[2024] WASC 517
Page 1
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION : THE STATE OF WESTERN AUSTRALIA -v- SMART [2024] WASC 517
CORAM : FIANNACA J
HEARD : 10 JULY 2024
DELIVERED : 5 AUGUST 2024
PUBLISHED : 24 APRIL 2025
FILE NO/S : INS 45 of 2023
BETWEEN : THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
SAMUEL DUDLEY SMART
Accused
Catchwords:
Criminal application â Application to exclude police electronic records of interview â Accused with intellectual disability â Voluntariness â Section 138(2)(d) of the Criminal Investigation Act 2006 (WA) â Unfairness discretion â Turns on own facts
Legislation:
Criminal Code (WA)
Criminal Investigation Act 2006 (WA)
Criminal Procedure Act 2004 (WA)
[2024] WASC 517
Page 2
Result:
Electronic records of interview admissible
Representation:
Counsel:
Prosecution
:
Ms T Tan
Accused
:
Mr C Porter & Ms K Turtley-Chappel
Solicitors:
Prosecution
:
Director of Public Prosecutions (WA)
Accused
:
James Jackson Criminal Defence
[2024] WASC 517
Page 3
Cases referred to in decision:
Brott v The State of Western Australia [2016] WASC 300
Butler (No 1) (1991) 57 A Crim R 451
Collins v The Queen [1980] FCA 82; (1980) 31 ALR 257
Duke v The Queen [1989] HCA 1; (1989) 180 CLR 508
Ibrahim v The King [1914] AC 599
Mackenzie v The Queen [2004] WASCA 146; (2004) 150 A Crim R 451
Njana (1998) 99 A Crim R 273
Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Anunga (1976) 11 ALR 412
R v Lee [1950] HCA 25; (1950) 82 CLR 133
R v Swaffield [1998] HCA 1; (1998) 192 CLR 159
R v Williams (1992) 8 WAR 265
Siddon v The State of Western Australia [2008] WASC 100
The State of Western Australia v Cox [2008] WASC 287
The State of Western Australia v Gandy [No 2] [2015] WASC 386
The State of Western Australia v Gibson [2014] WASC 240
The State of Western Australia v Smith [2010] WASC 279
The State of Western Australia v Williams [2022] WASCA 105
Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664
Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396
Van der Meer v The Queen [1988] HCA 56; (1988) 35 A Crim R 232
Webb (1994) 74 A Crim R 436
Wendo v The Queen [1963] HCA 19; (1963) 109 CLR 559
Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1
[2024] WASC 517
FIANNACA J
Page 4
FIANNACA J:
Introduction
1
This is my decision on an application by the accused, Samuel Dudley Smart, for a ruling that certain evidence on which the State intends to rely in his trial on Supreme Court indictment 45 of 2023 (the indictment), which is listed to commence in this court on 12 August 2024, is inadmissible. The decision will be suppressed until the proceedings on the indictment have concluded.
2
The accused has been charged that, on 14 January 2023, at Yokine, he murdered Peter Protoulis (the deceased), contrary to s 279 of the Criminal Code (WA). The deceased was killed at his home, a unit in Alexander Drive in Yokine (the Unit), where he was living with the accused and one of the accusedâs sisters. He was stabbed to the neck and died from the blood loss resulting from the single penetrating wound.
3
I will outline below the circumstances that led to the accused being suspected of killing the deceased. He was arrested and charged with the offence of murder on 15 January 2023, about 24 hours after the incident.
4
In the course of the investigation of the alleged offence, the accused was interviewed by police on 16 January 2023 (the first interview) and 17 January 2023 (the second interview). An electronic audio-visual recording was made of each interview. Each will be referred to henceforth as a âvideo record of interviewâ. During the course of each interview, the accused denied that he had any involvement in the death of the deceased. However, he gave an account regarding his movements on the day of the offence, and the days before and after the offence, being Friday, 13 January 2023 and Sunday, 15 January 2023. The State contends that the accusedâs accounts contain admissions against interest. While there are some admissions about surrounding circumstances that are relevant to the Stateâs case against the accused, the Stateâs primary contention is that the accused lied about his movements and whereabouts at critical times, and that such lies will be relied upon by the State as evidence of guilt, in that it will be open to the jury to find that the lies evince a realisation by the accused that the truth would implicate him in the commission of the offence. The State intends to rely on the evidence as part of a circumstantial case, as there is no eyewitness to the stabbing of the deceased.
[2024] WASC 517
FIANNACA J
Page 5
5
On 14 March 2024, the accused made an application pursuant to s 98 of the Criminal Procedure Act 2004 (WA) for a pre-trial ruling that both video records of interview âbe deemed inadmissible at [the accusedâs] trialâ. It is, in essence, an objection to the use of the evidence at trial. As argued, the application was for a ruling that:
(a) the interviews are not admissible because the court cannot be satisfied on the balance of probabilities that any admissions made by the accused were voluntarily made;
(b) in the alternative, the interviews be excluded on the basis that they were conducted in breach of the requirements of s 138(3)(3) of the Criminal Investigation Act 2006 (WA) in respect of the accusedâs rights under s 138(2)(d) of that Act, and the contents are therefore inadmissible pursuant to s 154 of that Act; and
(c) further in the alternative, the interviews be excluded in the exercise of the courtâs discretion on the basis that the admission of the evidence would be unfair to the accused; in other words, it would result in an unfair trial.
6
Section 138(2)(d) of the Criminal Investigation Act provides that an arrested suspect is entitled not to be interviewed until the services of âan interpreter or other qualified personâ are available âif he or she is for any reason unable to understand or communicate in spoken English sufficientlyâ. Section 138(3)(b) provides that an officer in charge of an investigation must, as soon as practicable after the arrest of the arrested suspect, afford the suspect his rights under subsection (2). The accusedâs submission in respect of this basis of the objection is that, because of his intellectual disability, he was not able to understand or communicate in spoken English sufficiently (notwithstanding the fact that English is his only language), and that, for the purpose of each interview, he was entitled to have the services of a person who is qualified to assist someone with his disability to sufficiently understand and communicate in English. The police did not afford him such services.
7
In written submissions prior to the hearing, the accusedâs counsel had also relied on a submission that the police had breached s 138(3) in respect of the accusedâs right under s 138(2)(c) of the Criminal Investigation Act, by failing to inform the accused of, and afford him, the right to a reasonable opportunity to communicate or to attempt to
[2024] WASC 517
FIANNACA J
Page 6
communicate with a legal practitioner prior to the second interview
. At the hearing, after submissions had been made by both parties in respect of that matter, counsel for the accused abandoned that objection, accepting that the accusedâs right and the corresponding obligations on the police arose at the time of the accusedâs arrest, and that the Act does not impose those obligations on every occasion an arrested suspect is interviewed, if he is interviewed more than once. The police had complied with the obligations under s 138(3), in respect of the right under s 138(2)(c), as soon as practicable after the accusedâs arrest.
8
The accusedâs submissions in respect of both the issue of voluntariness and the application for discretionary exclusion of the video records of interview on the basis of unfairness relied in part on an alleged failure by the police to comply with the guidelines set out in R v Anunga (1976) 11 ALR 412 (Anunga) in respect of interviews with Aboriginal (that is, Indigenous Australian) suspects (the Anunga guidelines). In particular, it was submitted that the accused should have been given the opportunity to have an âinterview friendâ present during the interview.
9
The application was heard at a pre-trial hearing on 10 July 2024. Both of the video records of interview were tendered (exhibit D â the first interview; exhibit E â the second interview), together with the transcripts of the interviews, which commence at pages 793 and 822 of the prosecution brief respectively. The accusedâs objection to the evidence relied in part on the fact that he has an intellectual disability. It was submitted the disability had a bearing upon the voluntariness of his participation in the video records of interview and informs the question of whether the admission of the interviews would result in an unfair trial. The disability, and the way it allegedly manifested during the interviews, was also relied on by the accused as the basis for submitting that the police had breached the requirements of s 138(2)(d) of the Criminal Investigation Act. Counsel for the accused tendered three expert reports that are relied upon to establish that the accused has an intellectual disability and the extent of that disability. Those reports were:
(1) a report of Dr Brittany Wolff, General Psychologist and Clinical Neuropsychologist Registrar, dated 10 June 2024 (exhibit A);
(2) a report of Dr Rajan Darjee, Consultant Forensic Psychiatrist, dated 19 September 2023, which addresses the question of the accusedâs fitness to stand trial (exhibit B); and
[2024] WASC 517
FIANNACA J
Page 7
(3) a redacted copy of a report of Dr Cindy Cabeleira, Clinical Neuropsychologist, dated 27 April 2021 (exhibit C).
