[2024] WADC 94
[2024] WADC 94 (PC) Page 1
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION : PERTH
CITATION : THE STATE OF WESTERN AUSTRALIA -v- MUNMURRIE [2024] WADC 94
CORAM : BOWDEN DCJ
HEARD : 1 NOVEMBER 2024
DELIVERED : 5 NOVEMBER 2024
PUBLISHED : 3 FEBRUARY 2025
FILE NO/S : IND 2090 of 2023
BETWEEN : THE STATE OF WESTERN AUSTRALIA
AND
QUINTON WAYNE MUNMURRIE
Catchwords:
Criminal law and procedure – Admissibility of electronic record of interview – Voluntariness – Criminal Investigation Act 2006 (WA) – Anunga rules
Legislation:
Criminal Investigation Act 2006 (WA)
Result:
Electronic record of interview ruled inadmissible on unfairness and public
[2024] WADC 94
[2024] WADC 94 (PC) Page 2
policy grounds
Representation:
Counsel:
The State of Western Australia
:
Mr G Brett
Accused
:
Mr T Hager
Solicitors:
The State of Western Australia
:
State Director of Public Prosecutions
Accused
:
Aboriginal Legal Service – Kununurra
Case(s) referred to in decision(s):
Bunning v Cross (1978) 141 CLR 54
EYO v The State of Western Australia [2019] WASCA 129
George v The State of Western Australia [2020] WASCA 139
Kelly v The State of Western Australia [2017] WASCA 221
Le-Ta v The State of Western Australia [2020] WASCA 14
Luo v The Queen [2020] WASCA 184
Mukevski v The State of Western Australia [2010] WASCA 138
Police v Dunstall [2015] HCA 26; (2015) 256 CLR 403
R v Anunga (1976) 11 ALR 412
R v Ireland (1970) 126 CLR 321
R v Lee (1950) 82 CLR 133
R v Pohl [2014] QSC 173; (2014) 244 A Crim R 56
R v Swaffield [1998] HCA 1; (1998) 192 CLR 159
R v Versac [2013] QSC 46; (2013) 227 A Crim R 569
The State of Western Australia v Gibson [2014] WASCA 240
Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396
[2024] WADC 94
BOWDEN DCJ
[2024] WADC 94 (PC) Page 3
BOWDEN DCJ:
1
Mr Munmurrie is charged with sexually penetrating JMR’s vagina without her consent with an unknown object on 15 February 2023.
2
The trial is to take place on 28 January 2025.
The application
3
Mr Munmurrie applies for an order that the electronic record of interview (EROI) conducted on 15 February 2023 be excluded on the basis of:
(i) a breach of subsection 140(3)(a) of the Criminal Investigation Act 2006 (WA), or in the alternate
(ii) the court’s residual discretion to exclude on the basis of unfairness.
The directions hearing
4
It was agreed by the parties that I view the EROI conducted with Mr Munmurrie and the footage of his arrest taken by the body worn camera of Detective Drew on 15 February 2023 in my chambers.
5
I was also provided with a transcript of the EROI. The evidence is what is contained in the EROI and body warn camera footage, not the transcripts which are merely an aid to my memory. The EROI is in parts difficult to hear but I accept that you can hear the additional remarks made by Mr Munmurrie referred to in the defence’s written submissions.
6
I was also assisted by helpful written submissions from both parties.
7
At the directions hearing the defence abandoned the ground relating to the alleged breach of subsection 140(3)(a) of the Criminal Investigation Act, as further material had been disclosed to them.
A brief summary of the alleged facts
8
It is alleged that on 15 February 2023 Mr Munmurrie and JMR, who knew each other from living on the streets, were homeless and sleeping rough.
[2024] WADC 94
BOWDEN DCJ
[2024] WADC 94 (PC) Page 4
9
The previous day they had been together in Forrest Place, and it appears they had smoked cannabis. Mr Munmurrie suggested to JMR that she accompany him to a squat on Stirling Street.
10
Upon arrival at the squat, JMR asked if she could sleep in a corner of the squat. Mr Munmurrie set up his bed opposite hers and JMR fell asleep.
11
JMR claims that she woke in the night to Mr Munmurrie pulling her pants down. She was lying on her stomach, and he was leaning on her back and stopping her from moving.
12
She says that she felt her vagina being penetrated but could not say whether it was with his finger or penis. She told him to get away and tried to push him off, but he pushed her down and continued to penetrate her for a period which she estimates was about 10 minutes.
13
Other people arrived at the squat, and it appears that Mr Munmurrie was disturbed by their arrival and got off JMR and went back to his bed. JMR pulled up her pants and hid in the corner.
14
Later that morning she saw her friend walking past and went over to her and reported what Mr Munmurrie had done.
15
She then walked to nearby Tranby House, told the staff that she had been raped, the police attended and in due course she was conveyed to Royal Perth Hospital.
Events prior to the EROI
16
The police located Mr Munmurrie on 15 February 2023 at Weld Square and at 9.17 am he was placed under arrest for suspicion of sexual penetration without consent.
