtained from the winder area was a weak partial profile (ts 1056) it underwent a process of amplification known as qiagen treatment. This treatment had the effect of purifying and concentrating the DNA so that it increased in quality sufficient for it to be fully detected and reported on (ts 1049).
The DNA profile so recovered from the winder of the watch matched the deceased's DNA profile. The probability of finding that profile if the DNA on the winder had come from someone other than and unrelated to the deceased was less than one in 25 million (ts 1058).

DNA analysis of stain 'O'

The deceased's trousers were also subjected to forensic examination including DNA analysis. A total of 50 stains on the trousers gave positive reactions when screened presumptively for blood (ts 1041) and one of those stains on the outside of the front left waistband (stain 'O') produced a mixed DNA profile. The mixture contained male DNA and was consistent with having come from at least three individuals (ts 1042).
The initial DNA profile recovered was at a low level so a subsample was taken and subjected to the qiagen process (ts 1043 ‑ 1044). The profile that was ultimately recovered contained alleles consistent with the reference DNA profiles of the deceased, the appellant, Mircarla Firman and Paul Dowson (ts 1042). The latter two persons had been with the appellant on 8 October 2007, and had 'had sex' with him that afternoon (ts 312, 318, 1318).
According to Dr Paula Hallam, the forensic biologist who carried out the DNA analysis of stain 'O':
The probability that an individual chosen at random would have a DNA profile that would not exclude them as a possible contributor to this mixture is less than one in 3,400. (ts 1043)
The statistical analysis that Dr Hallam performed in this regard is known as the 'random man not excluded calculation'. It was a statistical analysis of the chance that anyone chosen at random from the population would also have a DNA profile that would not exclude them from the mixture. It was a measure of how common the particular combination of alleles in the mixture was in the population (ts 1035, 1043).
However, it was also Dr Hallam's evidence that although she could not exclude the deceased, the appellant, Mircarla Firman or Paul Dowson as being possible contributors, in 'a mixture as complex as this … that non‑exclusion may be coincidental' (ts 1043). As to the manner in which Ms Firman's and Mr Dowson's DNA may have contributed to the mixture, Dr Hallam explained that there could be 'secondary transfer' of that DNA (ts 1080).
The defence called an expert molecular geneticist, Mr B L McDonald who did not agree with Dr Hallam as to the statistical significance of the DNA results obtained from stain 'O'. He regarded Dr Hallam's calculation as 'fundamentally flawed' and explained his reasons for this conclusion in considerable detail (ts 1490 ‑ 1497). As I understand Mr McDonald's evidence, his criticism was that the calculation assumed that the four individuals were 'not excluded' from the mixture when it was not known whether or not all of their alleles were present but undetected. In that regard, the calculation was asking:
What proportion of the population would have both of their alleles present at each one of those loci that have been used for the calculation, and she has produced a figure of one in 3,400 people. (ts 1491)
Mr McDonald considered that this method of calculation 'over inflates the rarity' of people in the general population who are 'not excluded from the mixture' (ts 1495).
The issues between the two experts were very difficult for any layperson to understand. In my opinion, the evidence of the statistical basis on which Dr Hallam had made her calculation was not sufficiently exposed to view to enable any determination of which expert was right. Furthermore, Dr Hallam herself conceded that the non‑exclusion of the four possible contributors might be coincidental. Accordingly, I am unable to give any weight to her 'random man not excluded calculation' for stain 'O'.