10
The report of Dr Wolff was received into evidence subject to the need to resolve a number of objections that were raised by the State to various parts of the report on the basis that they included speculation or the expression of conclusions on what might be regarded as âultimate issuesâ in the context of the application.1 Prior to the tender of the report, I also raised a question about whether the report adequately provided a basis for concluding that Dr Wolff had specific expertise to be able to express opinions about the cognitive functioning of a person with an intellectual disability in a police interview. That issue was also to be resolved after hearing submissions, without evidence from Dr Wolff about any specific experience in that area.2
11
Although the contents of the prosecution brief were not tendered, they are part of the materials before the court that provide context for the video records of interview and the Stateâs submissions about the way in which it intends to rely on the accusedâs statements as part of its circumstantial case.
12
Neither the State nor the accused adduced any oral evidence at the pre-trial hearing.
13
Both parties filed detailed written submissions, which were elaborated upon in oral submissions.
14
At the conclusion of the hearing, having heard the submissions, I reserved my decision.
15
For the reasons that follow, I have come to the conclusion that the contents of both video records of interview are admissible and should not be excluded in the exercise of the courtâs discretion. On 5 August 2024, I gave my decision to that effect and provided brief reasons consistent with my conclusions below, so that the parties could proceed to a pre-trial conference on the basis of the evidence that would be admissible at trial. I said I would publish written reasons as soon as possible. Regrettably, I was not able to publish them before the trial of the accused. It is nevertheless appropriate that they be published so that the record reflects the basis on which the video records of interview were held to be admissible at trial.
1 ts 75, 84 â 86.
2 ts 83.
[2024] WASC 517
FIANNACA J
Page 8
The alleged facts of the offence
16
The issues to be determined require consideration of the Stateâs case as currently disclosed in the prosecution brief. That is particularly so, given that the State intends to rely on statements made by the accused in the video records of interview as part of a circumstantial case, as explained above.
Sources of alleged facts
17
The alleged facts are set out in the Amended Statement of Material Facts dated 14 December 2023 (Amended SMF) in Volume 1 of the prosecution brief. The Amended SMF provides references to various materials as the sources of facts stated, including CCTV footage. However, the CCTV footage was not tendered in the proceedings. There are some still images from CCTV footage in the prosecution brief, but in most instances the quality of the images is not adequate to enable an assessment of the accuracy of the facts stated. Nevertheless, I have proceeded on the basis that the CCTV footage referred to by the State will be tendered at trial and, accordingly, have included the CCTV sources referred to in the Amended SMF.
18
Where I refer to witnesses saying certain things, I am referring to the contents of their statements in the prosecution brief.
Background
19
The accused and the deceased were related as a result of two of the accusedâs siblings being in a de facto relationship with two of the deceasedâs siblings: the accusedâs sister, Stephanie Binder, was in a relationship with the deceasedâs brother, Nicolaos Protoulis, and the accusedâs other sister, Summaiya Ali-Smart, was in a relationship with the deceasedâs other brother, Karalambos (âHarryâ) Protoulis.
Circumstances leading up to the incident
20
At the time of the alleged incident, the accused and the deceased were living together in the Unit in Yokine with another of the accusedâs sisters, Selene Smart. The deceased had previously resided at that address with the accused and Ms Smart in 2022. He had moved back in approximately one week before the incident.3
21
On the morning of 14 January 2023, the deceased left the Unit to visit his brother. He returned to the Unit shortly before 6.00 pm. The
3 Amended SMF, page 2 [3] â [4].
[2024] WASC 517
FIANNACA J
Page 9
accused also left the Unit during that time
. He was captured on CCTV footage speaking with other persons, including other occupants at the unit complex, and was also seen to be purchasing items at the Dianella shops in the early afternoon.4 In the late afternoon, he went to a house in Lynmouth Road, Dianella (the Lynmouth Road address), where some of his associates were residing. One of the occupants of those premises, Michael Brumby, has said that the accused was wearing a dark hooded jumper and had a backpack whilst at those premises. Another occupant, Razalie Mamid, has said that the accused was wearing a long-sleeved jumper and a hat. Both of them say they saw the accused with a large knife. A third occupant, Benyamine Ayob, has said he saw the knife in the accusedâs backpack. Whilst at the Lynmouth Road address, the accused came into possession of a red bicycle from Benyamine Ayob. However, the occupants all note that the accused left the house on a different bicycle, which was all black.
22
By approximately 6.00 pm that evening, the accused, the deceased, and Selene Smart were all back at the Unit.
23
At 6.18 pm, Selene Smart left the Unit and went to a nearby payphone to make some calls. When she left the Unit, the accused and the deceased were both in the living room. After making the calls at the payphone, Selene Smart went to a nearby bottle shop, where she purchased alcohol, which she drank in a park.5
24
At 6.58 pm, the accused left the Unit on a bicycle, wearing a black hooded jumper and carrying a black backpack,6 consistent with the clothing described by the occupants of the Lynmouth Road address as being worn by the accused earlier in the afternoon. The State alleges that the accused was subsequently captured on CCTV footage from the vicinity of the Unit in Yokine at a time proximate to when the deceased was killed. It alleges, by reference to the clothing worn by the person seen on the CCTV footage, that the long-sleeved green shirt the accused had been wearing earlier in the day was visible just below the bottom of the black hooded jumper that the person is wearing in the footage, and the accused was still in the same shorts and distinctive Nike sneakers he had been wearing earlier.
4 CCTV footage from BWS at Dianella Plaza, Dianella (summarised in Prosecution Brief (PB) 176 â 177).
5 CCTV footage from 139 Shakespeare Ave, Yokine (summarised at PB 181 â 182); payphone records (PB 902 â 903).
6 CCTV footage from 9/76 Alexander Dr, Yokine, 1/131 Shakespeare Ave, Yokine and 134A Shakespeare Ave, Yokine.
[2024] WASC 517
FIANNACA J
Page 10
25
The accused rode down the street and returned to the Unit at about 7.05 pm, leaving the bicycle outside the back of the Unit, leaning against a car. The accused walked through the Unit to the front carpark, where he spent the next 20 minutes pacing around. It is alleged that he appeared to be agitated. The accused had a large gold ring on his right index finger and appeared to have an object in his hand.7
26
Around that time, the accusedâs mother (Georgina Smart) drove past the address on Shakespeare Avenue and saw the accused, noting that he had a black baseball cap and was carrying a backpack.8 Neighbours were also subsequently able to identify the accused in CCTV footage, which showed the accused pacing around wearing the black hoodie and baseball cap.9
The incident
27
At 7.41 pm, having paced around the front carpark for a period of time, the accused produced a large silver bladed knife and held it in his right hand as he entered the Unit through the front door.10 Twenty-five seconds later, the accused left the Unit through the back door at speed, got onto the bicycle that he had left leaning against a car, and rode away from the scene immediately.11
28
The State alleges that, whilst inside the Unit, the accused stabbed the deceased once to the right side of his neck. The wound completely transected the deceasedâs right common carotid artery and right internal jugular vein, penetrated through the full thickness of the thyroid cartilage, and appeared to end within the musculature on the left side of the deceasedâs neck. The stab wound was nine centimetres in depth, with the approximate direction being from right to left and slightly downwards.12
29
The deceased was able to make his way outside through the back door of the Unit, but he lost consciousness due to significant blood loss, and ultimately died outside the Unit.
7 CCTV footage from 1/131 Shakespeare Ave, Yokine.
8 Statement of Georgina SMART at PB 21.
9 Statements of Aaron QUINLAN at PB 31 â 32 and Diana WATTERS at PB 35.
10 The State submits the accused is captured entering the unit at 7:41:43 pm on CCTV footage from 1/131 Shakespeare Ave, Yokine (PB 161).
11 The State submits the accused is captured leaving the unit at 7:42:08 pm on CCTV footage from 1/131 Shakespeare Ave, Yokine (PB 161).
12 Post-mortem Examination Report to the Coroner at PB 236.
[2024] WASC 517
FIANNACA J
Page 11
30
It is alleged that, after stabbing the deceased and leaving the scene, the accused returned to the Lynmouth Road address and exchanged the black bicycle he had been using for the red one that he had received from Mr Ayob earlier in the day. The accused left the property shortly afterwards.
Discovery of deceased
31
At around 10.15 pm, Selene Smart returned home to the Unit and found the deceased lying outside. She attempted to rouse him, however found that he was already cold and stiff. She noted that he had blood around his head. Ms Smart returned to the nearby payphone and called her mother (Georgina Smart), who called for an ambulance.
32
Police arrived at the Unit at 10.42 pm. St John Ambulance officers arrived at 10.50 pm.
33
The deceased was pronounced life extinct at 11.00 pm.
34
Forensic police officers attended the scene and found a significant amount of blood on and around the mattress on which the deceased had been sleeping, including blood marks on the walls and table next to the mattress, and a trail of blood with footprints in it, leading from the mattress to outside the Unit where the deceased was ultimately found.
Arrest of accused
35
On 15 January 2023, around 8.00 pm, about 24 hours after the incident, police arrested the accused outside a house in Larrawa Circle, Ellenbrook. That address is the home of the accusedâs sister, Sharee Smart. The accused was no longer wearing the black hooded jumper and black baseball cap, but was still in the long-sleeved green shirt, shorts, and distinctive Nike sneakers. The police did not locate a backpack or knife.