17
At 9.22 am the body warn camera of Constable McCrossan captures the following exchange.
Detective Drew: Before we go any further, my partner gave you the caution that you don’t have to say anything unless you wish to do so. Do you understand what that means
Mr Munmurrie: Yeah.
Detective Drew: What does that mean?
Mr Munmurrie: Ah fuck knows.
[2024] WADC 94
BOWDEN DCJ
[2024] WADC 94 (PC) Page 5
Detective Drew: Do you have to talk to us, Quinton?
Mr Munmurrie: I don’t know [indistinct] you fucking maggot [indistinct] fuck me drunk.
Detective Drew: I need to know you understand the caution, do you – do you – do you understand? You’re not obliged to say or do anything, unless you wish to do so. So, do you have to speak to us?
Mr Munmurrie: Say what?
Detective Drew: Anything you say or do will be recorded. So that’s recorded on our body worn cameras.
Mr Munmurrie: [Indistinct] So what do you want me to say?
Detective Drew: Only what you want to say.
Mr Munmurrie: What – what’s that?
Electronic record of interview
18
The EROI commenced at 3.53 pm.
19
After having been told of his right to speak to a legal practitioner and family members or friends to inform them of his whereabouts, the right to obtain medical attention and an interpreter and to privacy from the mass media, the interview proceeds to a point where the officers explain to Mr Munmurrie his right of silence.
20
Detective First Class Constable Fanfield says:
Det FC/Con Fanfield: The next right is you have the right to be cautioned prior to being interviewed. I’m gonna go into that caution in just a second. Okay?
Mr Munmurrie: I [indistinct] charge me and put me in custody
Det FC/Con Fanfield: Yes. Okay. So – – –
Mr Munmurrie: [indistinct]
Det FC/Con Fanfield: Yeah, yep. So the caution is, mate, you don’t have to say – – –
Mr Munmurrie: [indistinct] bail
[2024] WADC 94
BOWDEN DCJ
[2024] WADC 94 (PC) Page 6
Det FC/Con Fanfield: Uh, one second, Quinton. I’ve just [got] to go through this one point here. It’s quite important that you listen. Okay? So Quinton, you don’t have to say or do anything unless you wish to do so.
Mr Munmurrie: Yeah.
Det FC/Con Fanfield: Anything you say or do will be recorded and may be given in evidence. So you don’t have to say or do anything. What does that mean to you?
Mr Munmurrie: [indistinct] I don’t know
Det FC/Con Fanfield: Do you have to answer any of my questions?
Mr Munmurrie: Yeah.
Det FC/Con Fanfield: Okay. Whose choice is it to answer questions that I ask you?
Mr Munmurrie: I don’t know.
(The first portion)
Det FC/Con Fanfield: Okay. Quinton, we spoke about it before, so it’s like you have a right to silence. Okay? I can’t force you to answer any of my questions. It’s very important that you understand that. So Ian can’t force you to answer any questions either. Does that make sense?
Mr Munmurrie: So I come here and I get charged.
Det FC/Con Fanfield: No.
Mr Munmurrie: I get char – – –
Det FC/Con Fanfield: No.
Mr Munmurrie: [indistinct] in custody.
Det FC/Con Fanfield: No.
Det S/Con Stilton: No, you’re not.
Det S/Con Stilton: You’re not. No one said that.
Mr Munmurrie: [indistinct]
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BOWDEN DCJ
[2024] WADC 94 (PC) Page 7
Det S/Con Stilton: We’ve not – – –
Det FC/Con Fanfield: No one said that at all.
Mr Munmurrie: Answer the question, don’t I?
Det FC/Con Fanfield: No. So Quinton, we’ll just go through this bit again. So you don’t have to say anything, unless you want to.
Mr Munmurrie: Mmm.
Det FC/Con Fanfield: Okay? So what does that mean to you? Do you – – –
Mr Munmurrie: [indistinct]
Det FC/Con Fanfield: Do you have to answer any question that I ask you?
Mr Munmurrie: (NO AUDIBLE REPLY)
Det FC/Con Fanfield: Can any – can I force you to answer questions?
Mr Munmurrie: Hmm.
Det FC/Con Fanfield: Is that a yes or a no?
Mr Munmurrie: Yeah.
(The second portion)
Det FC/Con Fanfield: All right. Quinton, I’ll rephrase it another way. All right? So you have a right to silence. Okay? No one can force you to answer any questions. Like in – like in the real world, no one can force you to do things. Okay?
Mr Munmurrie: Mmm.
Det FC/Con Fanfield: Now, honestly here, what I’m trying to say is that I can’t force you to answer any questions. What we’re trying to get here is a fair interview, so what that means is that anything you say to me is purely voluntary. I can’t force you to – to do this interview. I can’t force you to answer any questions. Okay? Now, I need to get your understanding of that, Quinton.
Mr Munmurrie: Yeah, yeah.
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BOWDEN DCJ
[2024] WADC 94 (PC) Page 8
Det FC/Con Fanfield: Okay? So do you have to answer any of my questions?