The unrecorded statement

The last remaining area of the evidence which implicated the appellant as the offender was the unrecorded statement he made at the time of his arrest. The first three detectives who entered the lounge room prior to the statement being made gave one version of it, and the fourth police officer gave a different version. The appellant in his evidence gave yet a third version. It was also the appellant's evidence that there was a lot of 'yelling and shouting going on' at the time and that his cousin was 'trying to understand what the cops were there for' (ts 1333). According to the appellant:
I was about to explain something to my cousin and I thought I better not. (ts 1365)
It is also the appellant's evidence that when he said at the time of his arrest: 'I fucked up' he was referring to the fact that he had been wrong to leave 'a dead body on the side of the road' (ts 1365).
The appellant's cousin Justin Bullock was called as a prosecution witness. When asked whether the appellant had said anything at the material time, it was Mr Bullock's evidence:
I don't remember what he said. I think I heard him say something but I couldn't tell you what he said. As I said there was a lot of noise and confusion. It was a bit of a shock to have the police just run through the front door. (ts 394).
Two of the detectives were not cross‑examined at all as to the unrecorded statement by the appellant, and it was not put to the other two detectives that they were in any way untruthful with their evidence. The issue as to which version was to be accepted turned upon the reliability of the appellant's evidence and the question whether or not one or more of the detectives were mistaken. Detective Powell was the last of the police officers to enter the lounge room and it may well be that she heard a different statement by the appellant than the one referred to by the first three police officers. The jury, by its verdicts, rejected the appellant as a credible witness. In my view, it should be assumed that the jury accepted the evidence of the first three police officers.

The missing backpack

An anomaly in the evidence overall arises from the evidence of Constable Kennedy who was one of the first officers on the scene at 6.10 am on 9 October 2007. According to Constable Kennedy, when she arrived she noticed a pair of grey corduroy‑style pants, a pair of black shoes, and a cream coloured backpack all approximately three metres behind the body and near the wall of 75 Oswald Street (ts 451, 989). No backpack was seen by any other officer, and Constable Kennedy was mistaken about the colour of the shoes which were red (exhibit 12(30)). When the constable later reported what she had seen a thorough search was made for the cream backpack but it was not found. The evidence generally shows that once the police arrived there was no opportunity for any person to remove the backpack (ts 989 ‑ 990)
The surveillance footage from the train and Stirling Train Station (exhibit 1) shows that Ms Gojiao was carrying a backpack. However, it was predominantly black in colour with a pinky‑red insert around the sides. Furthermore, the backpack had a rounded top, whereas Constable Kennedy described the one she saw as being 'square in shape' (ts 989).
The police had reason to believe that the missing backpack contained a red polo shirt carrying the deceased's employer's logo which she had worn on the evening of 8 October 2007. On 15 October a shirt matching that description was found on a cycleway near the freeway in Gwelup (ts 953). When a sample from the inside of the shirt was analysed by Dr Hallam it produced a mixed DNA profile consistent with the deceased's profile and the profile of one Allan Ross Richards. Richards was called as a witness and admitted to having found such a discarded shirt near the freeway and having tried it on (ts 420). There was no reason to suspect Richards as having any involvement in the death of Ms Gojiao.