First interview
36
On 16 January 2023 at 6.37 pm, the accused participated in the first interview. I will return below to details of the interview that were referred to by the parties that are of particular relevance to the issues I need to determine. For present purposes, it is sufficient to summarise the accusedâs account as follows.
37
The accused denied being present at the Unit during the incident, being in any physical fight with the deceased or causing the deceased
[2024] WASC 517
FIANNACA J
Page 12
any injuries
. The accused told police that he had been at Yagan Square in Perth from about 3.00 pm or 4.00 pm the previous day (Friday, 13 January 2023) and was still in or around the city at the time of the incident, remaining there essentially until he was arrested in Ellenbrook. The accused admitted that he intended to go back to the Unit at some stage on the Saturday or Sunday, and that he returned to the vicinity of the Unit complex, but said that police were present, so he left.
38
Given the accusedâs account at that stage, police reviewed CCTV footage from Yagan Square and the Perth Transit Authority (relating to CCTV from buses) for the relevant period. The accused was not visible in any of the footage.13 However, he was identified on CCTV footage from Chemist Warehouse in North Perth taken on 13 January 2023,14 which indicated that he was not in Yagan Square or the city at that time.
Second interview
39
On 17 January 2023, at 5.25 pm, the accused took part in the second interview. Again, I will return below to details of the interview that were referred to by the parties that are of particular relevance to the issues I need to determine. For present purposes, it is sufficient to summarise the accusedâs account as follows.
40
The accused maintained that he had been in or around the city at the time of the incident. He initially also maintained that he had not been at the Unit complex at any time on the day of the incident. However, when he was shown CCTV stills and footage from the 14 January 2023, he admitted that he was at the Unit for about 10 to 20 minutes around 4.25 pm before returning to Yagan Square. He admitted that the person in the long-sleeved green shirt on the footage from earlier in the afternoon was him,15 but denied that the person entering the Unit in the black hooded jumper and baseball cap with the black backpack was him.
Further investigation
41
CCTV footage was obtained from Rebel Sport in Morley and BWS in Dianella from 10 and 12 January 2023 respectively, showing
13 Statement of Andrew MACLEAN (Police officer) at PB 459 [63]; Timeline of relevant Perth Transit Authority (PTA) CCTV footage at PB 198.
14 Summary of CCTV footage from Chemist Warehouse, North Perth at PB 210. The State relies on a receipt (PB 211) and the accusedâs bank records (PB 212) as confirmation of the fact that he was the person in the footage from Chemist Warehouse in North Perth.
15 CCTV footage from 4.25pm; stills shown to the accused during second interview at PB 885 â 900.
[2024] WASC 517
FIANNACA J
Page 13
the accused in what appears to be the same baseball cap worn in the
CCTV footage from the incident, and the same backpack.16
42
Further, a Facebook photo of the accused was located showing him wearing a large gold ring on his right index finger,17 which the State submits is consistent with the appearance of the ring the person is wearing on the same finger in the CCTV footage from the vicinity of the Unit in Yokine at a time proximate to when the deceased was killed. The photo was available and shown to the accused during the second interview, and was marked âKW15â. In addition, the accused had been arrested the day prior to the incident18 and was found to be wearing a large gold ring on his right index finger at that time.19 The State alleges that the ring the accused was wearing is the same as the ring in the Facebook photo, which is said to be consistent with what is seen on the finger of the person seen leaving the Unit at a time proximate to when the deceased was killed.
43
The Nike sneakers the accused was wearing at the time of his arrest were seized and examined for DNA. The Stateâs case is that they are distinctive. Two swabs taken from stains on the right sneaker tested positive presumptively for blood and returned a mixed DNA profile. Within the mixed profile was a DNA profile that matched the deceasedâs DNA profile, consistent with the deceased being a contributor to the mixed profile and, therefore, consistent with the deceasedâs blood being on the accusedâs sneakers. It is the Stateâs case that those sneakers matched the sneakers worn by the person of interest in the CCTV footage from the incident.
The interviews
44
Before considering the relevant legal principles and statutory provisions, and addressing the partiesâ submissions, it is appropriate to set out relevant aspects of the two interviews in further detail.
16 Summary of CCTV footage from Rebel Sport in Morley at PB 202, and BWS in Dianella at PB 176. The State submits that a receipt from Rebel Sports at PB 203 and the accusedâs bank records at PB 212 confirm that he is the person in the footage wearing the baseball cap.
17 Second interview, PB 879 â 881; Facebook photo marked âKW15â, PB 898.
18 For stealing from a Dan Murphyâs liquor store â see statements of Samuel MORREL at PB 137, Mitchell CAWLEY (Police officer) at PB 283 and CCTV stills from the Dan Murphyâs CCTV footage at PB 292 â 296.
19 Statement of Mitchell CAWLEY at PB 283; photos of ring taken by Mitchell CAWLEY.
[2024] WASC 517
FIANNACA J
Page 14
First interview â 16 January 2023
45
The first interview was conducted on 16 January 2023 by Detective Senior Constable Wade (Detective Wade), with Detective Senior Constable Stone (Detective Stone). It commenced at 6.37 pm, as confirmed by Detective Wade on camera (the time counter on the screen is about one minute out, showing 18:38). The interview proceeded for a total time of about 41 minutes, with a break for 9 minutes after about 35 minutes.
46
It is appropriate to note that the accused appeared to be tired from the start and yawned from time to time. However, he answered in the affirmative when he was asked if he had had a good sleep since the previous day.20 Immediately before that exchange, Detective Wade noted that the previous day the accused said he had used methamphetamine about four hours before he was arrested.21 When asked if he felt âunder the influence of that methamphetamine anymoreâ, the accused answered, âOh, nup.â The accused agreed that he had had food and drinks.22 He was told (and he acknowledged) that, if at any time he wanted âsomething to drink or anything else or a break or a restâ, he should let the officers know, and they would leave the room and recommence the interview when he was ready.23 As I have said, there was a break after about 35 minutes, after which the accused confirmed that he had been to the toilet and had had a snack.24
47
At the commencement of the interview, the accused gave his full name, date of birth and address, when asked. The address he gave was the address of the Unit. By way of general observation, I note that many of his answers from that point onwards were short, such as âyepâ, ânupâ, âdonât knowâ or âIâm not sureâ, and were sometimes preceded with an âumâ or other verbal hesitation, but he also gave narrative answers. It is also apt to note that, at times, the accused appeared to change his answer, for instance, from saying âNupâ to saying âOh yeah.â The impression I formed was that such changes might be explained by either a less than attentive initial response, followed by a different answer upon the accused giving the question proper attention, or a change of recollection by him upon a momentâs reflection. Of course, to the extent that such aspects of the interview might have significance,
20 PB 796.
21 PB 796.
22 PB 796.
23 PB 796.
24 PB 818.
[2024] WASC 517
FIANNACA J
Page 15
it would be for the jury to make their own assessment about the
potential explanation at trial.
48
After the accused provided his name, date of birth and address, the following exchange occurred which was intended to ascertain the accusedâs level of comprehension:25
DET S/CON WADE: What level of education have you reached?
SMART: Oh, year 11.
DET S/CON WADE: Year 11. Did you finish year 11?
SMART: Oh, yeah.
DET S/CON WADE: Yep. Are you employed or working at the moment?
SMART: Oh, nup.
DET S/CON WADE: No. All right. Can you read and write English?
SMART: Yeah.
DET S/CON WADE: Yep. So if I hand you a newspaper you can read the article in the newspaper?
SMART: Yep.
DET S/CON WADE: Yep. And you can also write English?
SMART: Yep.
DET S/CON WADE: Yep. All right. If at any time during this interview, um, I ask a question or Chad asks a question you donât understand, just let us know, and weâll rephrase it into something we â you do understand, hopefully. Um, are you in any way affected by alcohol at the moment?
SMART: No.
DET S/CON WADE: No. Are you in any way affected by drugs or medication at the moment?
SMART: No.
DET S/CON WADE: No. Um, are you suffering from any illnesses?
25 PB 794 â 795. Extracts quoted in these reasons are from the transcripts of the video records of interview and retain the names used in the transcripts to identify the speakers.
[2024] WASC 517
FIANNACA J
Page 16
SMART: Oh, nup.
DET S/CON WADE: No. Um, and what about any injuries at the moment?
SMART: Oh, um, nup.
DET S/CON WADE: Nup. All right.
SMART: Iâve got, um, disability.
DET S/CON WADE: Yep. Whatâs the disability?
SMART: Uh, just a â intellectual.
DET S/CON WADE: Intellectual disability. All right. Um, what does that disability, sort of, prevent you from doing, or how does the disability affect you?
SMART: Oh, I donât know.
DET S/CON WADE: Donât know?
SMART: Yep.
DET S/CON WADE: All right. So itâs pretty important, everything I go through, that you understand it. Okay. So weâll do it nice and slowly. And if thereâs something you donât understand, just let me know. All right. Weâll â we donât â weâre not trying to confuse you or trick you or anything like that. The important thing is you understand everything thatâs happening in this room. All right.