Mr Munmurrie: Yeah. Oh, I don’t know. Yes, no. Um – – –
Det S/Con Stilton: So if I – if I ask you 10 ques – I ask you 10 questions, Quinton, how many of those 10 questions do you have to answer?
Mr Munmurrie: None, or, like, all of them.
Det S/Con Stilton: None.
Det FC/Con Fanfield: Okay? And – – –
Det S/Con Stilton: Uh [indistinct] yeah.
Det FC/Con Fanfield: – – – so – – –
Mr Munmurrie: I [indistinct] the questions, er, youse asking a lot of questions. Just get to the [indistinct].
(The third portion)
Det S/Con Stilton: You – you need – we – we – we can’t ask you anything, and so you need to understand this is the most important part of the interview. We need to know that you understand your rights. So we need to know that you understand that you do not have to – – –
Mr Munmurrie: I just feel like – – –
Det S/Con Stilton: – – – answer [indistinct]
Mr Munmurrie: – – – [indistinct] like [indistinct]
Det FC/Con Fanfield: No, Quinton. No one said that. Okay? So I wanted to make that very]clear. No one has said that. Okay? And this is improper. No one can make that determination before an – an interview. Does that make sense?
Mr Munmurrie: Mmm.
Det FC/Con Fanfield: All right. So the main thing I want you to focus on now is exactly what we’re talking about. Okay, Quinton?
Mr Munmurrie: Yeah.
[2024] WADC 94
BOWDEN DCJ
[2024] WADC 94 (PC) Page 9
Det FC/Con Fanfield: So we’ll just take a rest and take a breather and focus on – on what I’m saying. Okay? So like I said before, okay, this next thing is what – you remember that right to silence that the lawyer was telling you on the phone?
Mr Munmurrie: Mmm.
Det FC/Con Fanfield: Okay? The lawyer instructed you that you don’t have to answer any questions. Okay? Because the questions that, um, you have answered, being who you are, that’s the only questions you have to answer. Now, are you – are you still with me?
Mr Munmurrie: Yeah.
Det FC/Con Fanfield: Yep. Do you have to answer any questions that I ask you?
Mr Munmurrie: No.
Det FC/Con Fanfield: Okay. Anything that you say or do will be recorded? And what does that mean to you, Quinton?
Mr Munmurrie: I don’t know.
Det FC/Con Fanfield: Okay. Uh, is there a camera in this room recording right now?
Mr Munmurrie: [indistinct] I don’t know.
Det FC/Con Fanfield: Yep. There’s a camera behind the window here, Quinton, and there’s microphones in the table. All right? So it records everything we say and so. Does that make sense?
Mr Munmurrie: Yeah.
Det FC/Con Fanfield: Okay. Now, that recording may be used in evidence. So what that means is that recording might be used in court. Okay? So, um, you just need to understand that everything that we talk about in this room can be played in court if – if it goes down that way. Does that make sense?
Mr Munmurrie: Yeah.
[2024] WADC 94
BOWDEN DCJ
[2024] WADC 94 (PC) Page 10
Det FC/Con Fanfield: Okay. So just to make sure, like Ian said, how many question – if Ian asks you a question, do you need to answer his questions?
Mr Munmurrie: [indistinct]
Det FC/Con Fanfield: Um – – –
Det S/Con Stilton: Are you happy that he understands?
Mr Munmurrie: No, I [indistinct]
Det S/Con Stilton: Are you happy that he understands – – –
Mr Munmurrie: [indistinct]
Det S/Con Stilton: – – – that? I’m – I’m not.
(The fourth portion)
Det FC/Con Fanfield: No. Um, so Quinton, um, are you – I just want to go one more time over it.
Mr Munmurrie: Yeah.
Det FC/Con Fanfield: Okay? All right.
Mr Munmurrie: Understand, yeah.
Det FC/Con Fanfield: Okay. And what’s your understanding of it, mate? So don’t think about what might happen in the future, think about now. Because I think you’re fit – focusing on the wrong thing at the moment, rather than what we’re talking about. Uh-huh. So what we’re trying to understand is, you have the right to say no comment if you don’t – if you don’t wanna speak. You also have the right not to speak to us. All right?
Mr Munmurrie: Yeah.
Det FC/Con Fanfield: So if I ask you a question, do you need to answer it?
Mr Munmurrie: No.
Det FC/Con Fanfield: Okay. If Ian asks you a question, do you need to answer it?
Mr Munmurrie: No.
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BOWDEN DCJ
[2024] WADC 94 (PC) Page 11
Det FC/Con Fanfield: Okay. When you provide responses to our questions, if you do choose to do that, whe – where is it being recorded?
Mr Munmurrie: The microphone here.
Det FC/Con Fanfield: Yep.
Det S/Con Stilton: Uh-huh.
Det FC/Con Fanfield: Okay. And where may the recording be played?
Mr Munmurrie: The court
Det FC/Con Fanfield: Yes.
Det S/Con Stilton: Yep.
Det FC/Con Fanfield: Okay.