An analysis of the evidence generally

In the end, the admissible evidence established a very strong circumstantial case that the appellant was the offender who killed Ms Gojiao. In coming to their verdicts, the jury necessarily rejected the appellant's version of events and drew the inference as the only reasonable inference from all of the relevant circumstances that he was the person who sexually penetrated and murdered Ms Gojiao. The relevant circumstances were not just those that placed the appellant in close proximity to Ms Gojiao at the time that she left the train station and at the time that she received the injuries resulting in her death. Other circumstances included the results of the forensic examination of the Corona beer bottle, and of the watch belonging to the appellant. There was also the unrecorded statement that the appellant had allegedly made at the time of his arrest. In summary, the relevant circumstances included the following:
•The appellant's left index fingerprint impressed on the Corona beer bottle in blood which matched Ms Gojiao's DNA profile.
•The evidence from two experts that other unidentified fingerprints and finger marks on the bottle were also his, and that he had touched the bottle twice with more than one finger.
•The improbability (on the appellant's version of events) that he accidentally touched the bottle twice while rummaging through the bin. (Nevertheless, it should not be assumed that at that time the bottle was in the bottom of the bin where it was later found. Constable Jarvis' evidence that he heard the 'sound of glass moving' leaves open the possibility that the bottle was somewhere towards the top of the bin at the material time).
•The improbability (on the appellant's version of events) of him not noticing blood on his left hand after touching the bottle. (In this regard, the expert evidence that the impressions of various of his fingers twice touching the bottle were made in blood is significant).
•The failure to find blood on any other item in the bin. (Thus supporting the inference that the blood on the bottle was dry at the time of being placed in the bin).
•The stains on the winder and band of the appellant's watch which tested positively for blood, and (in respect of the former) had a DNA profile matching that of the deceased. (On the appellant's version of events, he did not touch Ms Gojiao or approach much closer than two metres from her. The only possible explanation for her DNA on the winder of the watch is that the latter also came into contact with the bloodstained Corona beer bottle while the appellant was rummaging through the bin).
•The implausibility of the appellant's explanation for rummaging through the bin, namely that he was simply 'curious' as to what had been disposed of (in circumstances when the woman on the ground was seriously injured and he was assuming that she was dead).
•The conflict between the appellant's evidence that the relevant bin was only 'a couple of metres' from Ms Gojiao's position on the ground in front of number 75 Oswald Street, and the fact that the bloodstained Corona beer bottle was found in the bin for number 79 Oswald Street (some tens of metres away).
•Mr Tsan's observation (soon after Ms Gojiao left Stirling Train Station) of 'a girl and a man' both walking quite fast in a westerly direction along Cedric Street and crossing Ellen Stirling Boulevard in the direction of Oswald Street.
•The unlikelihood (on the appellant's version of events) that the offender would run towards a potential witness (the appellant) rather than away from him.
•On the appellant's version of events, the highly unlikely string of unfortunate coincidences which implicated him in the crime. (Namely, being on the same train as Ms Gojiao, being immediately behind her at the time of exiting the station, walking the length of Oswald Street on the same footpath without seeing Ms Gojiao, returning along that same footpath and happening upon the scene of the attack while it was still in progress, and then rummaging through the bin and accidentally touching the bloodstained bottle twice in such a way as to deposit blood on his watch but not any observable blood on his fingers.
•The unrecorded statement.