SMART: Yeah.
49
Detective Wade then reminded the accused that, although he had been arrested as a suspect for the offence of grievous bodily harm, the deceased had died, a fact of which the accused had been informed the previous night.26 There followed the exchange referred to at [46] above, after which Detective Wade reminded the accused that he had been provided with his rights when he was arrested. He then stated the rights again.27 The accused confirmed he had spoken with a lawyer twice, most recently ten minutes before entering the interview room.28
26 PB 796.
27 PB 797.
28 PB 797.
[2024] WASC 517
FIANNACA J
Page 17
He confirmed the lawyer had provided him with advice.
29 Detective Wade then said:30
So, if at any time you want to make another call to that lawyer, you let me know. But obviously your lawyerâs given you your advice. Okay.
50
The accused also confirmed he had spoken with his mother about ten minutes before the interview. There was then the following exchange:31
DET S/CON WADE: ⊠so, yeah, if at any time you want to execute any of those rights or make any more calls, just let me know and we can arrange something. All right?
SMART: Mmm.
51
Detective Wade then said, âThis is the important partâ, and went on to tell the accused that they needed to speak to him about the incident that had occurred at his unit, but that he first needed to give the accused a caution and make sure that the accused understood that caution. The accused said, âYeah.â32
52
The interview then proceeded as follows:33
DET S/CON WADE: All right. So that caution is that you donât have to say anything unless you wish to do so. Anything you do say will be recorded, and the recording will be burnt to a DVD, and that recording can â may be used in evidence in court.
SMART: Yeah.
DET S/CON WADE: Do you understand that?
SMART: Yeah.
DET S/CON WADE: Okay. In your own words, can you explain that back to me?
SMART: Uh, in court.
DET S/CON WADE: Yep.
SMART: And, yeah [indistinct] in court.
29 PB 797.
30 PB 797.
31 PB 797.
32 PB 797.
33 PB 798 â 799.
[2024] WASC 517
FIANNACA J
Page 18
DET S/CON WADE: Okay.
SMART: [indistinct]
DET S/CON WADE: When I say that you donât have to answer the questions, what does that mean?
SMART: Uh, nup, nothing.
DET S/CON WADE: Yep. If I ask you a question, do you have to answer it?
SMART: No.
DET S/CON WADE: No. And if you donât want to answer it, what would you say?
SMART: Uh, no comment.
DET S/CON WADE: Exactly. No comment, um, instead of just sitting there quietly, weâd just prefer you to say âno commentâ or something like that. All right. So, if I ask you 10 questions, how many do you have to answer?
SMART: None.
DET S/CON WADE: None. Exactly. All right. And when I say that this is going to be recorded, how can it be recorded?
SMART: Um, through the, um, through the camera.
DET S/CON WADE: Yep, so thereâs a camera behind that glass panel over top there, you can actually see it.
SMART: Yeah.
DET S/CON WADE: And thereâs a couple of button looking things on the table and microphones.
SMART: Yeah, I didnât want to, you know, do an interview.
DET S/CON WADE: Yep.
SMART: Yeah, this, um, yeah.
DET S/CON WADE: Yep, so youâve got your lawyer â legal advice?
SMART: Yeah.
DET S/CON STONE: Yep. Okay. As I said to you, weâre still in â weâre still going to ask you some questions, but if your lawyerâs told you not to do one, then you donât have to answer them. Okay. Iâm still
[2024] WASC 517
FIANNACA J
Page 19
going to ask you some questions, but itâs up to you, on your legal advice, as to whether you do answer them or not. All right.
SMART: Yeah.
DET S/CON WADE: So where can this recording then be played?
SMART: In court.
DET S/CON WADE: In court. And do you know who would be watching the recording in court?
SMART: Yeah, the magistrate.
DET S/CON WADE: The magistrate, or a judge, depending on which court it is.
SMART: Yeah.
53
When asked what he could tell the interviewers about the incident, he said:34
Um, nothing. Oh, Iâm not sure, I wasnât there.
54
He then said:35
I came back and I was ride â riding on the bus and I saw, um, all police there. And it was, like, closed down or something.
55
It is sufficient for present purposes to note that the accused did not give a detailed narrative account at any stage of his whereabouts or movements in the periods leading up to, during or after the time when the incident occurred in which the deceased was killed. Rather, his account emerged through answers to probing questions. Some of the answers were in narrative form, although brief. The essence of the accusedâs account was that he denied being present during any incident with the deceased on 14 January 2023, being in any fight with the deceased, or causing the deceased any injuries around the time of his death. As the State noted in its submissions, in summary, insofar as the days surrounding the incident were concerned, the accused said that:
(1) On Friday 13 January 2023, at around 3.00 pm or 4.00 pm, he went alone to Yagan Square in Perth.36
34 PB 799.
35 PB 799.
36 PB 800 â 801.
[2024] WASC 517
FIANNACA J
Page 20
(2) On Friday night, he slept at the house of a mate, whose name he did not know.37
(3) He did not recall what he was wearing on the night.38
(4) On Saturday, 14 January 2023, he spent all day in town near Yagan Square39 until he went to his sister Shariâs house in Ellenbrook.40
(5) He took the bus to his house at some stage on Saturday, but he saw âall the police thereâ and left.41
(6) He found out from his mum that the deceased had died. She called him and told him about it.42
56
I note that the accused was confused at times about the days, which seemed to be due, at least in part, to the fact that he was not sure what the day was when he was being interviewed.43 Nevertheless, it appeared from the flow of the interview that he was able to relate particular events to either the Friday or Saturday once the police clarified the day, and related the questions to the number of days before the interview.
57
In its submissions, the State noted that, in relation to other background matters, the accused said in the first interview that:
(1) He had lived at the Unit for about two or three years.44
(2) He lived there with his sister, Selene Smart.45
(3) The deceased had been living there recently, for a couple of weeks. He knew the deceased through his sister Stephanie.46
(4) The deceased slept on a mattress in the lounge room.47
37 PB 802, 806, 818.
38 PB 806.
39 PB 802.
40 PB 801.
41 PB 808 â 809.
42 PB 819.
43 PB 805.
44 PB 806.
45 PB 806 â 807.
46 PB 807 â 808.
47 PB 812.
[2024] WASC 517
FIANNACA J
Page 21
58
There are some other matters that will be relevant to a consideration of the accusedâs submissions concerning his level of comprehension and the reliability of his account. First, it is apparent that the accused appreciated the difference between not knowing the answer to a question and not wanting to say the answer if he did know. When he said that he did not know the name of the mate with whom he went to stay on the Friday night, he was asked, âYou donât know, or you donât want to say?â He answered, âI donât know.â48 Later, he was asked about the mobile phones that were in his possession at the time he was arrested. He said he had two phones, one that had been given to him by one sister, and the other which belonged to his other sister.49 The following exchange then occurred (italics added):50
DET S/CON WADE: All right. Do those phones work?
SMART: Yeah.
DET S/CON WADE: Do they have SIM cards in it?
SMART: Yeah.
DET S/CON WADE: Yeah. Do they have PIN numbers?
SMART: Nup.
DET S/CON WADE: Nup. So theyâre unlocked are they?
SMART: Yeah.
DET S/CON WADE: Yep.
SMART: Yeah, oneâs got PIN number.
DET S/CON WADE: Yep. Do you know what that PIN number is?
SMART: Oh, nup.
DET S/CON WADE: Nup?
SMART: Nup.
DET S/CON WADE: All right. And what about â what about the other one? Does that have a â a lock or anything on it?
SMART: I donât know.
48 PB 806.
49 PB 815.
50 PB 815 â 816.
[2024] WASC 517
FIANNACA J
Page 22
DET S/CON WADE: No. All right.
DET S/CON STONE: Which oneâs which?
SMART: Um, donât know.
DET S/CON WADE: Donât know or donât want to tell us?
SMART: Uh, donât know. Mind games, do you know what I mean? Control. Hey? Nah. Do you want to play?
59
The accusedâs gestures at the time of his last answer and comments, together with what he said, suggested, in my view, that he thought the asking of the question âDonât know or donât want to tell us?â was the police trying to engage him in âmind gamesâ, and it was not going to work if they wanted to âplayâ. This tends to support an inference that he was paying attention to the questions and was mindful of the need to be careful how he answered questions.
60
The other matter is that the accused appeared to be mindful of the need to distinguish between an âinjuryâ and self-inflicted damage, when he was asked about an apparent injury to his eye, in the following exchange:51
DET S/CON WADE: You right? All right. What I might get him â tell me about your eye, your injuries.
SMART: I donât have any injuries. This is from methamphetamine.
DET S/CON WADE: Yep.
SMART: Yeah.
DET S/CON WADE: Okay. So the â â â
SMART: Oh, the [indistinct] the chemicals burnt my eye.
DET S/CON WADE: Yep. All right.
SMART: Yeah.
DET S/CON WADE: So you â you take methamphetamine?
SMART: Yeah.