Det S/Con Stilton: That’s if – if you get charged, which you’re not being charged at the moment [indistinct]
Det FC/Con Fanfield: Okay. It [indistinct] happier that he understands that. I just want to address for the purpose of the video, he has been, um, in custody for a bit of time, um, and he’s just had a feed recently. He’s – he is answering our questions quite well. He has been provided legal advice. Are we happy to continue?
Det S/Con Stilton: At this stage, yep.
Det FC/Con Fanfield: I am happy to continue as well. All right.
(The fifth portion)
Det FC/Con Fanfield: So, um, as I said, I’m investigating a sexual penetration without consent offence that occurred yesterday at about 10.00 pm on, uh, at 241 Stirling Street in Perth.
Mr Munmurrie: Yep.
Det FC/Con Fanfield: Okay? Tell me about your involvement in that offence.
Mr Munmurrie: Involvement with it? Fucking nothing involve.
Det FC/Con Fanfield: Okay?
(The final portion)
[2024] WADC 94
BOWDEN DCJ
[2024] WADC 94 (PC) Page 12
The defence’s submissions in respect of the contents of the EROI
21
The defence say that the EROI was unfair because Mr Munmurrie:
(i) lacked a comprehensive understanding of both limbs of the caution;
(ii) was not afforded an interview friend in accordance with Anunga r 2 (R v Anunga (1976) 11 ALR 412); and
(iii) was not provided an opportunity to indicate whether he wanted to exercise his right of silence.
22
It is not contended by the defence that the interviewing officers failed to appreciate the seriousness of the caution but the defence say that factors out of the officers’ control meant that Mr Munmurrie did not appreciate in a comprehensive way both limbs of the caution.
23
The defence point out that Mr Munmurrie was a 51-year-old Aboriginal who could not read English and had difficulty focussing on what he was being told and was under the impression he was being charged for the offence (as opposed to having been arrested on suspicion) and was preoccupied with getting bail as evidenced by his statements ‘charge me and put me in custody’ and his reference to ‘bail’.
24
The defence say it is clear from his answers in the first portion of the EROI that he did not understand the caution as he stated ‘I don’t know’ (EROI, page 6), and ‘Yeah’, and ‘I don’t know’ when asked if he had to answer questions.
25
Even when further efforts were made to explain the caution Mr Munmurrie replied showing a preoccupation with being charged as evidenced by his question ‘So I come here and get charged’ and clearly did not understand the caution as he replied ‘Yeah’ to the question ‘can I force you to answer questions’ in the second portion of the EROI.
26
In the third portion of the EROI a further attempt to explain the caution is made and Mr Munmurrie responds ‘Yeah. Oh I don’t know. Yes, no. Um’ and ‘None or like all of them’ when asked if he has to answer questions. The defence say this reveals that Mr Munmurrie does not have a comprehensive understanding of the caution.
[2024] WADC 94
BOWDEN DCJ
[2024] WADC 94 (PC) Page 13
27
The defence accept that in the fifth portion of the EROI Mr Munmurrie makes answers that at first glance indicate that he understood the first limb of the caution and that the second limb of the caution made sense to him.
28
During the fourth portion of the EROI the two interviewing officers are not happy that he fully understands the caution. A further effort is then made to explain the caution (EROI, page 9) during the fifth portion which includes:
Det FC/Con Fanfield: So if I ask you a question, do you need to answer it?
Mr Munmurrie: No.
Det FC/Con Fanfield: Okay. If Ian asks you a question, do you need to answer it?
Mr Munmurrie: No.
Det FC/Con Fanfield: Okay. When you provide responses to our questions, if you do choose to do that, whe – where is it being recorded?
Mr Munmurrie: The microphone here.
…
Det FC/Con Fanfield: Okay. And where may the recording be played?
Mr Munmurrie: [indistinct] the court
…
Det S/Con Stilton: That’s if – if you get charged, which you’re not being charged at the moment [indistinct]
29
Mr Munmurrie answers two questions with respect to the first limb of the caution and two questions with respect to the second limb of the caution which the defence say may indicate that he understood both limbs. However, the defence argue that given the protracted exchanges that occurred before those answers were given, there are a number of factors which point to Mr Munmurrie still not having an adequate understanding of both limbs of the caution.
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BOWDEN DCJ
[2024] WADC 94 (PC) Page 14
30
In particular the defence rely on the answers to the questions with respect to the first limb of the caution being only one word that is, no, and point out that according to the West Australian police interview guides, interviewing officers should not accept yes or no answers. In addition, the defence say that Mr Munmurrie’s answer to the question ‘if I ask you 10 questions how many of those 10 questions do you have to answer?’ was not adequately explored and Mr Munmurrie was not asked to explain the first limb of the caution in his own words.
31
In respect of the second limb the defence say that the answers only demonstrate an understanding that it was being audio recorded and not that it was being visually recorded and Mr Munmurrie’s answers do not demonstrate that he understood the recording could be used in evidence against him, or that he understood the concept of evidence or understood what the role of the court was.
The State’s submissions on the content of the EROI
32
The State, properly, accept that at the commencement of the EROI, Mr Munmurrie did not understand his right to silence.