A very significant circumstance (on the appellant's version of events) is that he did not encounter Ms Gojiao when first walking along Oswald Street. According to him, after exiting the station and delaying no more than two or three minutes at the bus stand, he set off for the Innaloo Shopping Centre at the far end of Oswald Street. He was walking at a 'fairly fast pace' along the only footpath in Oswald Street yet did not see or catch up with Ms Gojiao.
The only reasonable inference in all of the circumstances is that Ms Gojiao was attacked before arriving at, and approximately 200 or 300 metres from her home. (It is hardly likely that she arrived home and then ventured out onto the street again). Accordingly, on the appellant's evidence he must have passed within five metres of Ms Gojiao while she was being attacked, and only a very short time after that attack commenced. When later returning along Oswald Street the appellant was able to look back and see what was happening under the tree from a distance of approximately 15 ‑ 20 metres. Therefore (on his version of events) it is highly unlikely that he would not have seen the attack on Ms Gojiao when he first walked past 75 Oswald Street.
Mrs Gascoigne's evidence does corroborate the appellant's version of events to some extent. She saw a man carrying a white shopping bag walk north along the footpath and then a few seconds later a person (whom she believed to be a separate individual) put something in a bin. However, her evidence does not exclude the possibility of the appellant being the offender. The IGA store was open that night (ts 268), and the first man she saw carrying a shopping bag may have been some other person who had been to the shopping centre. Another possibility is that after the man passed to the right out of Mrs Gascoigne's view he left the footpath and returned to the tree while in the shadows. In this regard, it is relevant to note that Mrs Gascoigne saw the first man 'veer off the footpath a little', and that when the second man went to the bin (which was situated between the footpath and the road) he was still in shadow.
Another relevant consideration is that the attack on Ms Gojiao bore all the hallmarks of an opportunistic offence. It is highly unlikely that the offender arrived at Oswald Street already armed with the bottle. The only reasonable inference is that he obtained the bottle from one of the bins, and most probably the bin at number 79.
The blood spots on the footpath strongly suggest that Ms Gojiao was first struck in the face while still on the footpath. The circumstances also suggest that she must have been disabled (perhaps by strangulation) by the time of the assault with the bottle. There is a strong possibility (if not a probability) that at some stage in between, the offender searched through nearby bins for a suitable weapon to penetrate Ms Gojiao. Such movements by the offender around the bins might be consistent with the two sightings by Mrs Gascoigne.
There are also some anomalies when Mrs Gascoigne's evidence is compared to that of the appellant, and to the evidence generally. One small anomaly is that she described the man walking north as carrying a 'cloth' shopping bag, whereas the appellant says it was plastic (as confirmed by the surveillance footage in exhibit 1).
I have already noted Mrs Gascoigne's apparent misunderstanding as to the numbering of houses on the opposite side of the street. However, regardless of these errors, her evidence that her view of the street to the right cut out 'about half way along number 77' must be correct. This is because her belief that the house opposite was number 79 (with the numbers running south) placed number 77 in the same position as it in fact was with number 75 opposite and the numbers running north.
The driveway of number 77 Oswald Street was on the left side of the house and within Mrs Gascoigne's field of view. Accordingly, there can be no doubt that the bin she was referring to in her evidence was the one at number 77. The bin at 79 Oswald Street in which the bloodstained Corona beer bottle was later found was completely out of Mrs Gascoigne's field of view. Accordingly, it was not the bin that Mrs Gascoigne was referring to, and her evidence was incapable of throwing any light on the issue of how that beer bottle came to be there.
With regard to the appellant, it is his evidence that the bin in which he saw a man put something was only a 'couple of metres' from where Ms Gojiao was lying on the ground. On the assumption that Ms Gojiao was then near the wall of number 75 in the vicinity of where her clothing was later found, the nearest bin was at the end of the driveway of number 77. That bin was much more than 'a couple of metres' away. I also consider that the position it was in was too far away to be consistent with the appellant's evidence (ts 1364, 1368) that while standing at it he looked at Ms Gojiao and said 'Are you alright?' or 'What's going on?'. The appellant's evidence that he rummaged through the bin (on what must have been the driveway of number 77) also cannot explain the presence of the Corona beer bottle (with his fingerprint) in the bin of number 79 some tens of metres away.
In my view, the collective impact of the very many circumstances which implicated the appellant as the offender completely overwhelmed the relatively scant circumstances (including those arising from the evidence of his aunt and Mr Farrell) which suggested that he was not. With regard to the missing backpack, I consider it probable that Constable Kennedy was mistaken in her evidence that there was a cream coloured backpack at the scene. In any event, that issue could have no bearing on the question whether the admissible evidence established the guilt of the appellant.
The overall assessment of the evidence must also take account of the jury's verdicts which form part of the record of the trial. In coming to those verdicts the jury necessarily rejected the appellant's evidence in all material respects. In my opinion, there is no real possibility that the jury's decision to disbelieve the appellant and reject his version of events was influenced by the trial judge's error in admitting the evidence of the video record of interview.
I am of that opinion for three reasons. Firstly, the admissions during the interview had limited probative value and were only significant to the extent that they provided the basis for the Edwards lie direction in respect of the appellant's denial of the oral statement made at the time of his arrest. Secondly, the evidence of that statement was admissible irrespective of the trial judge's error, and if the jury made an additional finding of an Edwards lie this did not materially advance the State's case or prejudice the appellant's case. Thirdly, the forensic and other objective evidence which was not seriously contested at trial provided a very powerful circumstantial case against the appellant. Accordingly, I am satisfied that full weight should be given to the jury's rejection of the appellant's evidence.
In my view the only reasonable inference from all of the relevant circumstances established by the admissible evidence is that it was the appellant who wielded the bottle which sexually penetrated Ms Gojiao and caused the injuries that resulted in her death. For this reason I am satisfied that the admissible evidence proves beyond reasonable doubt that the appellant committed the offences of which he was convicted.

Whether the proviso should be applied

I consider it to be self‑evident that the natural limitations on an appellate court in assessing the record of trial have not impeded the above process of reasoning so as to preclude the application of the proviso. Furthermore, and although the admission of the interview into evidence necessarily resulted in some limited unfairness, that unfairness was not significant. In my view the admission of the interview did not undermine the fundamental precepts of trial to such an extent as should deny the application of the proviso. Having regard to all of the circumstances, I consider that no substantial miscarriage of justice has occurred.

Conclusion

For the above reasons the appeal should be dismissed.