DET S/CON WADE: How do you take it?
SMART: Oh, with the, like, just a needle.
51 PB 812 â 814.
[2024] WASC 517
FIANNACA J
Page 23
DET S/CON WADE: Needle, all right.
SMART: Yeah.
DET S/CON WADE: And methamphetamine causes you to what? To pick at your eye, or it â â â
SMART: Oh, yeah.
DET S/CON WADE: Yep.
SMART: Because if something went in my eye, I think dust or something.
DET S/CON WADE: Yep.
SMART: And, like [indistinct] like, I was trying to take it out and wash it out and, yeah. And try and â â â
DET S/CON WADE: Have you seen â â â
SMART: â â â thatâs â â â
DET S/CON WADE: Have you seen your eye?
SMART: Oh, nah. I havenât seen my eye.
DET S/CON WADE: Can I take a photo and show you your eye?
SMART: Oh, yeah.
DET S/CON WADE: Yep.
SMART: Yep. Yeah.
DET S/CON WADE: So itâs actually, like, down to â down to the b â to the â sort of, itâs bleeding. Itâs an open wound almost.
SMART: Yeah.
DET S/CON WADE: Yeah. So how did that occur?
SMART: Oh, from just the â like, like, something in my eye.
DET S/CON WADE: Yep.
SMART: Like, I was washing it out with water.
DET S/CON WADE: Yep.
SMART: And just, yeah, I dunno. Something went in my eye. And, yeah, just, um, I donât know how it got like this, but. Itâs a bit weird.
[2024] WASC 517
FIANNACA J
Page 24
DET S/CON WADE: Mmm. Itâs quite a â youâve actually got, like, a black eye from it as well.
SMART: Yeah, Iâm not really sure.
61
At the conclusion of the interview, the following exchange occurred, which is relevant to the issue of voluntariness:52
DET S/CON WADE: Nup. All right. So that completes this interview. Okay. Iâll just go through some final questions. Um, have you answered all the questions we have asked you today of your own free will?
SMART: Yeah.
DET S/CON WADE: Yep. Have you been threatened at all to participate in this interview?
SMART: Oh, nup.
DET S/CON WADE: Nup. Have you been promised anything in return for participating in this interview?
SMART: Nup.
DET S/CON WADE: Nope. Is there anything else you wish to say in relation to this matter?
SMART: Yeah.
DET S/CON WADE: Yep.
SMART: Um, oh, nah.
DET S/CON WADE: No. Nothing else you want to say?
SMART: Nup.
Second interview â 17 January 2023
62
The second interview was conducted on 17 January 2023 by Detective Wade, with Detective Senior Constable Maclean (Detective Maclean). It commenced at 5.25 pm, as confirmed by Detective Wade on camera (the time counter on the screen is about four minutes out, showing 17:29). The interview proceeded for a total time of about one hour and 49 minutes, with a break for 36 minutes after about one hour and 18 minutes (18:47 on the counter, resuming at 19:23).
52 PB 821.
[2024] WASC 517
FIANNACA J
Page 25
63
In the second interview, the accused was asked the same questions he had been asked in the first interview to ascertain his level of comprehension, and he gave the same answers concerning his level of schooling and his ability to read and write English.53 He confirmed he was not affected by alcohol, drugs or medication, that he was not suffering from any illnesses, that his eye injury was not affecting him, and that he was not tired.54 Although the accused initially said he had not spoken to a lawyer, which may have been because he thought he was being asked about the period since the first interview, he eventually agreed he had spoken with a lawyer at the Aboriginal Legal Service the day before, and had received advice.55 The accused was then told about his rights again, including the right to an interpreter. The following exchange occurred in that regard:56
DET S/CON WADE: ⊠And you also have the right to, uh, an interpreter if you need an interpreter, but language seem â sorry. English seems to be the â the main language you speak. Is it?
SMART: Yeah.
DET S/CON WADE: Do you speak any other languages?
SMART: Uh, no.
DET S/CON WADE: No. And you understand me okay?
SMART: Yeah.
DET S/CON WADE: Yep. All right. Um, I suppose, as we go along, weâre gonna be asking you a series of questions. Okay? So, if at any stage during these questions, you donât understand, if I ask it or Andrew asks it, just let us know, and weâll rephrase it into something you do understand.
SMART: Yeah.
64
The accused agreed that he had been told he was now under arrest on suspicion of murder.57 He was told that if he wanted to exercise any of his rights during the interview, to let Detective Wade know, and the
53 PB 823 â 824.
54 PB 824.
55 PB 825 â 826.
56 PB 826 â 827.
57 PB 827.
[2024] WASC 517
FIANNACA J
Page 26
police would
âarrange for that to happenâ.58 The caution was then provided to the accused as follows:59
DET S/CON WADE: All right. As I said, we have to talk to you about a murder, um, that occurred at about 7.40 pm, um, on Saturday, the 14th of January, 2023 at unit 1-76 Alexander Drive in Yokine. All right? Before I do talk to you about that, I have to caution you. Okay? And itâs pretty important that you understand this caution, and Iâm gonna ask you to sort of rephrase it back to me. Okay? Um, the caution is that you donât have to say anything unless you wish to do so, and anything you do say will be recorded, and may be used as evidence. Okay? You can answer some of my questions, and not others. Itâs completely up to you. Do you understand that?
SMART: Yeah.
DET S/CON WADE: Okay. Can you explain that back to me in your own words?
SMART: Uh, I donât have to, uh, an â answer the questions. I â uh, what is it again?
DET S/CON WADE: Yeah. Do you want me to go through it step by step? Like we did the other night?
SMART: Yeah.
DET S/CON WADE: Yep. So, when I say you donât have to say anything unless you wish to do so, what does that mean to you?
SMART: Um, I donât have to answer any questions.
DET S/CON WADE: Exactly. So, I can ask you as many questions I want, and if you donât want to answer them, what do you say?
SMART: Something like no comment.
DET S/CON WADE: Exactly. All right. Whose choice is it to answer the question?
SMART: Uh, me.
DET S/CON WADE: Yep. So, I said this the other day, but if I ask you five questions, how many do you have to answer?
SMART: Uh, none.
58 PB 827.
59 PB 827 â 828.
[2024] WASC 517
FIANNACA J
Page 27
DET S/CON WADE: Exactly. All right. So, itâs completely up to you which questions you answer, if you want to answer any questions at all. If you do answer questions, howâs this being recorded?
SMART: Uh, from the camera?
DET S/CON WADE: Yep. The cameras and the microphones in the room.
SMART: Yep.
DET S/CON WADE: All right. And where can this recording be played?
SMART: Uh, in court,
DET S/CON WADE: In court. And who would be viewing this recording in court?
SMART: Uh, the magistrate.
DET S/CON WADE: Yep. Or the judge, or jury, depending on, sort of, which court [is] involved âŠ. Is that correct?
SMART: Yeah.
65
It is fair to say, as the State submitted, that during the course of the interview that followed, the accused generally confirmed the account he gave in the first interview in respect of the days surrounding the incident, as outlined above. I note that, when he was asked to draw the location of the Unit, he made a sketch which contained little detail (âKW1â). However, he was able to name the surrounding streets, was able to describe that the entrance to the Unit faced the carpark, and was able to describe where various other features were on the sketch.60 He was also able to provide a description of the layout of the Unit.61 He said that he used both the front and the back entrances to arrive and leave the Unit.62 He acknowledged there was a fence at the back of the units, but said it was not that tall and agreed it was âeasy enoughâ to jump over it.63 He was asked if he wished to sign the sketch he had made, to identify it as his sketch, but was told he did not have to do so. He agreed to sign it.64
60 PB 835 â 839.
61 PB 840 â 841.
62 PB 838.
63 PB 838 â 839.
64 PB 839 â 840.
[2024] WASC 517
FIANNACA J
Page 28
66
The accused also provided the following details:
(1) He got to Perth on the Friday (13 January 2023) by catching the bus from Morley and paying in change.65
(2) He was not sure where he slept on the Saturday night, but he stayed with a friend.66
(3) The clothes he was arrested in were the same clothes he wore on Friday and Saturday, which included a green shirt and blue pants, but did not include a hat.67
67
The accused was told that, as part of the investigation, police had secured âa lot of CCTV footage from neighbours and all of that sort of stuffâ.68 When asked if he was aware of any CCTV cameras around the units, he said, âUh, nope.â69 He was shown images taken by two cameras from a neighbourâs house, one of which captured vision of the carpark of the unit complex, with the Unit appearing in a corner of the building (on an image marked âKW2â),70 and the other of which captured vision of the rear of the Unit.71 The accused agreed that the two cameras would show if people arrived at or left the Unit.72
68
During the interview, the accused was then shown parts of the CCTV video footage, by the police playing excerpts of the video and showing the accused stills from the video. Although the accused maintained initially that he was not at the Unit on Saturday (14 January 2023) between midday and midnight,73 he then agreed that the still marked âKW5â from the CCTV footage from the neighbourâs property showed him arriving at the Unit on his bicycle on 14 January 2023 at 4.25 pm.74 He initially said it âmight beâ him, but then admitted it was him after acknowledging that he recognised the clothing the person was wearing as his clothing, and that the bike was his.75 He denied that he
65 PB 831.
66 PB 833, 845 â 846.
67 PB 834.
68 PB 841.
69 PB 841.
70 PB 885.
71 PB 841 â 842.
72 PB 842.
73 PB 842.
74 PB 843, 888. Detective Wade explained to the accused that the time stamp on the video was just over 10 minutes slow, so that, while it appeared as 4.14 pm on the video, the actual time was 4.25 pm.