33
However, the State say that when the caution was explained again to him the answers he gave show he understood both limbs of the caution:
Det FC/Con Fanfield: So if I ask you a question, do you need to answer it?
Mr Munmurrie: No.
Det FC/Con Fanfield: Okay. If Ian asks you a question, do you need to answer it?
Mr Munmurrie: No.
Det FC/Con Fanfield: Okay. When you provide responses to our questions, if you do choose to do that, whe – where is it being recorded?
Mr Munmurrie: The microphone here.
…
Det FC/Con Fanfield: Okay. And where may the recording be played?
Mr Munmurrie: [indistinct] the court
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BOWDEN DCJ
[2024] WADC 94 (PC) Page 15
34
The State also draw my attention to the last portion of the interview which included the following:
Det FC/Con Fanfield: All right. Um, cool. So what I’ll do now is I’ll [summarise] – I’ll just, uh, conclude the interview, so that means we’ll finish the interview for today. All right? So, um, have you answered all questions that I’ve asked you today of your own free will?
Mr Munmurrie: [indistinct] uh, well, I’m gonna be questioned more about the same thing over – – -.
Det FC/Con Fanfield: No.
Mr Munmurrie: – – – and over.
Det FC/Con Fanfield: No, no, no – – -.
Mr Munmurrie: [indistinct] Yes.
Det FC/Con Fanfield: – – – we’re finishing the interview.
Det S/Con Stilton: This is it, this is the end.
Det FC/Con Fanfield: I’m finishing the interview. I’ve just got to read through my form so I can finish it.
Det S/Con Stilton: Unless you want to talk to us more.
Det FC/Con Fanfield: Yeah. All right. So have you answered everything that I’ve asked you today of your own free will?
Mr Munmurrie: Hmm, I don’t know, yeah.
Det FC/Con Fanfield: Cool. Have you been threatened at all to participate in this interview?
Mr Munmurrie: Yeah.
Det FC/Con Fanfield: Well, did I threaten you at all?
Mr Munmurrie: Yeah.
Det FC/Con Fanfield: No, no. Seriously.
Mr Munmurrie: Nah, I just – – -.
Det FC/Con Fanfield: Nuh. All right. Have you been – – -.
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BOWDEN DCJ
[2024] WADC 94 (PC) Page 16
Mr Munmurrie: I’m being serious too. What – what’s going on now from here?
Det S/Con Stilton: We’ll – we’ll tell – we’ll tell you at the end.
35
In my view the final portion of the interview does not provide any support for the State’s submissions. Mr Munmurrie says that he did not know if he had answered everything of his own free will and then says he had. He also says he has been threatened but appears to say so in a jocular fashion with a half laugh.
The defence’s submissions on Anunga
36
The defence rely on Anunga r 2 which provides:
When an Aboriginal is being interrogated it is desirable where practicable that a ‘prisoner’s friend’ … be present. The ‘prisoner’s friend’ should be someone in whom the Aboriginal has apparent confidence … The important thing is that the ‘prisoner’s friend’ be someone in whom the Aboriginal has confidence, by whom he will feel supported.
37
Whilst acknowledging that the Anunga rules do not have the force of law in Western Australia, the defence pointed out that the rules are included in the COPs manual and in the interview plan used by the officers on the day in question which guide had no less than four references to an interview friend and the section relating to the interview friend was left blank. The defence say that the failure to afford an interview friend occurred in circumstances where the officers were aware of the Anunga obligations (or at the very least, should have been) and that the accused was an Aboriginal man who was in custody.
38
In The State of Western Australia v Gibson [2014] WASCA 240, Justice Hall stated:
Whilst the COPs Manual does not have the force of law it does indicate accepted police practice and a failure to follow the manual may be relevant to issues of voluntariness and fairness.
The State’s submissions on Anunga
39
The State accepts that the Anunga rules do not have the force of law but accepts that they give a good indication as to what is fair and relevant in the assessment of an EROI and in the exercise of the unfairness discretion.
40
The State say there is no evidence that Mr Munmurrie wanted an interview friend and when he was afforded the opportunity to exercise his right to communicate his whereabouts to a friend or relative,
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BOWDEN DCJ
[2024] WADC 94 (PC) Page 17
he
declined it. They say that the whole context of the interview is that Mr Munmurrie was impatient and gave the impression that he wanted to get the interview over and done with.
Findings R v Anunga
41
As both parties recognise EYO v The State of Western Australia [2019] WASCA 129 (EYO) establishes that the Anunga rules do not have the force of law in Western Australia, but they do give a good indication as to what is fair and are relevant to both the assessment of the voluntariness of the EROI and the exercise of the unfairness discretion.
42
Insofar as is relevant the guidelines refer to providing access to legal assistance and an interpreter, and a prisoner’s friend. The guidelines stress that great care should be taken administering the caution and indigenous persons should be asked to say what is meant by the caution, phrase by phrase, rather than just asked ‘do you understand that?’. Questions should be formulated that do not suggest the answer.
43
The guidelines also refer to proceeding with the EROI only when it is clear that the accused has understood the right to remain silent and is not disabled by illness, drunkenness or tiredness.
44
In respect of the failure by the interviewing officers to ensure that there was an Anunga friend present, I have not found any unfairness to Mr Munmurrie or any basis to exercise the public policy considerations on this ground alone. The evidence would tend to establish that Mr Munmurrie was anxious for the interview to be complete and would not have availed himself of the interview friend and for those reasons I would not exercise my discretion to exclude the interview under either public policy or fairness grounds.
The defence submissions on the failure to provide Mr Munmurrie with an opportunity to indicate whether he wanted to exercise his right to silence
45
The defence say that once the officers were satisfied that Mr Munmurrie understood the caution, they should have asked him whether he wanted to exercise his right of silence and not participate in the interview. By not doing so the officers deprived him of the opportunity to tell the police that he wished to exercise his right of
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BOWDEN DCJ
[2024] WADC 94 (PC) Page 18
silence and the interview proceeded on the assumption that he was not
going to exercise his right of silence.
46
The defence accept that there is no legal requirement for the interviewing officers to ask such a question but submit that in the context that the accused was an Aboriginal man in custody, who had not been afforded the opportunity of an interview friend and had shown some difficulty in comprehending both limbs of the caution, the omission of the opportunity to express whether he wanted to exercise his right of silence is relevant to exercise the unfairness discretion.
The State’s submissions on the failure to provide Mr Munmurrie with an opportunity to indicate whether he wanted to exercise his right to silence
47
The State say that the police had complied with their legal requirements. They had issued the caution. They believed Mr Munmurrie understood the caution and he told the police that he understood the interview was being recorded by microphones and could be played in court and whilst there is no expressed recognition that he understood the interview was being visually recorded, that is of little significance.
Conclusion on the failure to provide Mr Munmurrie with an opportunity to indicate whether he wanted to exercise his right to silence
48
Although it is not necessary for me to deal with this question in light of my other findings there is no requirement for the officers to put a question, then ask the interviewee whether he wishes to exercise his right of silence in respect of each individual question or generally.
49
I find that no unfairness is occasioned to the accused because if a police officer properly administers a caution and ensures that the accused understands that caution then the accused can exercise that right to silence, should he wish, in respect of each, all or none of the questions that are asked of him. Having issued the caution and ensured that the accused understands it the officer is legally entitled to ask questions of the accused without then having to provide an opportunity or enquire whether the accused intends to exercise his right of silence to each question or questions in general. No public policy considerations would require the exclusion of the EROI in those circumstances.
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BOWDEN DCJ
[2024] WADC 94 (PC) Page 19
The law
The contents of the caution
50
In EYO [69] the court stated:
The caution that a police officer is obliged to give to an arrested suspect has two limbs. The first limb is that the suspect has the right not to answer any questions put to him or her by police. The second limb is that, if the suspect answers any question, the answer may be given in evidence. The importance of the second limb of the caution is to ensure that the suspect understands the effect or consequence of answering any question put by police. Comprehension of the second limb of the caution is as important as comprehension of the first limb.
Voluntariness and the discretion
51
The principles relating to the voluntariness of an EROI and its exclusion on the grounds of fairness or because its prejudicial value outweighs its probative value or as a result of public policy considerations were considered by the Court of Appeal in Kelly v The State of Western Australia [2017] WASCA 221 [34] – [48] and Luo v The Queen [2020] WASCA 184 (Luo).
52
To be admissible as evidence a confessional statement must be made voluntarily. It is presumed that a confessional statement is voluntary if there is nothing to suggest that it is involuntary. If the issue of voluntariness is raised, the State must prove voluntariness on the balance of probabilities. If a confessional statement is not voluntary, it is not admissible in the State’s case. Subject to the Criminal Investigation Act, if a confessional statement is voluntary, it is prima facie admissible.
53
Even if a confessional statement is made voluntarily, it may be excluded in the exercise of the court’s residual discretion if:
(i) It would be unfair to the accused to admit evidence of the statement.
(ii) It is against public policy to admit evidence of the statement.
(iii) The prejudicial effect of the evidence is greater than its probative value.
[2024] WADC 94
BOWDEN DCJ
[2024] WADC 94 (PC) Page 20
54
The onus of proving facts which justify the exercise of the residual discretion in favour of excluding a voluntarily made confessional statement rests with Mr Munmurrie on the balance of probabilities.
55
It is not always possible to treat voluntariness, reliability, unfairness to the accused and public policy considerations as discrete issues as there is often overlap between the different concepts: R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 (Swaffield).
Was the EROI voluntary?
56
The defence do not challenge the voluntariness of the EROI because Swaffield, Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396, Luo and George v The State of Western Australia [2020] WASCA 139 establish that in Australian law, an accused person does not need to have understood that he or she has a choice as to whether or not to speak before a statement is taken to be voluntary. A failure by police to give a caution at all or a failure by an accused to understand the caution will be relevant to the exercise of the residual discretion to exclude the EROI on the unfairness or public policy discretions but not to the question of voluntariness.
57
The authorities referred to establish that statements made during an interview are voluntarily made unless they were obtained by an inducement or duress, intimidation, persistent importunity, or sustained or undue pressure, and these factors are not raised in this application.