75 PB 843.
[2024] WASC 517
FIANNACA J
Page 29
was the person depicted in another image from the footage (
âKW4â) who appeared to be walking along the fence line.76
69
Having been shown âKW5â, the accused admitted that he remembered going to the Unit that day.77 In answer to specific questions, he said:
(1) He was only at home for about 10 or 20 minutes;78
(2) No one was at home when he got there, but his sister ârocked upâ while he was there and was making something to eat;79 and
(3) The deceased was not there while he was at the Unit or when he left;80 he did not see the deceased at the Unit.81
70
However, when parts of the statement of Selene Smart were read to the accused, he agreed that he had been at the Unit in the morning, when Selene was there, but the deceased had gone somewhere.82 He agreed he had watched a television show with Selene after lunch.83 There was then the following exchange:84
DET S/CON WADE: Yep. Did Peter come home at any stage during that?
SMART: Uh, no.
DET S/CON WADE: No. So, the next paragraph [reading from the statement of Selene Smart]: âWhen the show was about halfway through, Peter arrived home.â
SMART: Yeah.
DET S/CON WADE: So, youâre saying Peter wasnât there. Sheâs saying Peter was.
SMART: Oh, I think I went out for a bit.
DET S/CON WADE: You went out?
SMART: Yeah.
76 PB 842, 887.
77 PB 843.
78 PB 843.
79 PB 843 â 844.
80 PB 844.
81 PB 852 â 853.
82 PB 851 â 852.
83 PB 852.
84 PB 852 â 853.
[2024] WASC 517
FIANNACA J
Page 30
DET S/CON WADE: Were you â did you go out before he arrived, or after?
SMART: No.
DET S/CON WADE: Did you see him there?
SMART: Uh, no.
DET S/CON WADE: She said Peter came in over the back fence.
71
There was no response by the accused to that last statement by Detective Wade. Detective Maclean then asked the accused questions about how much of the television show the accused had watched and the duration of the show. The accused said he was not sure how long the show went for. He said he did not watch a lot, âlike, five minutes of itâ, and he could not remember what happened on the show.85
72
The interview continued as follows:86
DET S/CON WADE: All right. So, while you were there with Celine, was Peter there?
SMART: Um, Iâm not sure.
DET S/CON WADE: Youâre not sure. Do you remember seeing Peter at the house on Saturday?
SMART: No. No, I didnât. No. No.
DET S/CON WADE: No. All right. So, next, [reading from Selene Smartâs statement] âPeter came into the living room and sat down with us. Peter and I were chatting. Samuel was doing his own thing, probably on his phone. We were all in the room.â Do you remember that?
SMART: Uh, yeah, I think.
DET S/CON WADE: Tell me about it.
SMART: Well, ⊠I think we were all, like, sitting down and that, and then I left. They were watching the show, and then I left.
DET S/CON WADE: You left?
SMART: Yeah.
DET S/CON WADE: Where did you go?
85 PB 853.
86 PB 853 â 854.
[2024] WASC 517
FIANNACA J
Page 31
SMART: I went to the Yagan Square.
DET S/CON WADE: Okay. So, when you left, ⊠who was still at the house?
SMART: Uh, Selene and, um, Peter.
73
The accused said he did not come back to the house, as he was arrested.87 When he was referred again to the image in âKW5â (the person arriving on the bicycle), he said, âThat could have been me.â88 However, he then appeared to accept again that it was him, as, when he was asked what happened after that picture, he said:89
SMART: Um, uh, nothing. Just [indistinct] yeah, I was sort of sitting down and â yeah.
DET S/CON MACLEAN: So, this is â this is before you watched The Bachelor in the room with your sister and Peter?
SMART: Uh, yeah.
DET S/CON MACLEAN: Yeah. And then you said you left?
SMART: Yeah.
74
The accused said he was not alone with the deceased at the house at any stage on the Saturday afternoon.90 When a part of Selene Smartâs statement was put to him, in which she said she left the Unit at one stage, leaving the accused and the deceased at the Unit, the accused disagreed:91
DET S/CON WADE: ⊠So, in Seleneâs statement, she says, at some stage in the afternoon, maybe about an hour and a half after The Bachelor finished, Iâd have â âI decided to go out for a bit. When I left, Peter and Samuel were in the living room.â
SMART: Yeah, no. I left when â before she left.
DET S/CON WADE: You left before she left?
SMART: Yes.
DET S/CON WADE: All right. So, you werenât in the room alone with Peter?
87 PB 854.
88 PB 854.
89 PB 854.
90 PB 855.
91 PB 855 â 856.
[2024] WASC 517
FIANNACA J
Page 32
SMART: No.
75
The accused denied that anything had occurred between him and the deceased during the afternoon of Saturday, 14 January 2023.92
76
The police then showed the accused CCTV video footage taken at 7.40 pm on the Saturday, which showed a person walking into the Unit while carrying an item which the police suggested was a knife, and which, arguably, does have the appearance of a knife with a large blade.93 The accused said he was not sure if that was what the person was carrying.94 The interviewing officers drew the accusedâs attention to the clothing worn by the person in the CCTV footage, and suggested that the various items of clothing were consistent with the clothing he had been wearing that day. However, he consistently denied it was him in the footage.95 He said he was not sure what shoes the person in the footage was wearing.96 As for the colour of the shirt worn by the person in the footage (bearing in mind that the accused had agreed he had been wearing a green t-shirt), the following exchange occurred:97
DET S/CON MACLEAN: Yeah. So, that sort of â what colour do you call that?
SMART: Not green.
DET S/CON MACLEAN: Yeah. Itâs like a weird green colour, I guess, but green. Yeah.
SMART: Yeah.
77
The accused reiterated that he was in Yagan Square and Northbridge at that time (that is, around 7.40 pm).98 He said he was in the area of the shops, ânear Myerâs and thatâ,99 but was not able to be precise about his location when the police indicated that they could find the CCTV cameras that would have had the relevant areas under observation, and would be able to find him on the CCTV footage.100 When asked if he would be on those cameras, the accused said, âUh, yeah.â
92 PB 856.
93 Still images from the footage are in âKW10â at PB 893.
94 PB 861.
95 PB 856 â 861.
96 PB 857.
97 PB 857.
98 PB 858 â 859.
99 PB 859.
100 PB 859.
[2024] WASC 517
FIANNACA J
Page 33
78
Returning to the CCTV footage from the neighbourâs property, Detective Wade suggested that the accused has a distinctive way of walking and âcanterâ, to which the accused responded, âYep.â101 However, when it was suggested to him that the person in the CCTV footage was âwalking exactly the sameâ as the accused, he said, âI donât knowâ and âIâm not really sure.â102 When asked if the person in the footage was him, he said, âUh, no.â103 In relation to the shoes, he said, âA lot of people with the same shoes as mine.â104
79
After Detective Wade pointed out that the person went into the Unit with a knife, the accused said, âThatâs not meâ and âThatâs probably someone else.â105 When asked why he was saying that, the accused said, âThatâs â thatâs not what I wore, and thatâs no â thatâs not me.â106 He also said that a lot of people came into the complex, and repeated that it was not him.107 The person in the CCTV footage appeared to be wearing a âhoodieâ both before going into the Unit and when coming out of the Unit later, as appears in stills from the CCTV, âKW10â and âKW16â,108 which were shown to the accused, although he was also shown the video footage.109 The accused denied he was the person in those images. When asked if he owned any hooded jumpers, the accused said:110
No, I â no. Pretty sure. Yeah.
80
This was taken by the officer ultimately as an admission that the accused did have hooded jumpers, prompting the question of what colour they were. The accused said they were white and were at his âmumâs houseâ.111
81
Detective Wade also put to the accused that the person in the CCTV footage was âplaying at his left eyeâ, which the accused had been doing the last two days while he had been with Detective Wade,
101 PB 860.
102 PB 860.
103 PB 860.
104 PB 861.
105 PB 861.
106 PB 862.
107 PB 862 â 863.
108 PB 893, 899.
109 PB 856, 860 â 863.
110 PB 863.
111 PB 863.
[2024] WASC 517
FIANNACA J
Page 34
because of the injury to the accused
âs eye.112 The accused said, âNoâ,113 and later said, âYeah, itâs not me.â114
82
The accused denied stabbing the deceased.115 When asked if he was sure, he said, âYeah.â116 When he was shown a photo of the wound to the deceased, he denied that he was responsible for causing the injury.117 He said he âwouldnât do thatâ, and that it was âprobably one of [the deceasedâs] mates or somethingâ, but he did not know.118
83
When the accusation was put to the accused directly that he had gone to the house and stabbed the deceased in the neck, he said, âYeah, no. That wasnât me. I wouldnât do that.â119 When Detective Maclean asked him if he understood that the police were saying that the person holding the knife looked âvery, very similar in appearanceâ to him, the accused said, âIâm not really sure. Definitely wasnât me.â120 Shortly after that, the accused explained that when he said, âIâm not really sureâ, he meant that he had nothing to do with it.121 When it was put to him again that the police were alleging that he was responsible for the incident, he said, âNo, Iâm not.â122
84
After taking a break, the following exchange occurred:123
DET S/CON MACLEAN: Sorry â do you agree that, mate, in the â what? 38 minutes since we turned the video on pause, do you remember what we did?