The common law unfairness discretion
58
The purpose of the common law discretion to exclude evidence for unfairness is to protect the rights and privileges of the accused person. The discretion is concerned with the rights of Mr Munmurrie, not whether the police officers acted fairly or unfairly.
59
In the exercise of the unfairness discretion, the reliability of the confession is a relevant but not a determinative consideration. A reliable confession may nevertheless be excluded due to other factors. Where an interview is both reliable and voluntary, an accused bears a high onus to establish that the unfairness discretion should be invoked.
60
The issue is whether it would be unfair to Mr Munmurrie to use his admissions against him. The discretion is primarily concerned with the ability to obtain a fair trial although there is some overlap with the exercise of the public policy of discretion: R v Lee (1950) 82 CLR 133; Swaffield.
[2024] WADC 94
BOWDEN DCJ
[2024] WADC 94 (PC) Page 21
61
There is no doubt that the officers were conscious that there were issues as far as Mr Munmurrie’s understanding of the caution is concerned. The officers were patient and courteous, however, it is clear that there were issues insofar as Mr Munmurrie’s understanding of the caution is concerned as is evidenced by the first, second, third and fourth portions of the EROI. The officers acknowledged as much.
62
The interview guidelines, issued by the police department, whilst not having the force of law are matters that are relevant to the exercise of my discretion. Those guidelines clearly state that it is not adequate to administer the caution and then say, ‘do you understand that?’ or ‘do you understand you don’t have to answer questions?’. The guidelines also state that officers should ask an Aboriginal interviewee to tell them what is meant by the caution, phrase by phrase, and should not proceed with the interrogation until it is clear that the Aboriginal interviewee has an apparent understanding of his right to remain silent.
63
I accept that the officers genuinely believed that Mr Munmurrie had an apparent understanding of his right to remain silent, however they should have asked Mr Munmurrie in his own words to explain to them literally phrase by phrase the meaning of the caution. The guidelines state that a simple yes or no answer does not demonstrate understanding. Whilst the officers broke down the caution to manageable sections, the surrounding circumstances were such that they ought to have been and were aware that there were issues with Mr Munmurrie’s understanding and they should have asked him to explain in his own words what he understood the caution to mean.
64
Whilst I accept that the police officers thought that they complied with the guidelines, I consider the failures that I have referred to have resulted in them not complying with the guidelines and that created unfairness to Mr Munmurrie.
65
I reject the State’s submission that Mr Munmurrie must establish on the balance of probabilities that he did not understand the caution. Mr Munmurrie must satisfy me on the balance of probabilities that it would be unfair to use the EROI in evidence against him and in circumstances where I find there is sufficient doubt about whether he understood the first limb of the caution, Mr Munmurrie has discharged that onus on him.
[2024] WADC 94
BOWDEN DCJ
[2024] WADC 94 (PC) Page 22
66
I am satisfied on the balance of probabilities that there was sufficient doubt about Mr Munmurrie’s understanding of the caution such that it was incumbent on the officers to follow the guidelines and have Mr Munmurrie repeat in his own words what he understood the caution to mean (and in particular the first limb).
67
Whilst I accept the officers correctly identified that the explaining of the caution was the ‘most important part of the interview’, the failure to take that additional step in the circumstances in which this interview occurred means that I am satisfied on the balance of probabilities that a doubt exists as to whether he understood the caution.
68
To rely on his one word answers as signifying he understood the caution is fraught with difficulty. Experience has shown that in many cases continually putting a proposition to a person during an interview will eventually provide the answer that the interviewers desire.
69
In the exercise of this discretion matters such as the seriousness of the offence, the probative value of the evidence, the officers’ conduct and nature of the act said to create the unfairness are generally considered Mukevski v The State of Western Australia [2010] WASCA 138.
70
Mr Munmurrie objects to the EROI being used against him.
71
The offence is undoubtedly serious carrying a maximum penalty of 14 years’ imprisonment.
72
The probative value of the evidence relies in the identification of Mr Munmurrie as a person who was with the complainant on the night in question. During the EROI, Mr Munmurrie makes no admissions as to sexual penetration and categorically denies that he had sex with the complainant in any shape or form whatsoever. He does however admit that he had known the complainant for at least several years and sees her in Perth all the time and met her in town on the relevant day and that she accompanied him back to the squat and slept there that night. He tells the police the names of others who were present and that she had supplied him with dope and the next morning was trying to get speed. He also says at the time he was coming down from ‘Meth’. The EROI has significance in identifying Mr Munmurrie as being with the complainant on that night and it has moderately high probative value. However, the complainant’s statement indicates she has known him for in excess of 10 years so that if the EROI is ruled inadmissible, the State will still have the recognition evidence of the complainant.
[2024] WADC 94
BOWDEN DCJ
[2024] WADC 94 (PC) Page 23
73
Failure of the officers to ask Mr Munmurrie to explain in his own words what the caution meant was inadvertent, as I have accepted that the officers genuinely believed that he understood the caution it therefore arose from an honest mistake of fact, however in circumstances where they had interview guidelines instructing them to follow the course of action which I have referred to. That literally would only have taken a matter of minutes, it could have easily been followed. I find that it was not therefore a reasonable mistake.
74
In relation to the reliability of the answers Mr Munmurrie was not called to give evidence at the directions hearing and I can only therefore approach this issue on the basis that the answers he made are in fact reliable. However, even at common law the probative value of the evidence does not by itself justify its admission.
75
I find that there was sufficient doubt around Mr Munmurrie’s understanding of the caution such that notwithstanding his one word replies indicating that he understood the caution, the failure of the officers to ask Mr Munmurrie in his own words to explain what the caution meant creates unfairness for the interview to be used against him, notwithstanding the reliability of the answers, seriousness of the offence and the moderately high probative value of the EROI.
The common law public policy discretion
76
The public policy discretion is concerned with matters of public interest and involves consideration of public policy that can lead a court to conclude that it is unacceptable to admit the evidence.
77
The public policy discretion focuses, not on unfairness to the accused, but on considerations of public policy which make it unacceptable to admit the statement into evidence, notwithstanding that the statement was made voluntarily and that its admission would not create unfairness to the accused. The purpose of this discretion is the protection of the public interest: Swaffield.
78
The discretion involves striking a balance between the public interest in placing the court in possession of all relevant evidence and the desirable goal of bringing convictions to wrongdoers with the competing consideration of not encouraging evidence to be obtained by inappropriate means and the public interest in protecting the individuals from unfair treatment: R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54.
[2024] WADC 94
BOWDEN DCJ
[2024] WADC 94 (PC) Page 24
79
The public policy discretion is necessary to protect the process of the court in administering justice and serves a policy in deterring inappropriate conduct by investigators.
80
Fairness is relevant to the discretion but is not the sole focus. The considerations of the public policy are to be applied in the circumstances of the case including weighing factors, including but not limited to the cogency of the evidence, the importance of the evidence in the proceedings, the nature and seriousness of the offence, the nature of the infringing conduct, how easy it would be to comply with the law, whether such conduct is encouraged or tolerated by those in higher authority: R v Pohl [2014] QSC 173; (2014) 244 A Crim R 56; R v Versac [2013] QSC 46; (2013) 227 A Crim R 569.
81
I find that the public policy discretion means that notwithstanding the importance of the evidence, the reliability of the answers and the nature and seriousness of the alleged offence, the discretion should be exercised by excluding the EROI. I repeat my findings at [75] notwithstanding that I accept the officers genuinely believed Mr Munmurrie understood the caution.
82
It would have been easy for the officers to comply with the guidelines. It does not take that long and it should be standard practice. The officers should have asked Mr Munmurrie to explain in his own words what he understood by the caution, they had written guidelines telling them what to do and a simple yes or no answer does not demonstrate he understood the caution. The guidelines show that the officers’ failure to do so is not encouraged or tolerated by those in higher authority.
83
The caution is a fundamental and statutory right of the accused. The understanding of the accused of the caution is of primary importance. The police and the courts must be vigilant in protecting these rights.
84
The failure of the courts to protect these rights may encourage police officers to be less vigilant in ensuring that those rights are afforded to the accused and that he understands the true meaning of those rights.
85
The court should not encourage evidence to be obtained by inappropriate means and there is a public interest in protecting individuals from unfair treatment particularly in circumstances where
[2024] WADC 94
BOWDEN DCJ
[2024] WADC 94 (PC) Page 25
the guidelines clearly lay out the proper procedure to be followed.
The need to ensure that accused persons understand the effect of a caution is a matter of public interest.
86
On this occasion I find that those considerations outweigh the public interest in placing before the court all relevant evidence.
87
In those circumstances public policy considerations are such that the EROI should be excluded not only on the unfairness discretion but also on public policy considerations.
The common law probative value/prejudicial effect discretion
88
It is not suggested that the probative value of Mr Munmurrie’s EROI is outweighed by the prejudicial effect of that evidence.
89
The relevant prejudice is not prejudicial simply because it tends to prove the guilt of the accused. Prejudice arises from the risk of improper use of the evidence. Evidence will be prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task. Evidence is excluded where and because its capacity to lead a jury to reason correctly to a verdict of guilt is outweighed by its capacity to lead the jury to reason incorrectly to a conclusion of guilt: Police v Dunstall [2015] HCA 26; (2015) 256 CLR 403 [62]; Le-Ta v The State of Western Australia [2020] WASCA 14.
90
As it is not suggested that the probative value of Mr Munmurrie’s EROI is outweighed by the prejudicial effect of that evidence the court’s common law discretion to exclude on that basis need not be considered.
Orders
91
The EROI conducted on 15 February 2023 is inadmissible as Mr Munmurrie has satisfied me on the balance of probabilities that it would be both unfair and against public policy to admit it at his forthcoming trial.
[2024] WADC 94
BOWDEN DCJ
[2024] WADC 94 (PC) Page 26
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
IB
Associate to Judge Bowden
5 NOVEMBER 2024