SMART: Um, did you â did â asking questions, is it?
DET S/CON MACLEAN: Asking questions?
SMART: Well, I â yous was asking questions, isnât it?
DET S/CON MACLEAN: What questions did we ask?
SMART: Well â well â well, where was it, and that?
112 PB 864.
113 PB 864.
114 PB 865.
115 PB 864.
116 PB 864.
117 PB 864.
118 PB 865.
119 PB 866.
120 PB 866.
121 PB 866.
122 PB 867.
123 PB 868 â 869.
[2024] WASC 517
FIANNACA J
Page 35
DET S/CON MACLEAN: No, that was before the interview. Thatâs before we paused it. So, when we â when we put it on pause, I said, I wasnât gonna ask you any questions. And do you agree that you â you then asked for a cigarette?
SMART: Oh yeah.
DET S/CON MACLEAN: Yeah. We went out the back, out â out here.
SMART: Yeah.
DET S/CON MACLEAN: Had a cigarette â â â
SMART: Yeah.
DET S/CON MACLEAN: â â â and then came back in here. Have I asked you any question â outside of, you asked for some food. I said, âWell, once this is done, weâll organise some food.â I asked you if you had any preferences for food, and if you â anything you couldnât eat, but have I asked you any questions in regards to anything, um, in relation to what weâre interviewing you about?
SMART: Um, no.
DET S/CON MACLEAN: No. Okay. So, thatâs just quite important to cover off, just cause the video was getting the beeping that was going on. I just wanted to cover off with you, that you were happy to â I havenât asked you any questions in relation to this while the videoâs been off. Okay?
SMART: Yeah.
DET S/CON MACLEAN: Happy with that?
SMART: Yeah.
85
The accused was then asked about stills from CCTV footage from another unit at the residential complex, namely unit nine. The accused agreed that the person in the stills, âKW12â, âKW13â and âKW14â,124 was him.125 The images show a bulge in the front of the accusedâs shirt, from which it could be inferred that he had an item concealed under his shirt. The accused said he was not sure what it was.126 He said that he did not know, but it might have been âa pipe or somethingâ, and it was not a knife.127
124 PB 895 â 897.
125 PB 869 â 870.
126 PB 870.
127 PB 870 â 871.
[2024] WASC 517
FIANNACA J
Page 36
86
There were then questions about which hand the accused used. Although he initially said he was right-handed, he went on to say he was also left-handed, eventually saying he is âboth-handedâ.128 He was shown images from the CCTV video of the person leaving the Unit, as described earlier, and it was pointed out that the person had a drink in their hand. The accused said he was not sure.129 When it was put to him that it was him, he said, âNo.â130
87
The accused was then asked about whether he had seen his mother that night, referring to a statement given by Georgina Smart.131 The accused said he had not seen her.132 When he was told that his mother had described him to be wearing a black baseball cap and a backpack, among other things, he said, âIâm not sure.â133
88
The accused was then asked about the ring referred to at [25] and [42] above.134 The accused agreed that he had a Facebook account in the name of Sam Binder, and that the person appearing in a photo on that account, wearing a gold ring, was him.135 When asked if the person in the CCTV footage, who appeared to be wearing a gold ring, was him, he said variously, âNo ideaâ, Iâm not sureâ and âI donât knowâ,136 but when asked to clarify whether he was saying it was not him, or he did not know whether it was him, the accused said, âUh, itâs not me.â137
89
The second interview concluded as follows:138
DET S/CON WADE: All right. Weâll stop the interview now, man. Iâll just go through these final questions. Have you answered all the questions weâve asked you today of your own free will?
SMART: Oh yeah.
DET S/CON WADE: Yep. Have you been threatened to participate in this interview?
SMART: No idea.
DET S/CON WADE: Sorry?
128 PB 871 â 872.
129 PB 872.
130 PB 873.
131 See [26] above.
132 PB 875 â 876.
133 PB 875.
134 PB 877 â 880.
135 PB 879 â 880.
136 PB 880.
137 PB 881.
138 PB 882.
[2024] WASC 517
FIANNACA J
Page 37
SMART: Uh, no.
DET S/CON WADE: Let me ask you again. Have you been threatened by us to participate in this interview?
SMART: No. Yeah. No, not.
DET S/CON WADE: Have you been promised anything in return for participating in this interview?
SMART: Uh, no.
DET S/CON WADE: Is there anything else you wish to say in relation to this matter?
SMART: Uh, no.
90
The accused was then informed that a formal assessment of the evidence would be undertaken to determine what further action would be taken, and that he would be provided with a copy of the interview if he was charged.
The law
91
In The State of Western Australia v Gandy [No 2],139 Corboy J identified and discussed comprehensively the principles applicable on an application of this kind, going to the issues of voluntariness, the âfairness discretionâ, exclusion for public policy reasons and s 154(2) of the Criminal Investigation Act. I respectfully adopt his Honourâs analysis at [68] â 73, [78] â [83] (fairness discretion) and [44] â [52] (Criminal Investigation Act provisions), all of which is broadly relevant to the issues in this application.140 For convenience, I will outline the key principles. It is also necessary for me to emphasise some aspects of the authorities that are of particular relevance to the circumstances of this case.
Voluntariness
92
An admission made by an accused person out of court is not admissible in evidence unless it was made voluntarily, that is, âmade in the exercise of a free choice to speak or be silentâ.141 This has been referred to as âbasal voluntarinessâ and is concerned with confessions
139 The State of Western Australia v Gandy [No 2] [2015] WASC 386.
140 I also took this approach in Brott v The State of Western Australia [2016] WASC 300, and what follows is largely adopted from that judgment, but it is appropriate to outline the principles again for present purposes.
141 R v Lee [1950] HCA 25; (1950) 82 CLR 133 (R v Lee), 149.
[2024] WASC 517
FIANNACA J
Page 38
made under compulsion.
142 An admission is not made voluntarily if the will of the accused has been overborne as the result of a threat, duress, intimidation, persistent importunity or sustained or undue insistence or pressure from a person in authority, or as a result of a promise held out to the accused by such a person.143 If there is evidence that the accusedâs statement was preceded by an inducement, such as a threat or promise, held out by a person in authority, then it is not voluntary unless the inducement is shown to have been removed.144
93
While the justification for the rule is that a confession obtained in such circumstances is âdeemed so unreliable as a class that it should not be available for considerationâ145 as a matter of policy, its application depends on the nature and effect of any inducement.146 The issue under this head of exclusion is not the propriety of police conduct, but the effect of police conduct, in all the circumstances, on the will of the accused. The court must have regard to the age, background and psychological condition of the accused person and the circumstances in which the confession was made.147
94
However, as was pointed out by Gummow and Hayne JJ in Tofilau:148
The conclusion that a confessionalist had no choice to speak or stay silent is not required (and without more being established, would not be open) if it is observed that the confessionalist acted under some misapprehension or mistake, even if that misapprehension or mistake was induced by the person to whom the confession is made. Nor is that conclusion required (and without more being shown, the conclusion would not be open) if it is observed that there was some imbalance of power between the confessionalist and the person to whom the confession was made.
95
The onus is on the prosecution to establish, on the balance of probabilities, that a confession was made voluntarily, that is, that it was not induced by the conduct of a person or persons in authority in a manner referred to above.149
142 Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396, 417 [47], 420 [60] (Gummow & Hayne JJ).
143 Lee (144); Tofilau [60] (Gummow & Hayne JJ).
144 Lee (144).
145 Tofilau [53] (Gummow & Hayne JJ).
146 Ibrahim v The King [1914] AC 599, 610 â 611(Lord Sumner); R v Swaffield [1998] HCA 1; (1998) 192 CLR 159, 168 [11] (Brennan CJ).
147 Collins v The Queen [1980] FCA 82; (1980) 31 ALR 257, 307 (Brennan CJ).
148 Tofilau [63] (Gummow & Hayne JJ).
149 Wendo v The Queen [1963] HCA 19; (1963) 109 CLR 559.
[2024] WASC 517
FIANNACA J
Page 39
96
As some emphasis was placed by the accused in this case on the significance to voluntariness of whether he understood the caution given by the police at the start of each interview, it is apt to note that, at common law, confessional statements to a police officer are not inadmissible merely because no caution was administered by the officer.150 However, the want of a caution may be a reason for exclusion on discretionary grounds.151
97
As McKechnie J noted in Siddon v The State of Western Australia:152
The administration of a caution is not an essential precondition to voluntariness. The essential precondition is the exercise of a free choice. Cases can be found where a caution was not administered but the court was satisfied that the person who spoke did so voluntarily. To opposite effect, the administration of a caution does not automatically lead to the conclusion that a confession was voluntary. There are cases where, despite the administration of a caution, a person has not been shown to have understood their right to speak or remain silent.
98
However, as Hall J explained in The State of Western Australia v Gibson,153 the practice of cautioning a suspect arose as a means of ensuring that a confession was voluntary.154 His Honour noted that, in this State, pursuant to s 138(2)(b) of the Criminal Investigation Act, an arrested suspect must be given a caution, and, if it is not done, the answers may be held to be involuntary.155 His Honour further noted that the failure to administer a caution will not necessarily lead to that conclusion, but it is a highly relevant factor to take into account.156 Of particular relevance to the accusedâs submissions in this case, his Honour also said:157
The obligation to administer a caution to an arrested suspect will not be satisfied by merely reciting the relevant phrases in the presence of that suspect. The caution must be understood by the suspect in order for it to be relevant to the question of voluntariness.
150 Tofilau [359] (Callinan, Heydon & Crennan JJ).
151 Tofilau [353] (Callinan, Heydon & Crennan JJ).
152 Siddon v The State of Western Australia [2008] WASC 100 [4].
153 The State of Western Australia v Gibson [2014] WASC 240 (Gibson).
154 Gibson [144].
155 Gibson [145].
156 Gibson [145].
157 Gibson [146].
[2024] WASC 517
FIANNACA J
Page 40
99
That appreciation of the significance of the suspectâs understanding accords with the High Courtâs statement in R v Lee that:158
An accused must speak in the knowledge of a free choice to speak or remain silent in order for any admission to be classified as voluntary. (emphasis added)
Exclusion of voluntary admissions in the exercise of discretion
100
A confession that is held to have been made voluntarily may nevertheless be excluded in the exercise of a trial judgeâs discretion. In Swaffield, the High Court identified three categories of cases in which that might occur:
(a) where it would be unfair to the accused to admit evidence of the admission;
(b) where evidence of the admission should be excluded on public policy grounds; or
(c) where the prejudicial effect of the evidence outweighs its probative value.
101
The purpose of the fairness discretion is to protect the rights and privileges of the accused person; the purpose of the discretion to exclude an admission on public policy grounds is to protect the public interest; and the purpose of the discretion to reject evidence where its prejudicial effect outweighs its probative value is to guard against a miscarriage of justice.159
102
Where an admission has been made voluntarily, it is for the accused to establish, on the balance of probabilities, that evidence of the admission should be excluded on the ground of unfairness. The issue in respect of unfairness is not whether the accused has been treated unfairly, but whether the reception of the admission would be unfair to the accused in the conduct of his or her trial.160 In determining that question, the reliability of the admission, in light of the circumstances in which it was obtained, will always be a factor to be considered, but it is not the sole factor, and there may be cases in which an otherwise reliable account will be excluded due to other factors, such as illegality
158 Lee (144).
159 Swaffield [52] (Toohey, Gaudron & Gummow JJ).
160 Van der Meer v The Queen [1988] HCA 56; (1988) 35 A Crim R 232.
[2024] WASC 517
FIANNACA J
Page 41
or impropriety on the part
of law enforcement officers.161 In that context, the fact that no confession might have been made if the investigation had been properly conducted is a relevant factor.162
103
However, as was pointed out in R v Williams:163
Such other factors must, of course, go to the issue of relevant unfairness, that is, unfairness of such a nature whether procedural or substantive, as might jeopardise the right of the accused to a fair trial. It would follow that in the face of a confessional statement found to be reliable, the onus on the accused of establishing the relevant unfairness is necessarily high.
104
Further, the following observations of Hall J in The State of Western Australia v Smith are apposite in the circumstances of this case:164
Questioning by police is not to be regarded as unfair merely because it is persistent, nor is there any impropriety in a police officer indicating that the truth of an answer is not accepted because it does not accord with earlier answers given by the accused or with what others have said âŠ
Where a suspect during the course of an interview indicates a wish not to answer a question or to participate further in the interview, interviewing officers are entitled to ask further questions to clarify the accusedâs position.
105
In considering whether to exercise the discretion, the court is required to weigh the factors that are said to give rise to unfairness against the public interest in placing otherwise relevant and admissible evidence before the jury, so that those who commit serious offences may be brought to justice. The weighing of the public interest is relevant to the exercise of discretion whether exclusion is sought on the basis of unfairness or on the basis of public policy. The weight to be given to the public interest will vary according to âthe heinousness of the alleged crime and the reliability and unequivocalness of the alleged confessional statementâ.165
161 R v Williams (1992) 8 WAR 265, 273 â 274 (Rowland & Owen JJ); The State of Western Australia v Smith [2010] WASC 279 [9] (Hall J).
162 Duke v The Queen [1989] HCA 1; (1989) 180 CLR 508, 141 (Toohey J), referred to in R v Williams (273) (Rowland & Owen JJ).
163 R v Williams (273 â 274) (Rowland & Owen JJ).
164 Smith [10] â [11].
165 Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177, 203 (Deane J).
[2024] WASC 517
FIANNACA J
Page 42
106
The separate nature of the public policy ground of discretionary exclusion was explained by Deane J in Pollard v The Queen in the following passage (referred to by Corboy J in Gandy [No 2] at [82]):166
[T]he principal considerations of âhigh public policyâ which favour exclusion of evidence procured by unlawful conduct on the part of investigating police transcend any question of unfairness to the particular accused. In their forefront is the threat which calculated disregard of the law by those empowered to enforce it represents to the legal structure of our society and the integrity of the administration of criminal justice. It is the duty of the court to be vigilant to ensure that unlawful conduct on the part of the police is not encouraged by an appearance of judicial acquiescence. In some circumstances, the discharge of that duty requires the discretionary exclusion, in the public interest, of evidence obtained by such unlawful conduct.
107
The nature and the seriousness of any non-compliance by law enforcement officers with the law or some applicable judicially recognised standard of propriety is an important consideration. As Corboy J pointed out in Gandy [No 2],167 there is a spectrum of such conduct that may come under consideration, as was recognised by Deane J in Pollard, and the likelihood of exclusion of a confessional statement obtained as a result of such conduct will depend on where the conduct falls in that spectrum. For instance, accidental or isolated breaches will not ordinarily result in the exclusion from evidence of a voluntary confessional statement on public policy grounds, particularly if the alleged offence is serious. On the other hand, âa course of conduct on the part of the law enforcement officers which involved a 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 justiceâ168 would ordinarily result in exclusion on public policy grounds.
108
As will appear below, if the breach of a statutory requirement is under the Criminal Investigation Act, so as to engage the provisions of s 154(2) of that Act, the interview containing the admissions will be inadmissible, although the court has a discretion under s 155 to admit the interview if satisfied of certain conditions. Obviously, in such circumstances, the considerations referred to in the preceding paragraph that would favour discretionary exclusion of evidence on public policy
166 Pollard (203).
167 Gandy [No 2] [82].
168 Pollard (203 â 204).
[2024] WASC 517
FIANNACA J
Page 43
grounds would also militate
against the discretionary admission of that evidence under s 155.
Criminal Investigation Act
109
In assessing the potential application of the exclusionary provisions of the Criminal Investigation Act, it is convenient to start with the statutory power that was being exercised by the police when they interviewed the accused, and their obligations in exercising that power.
The statutory power under which the interviews were conducted
110
The accused was detained under s 139 of the Criminal Investigation Act. That section applies to an arrested suspect, which term is defined to mean, relevantly:
[A] person who is under arrest having been arrested under section 128 ⊠on suspicion of having committed an offence but who has not been arrested under an arrest warrant.22
He was arrested in respect of the present offences under s 128, on suspicion of having committed a serious offence.
111
Section 139 goes on to provide as follows, as is relevant for present purposes:
(2) A police officer or a public officer may detain an arrested suspect in custody after the suspect is arrested for the purposes of â
âŠ
(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.
âŠ
(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.
[2024] WASC 517
FIANNACA J
Page 44
112
There is no issue taken by the accused in this case with the lawfulness of his detention. The relevance of s 139 is that it stipulates that one of the purposes for which such a suspect may be detained is to be interviewed in relation to any offence he is suspected to have committed. In Wright v The State of Western Australia,169 it was held that the interview of an accused in such circumstances occurs in the purported exercise of the power of detention under s 139. Therefore, in interviewing the accused in this case, the police were acting in the purported exercise of the power of detention in respect of an arrested suspect.
The accusedâs rights as an arrested suspect and the obligations imposed on the police
113
As an arrested suspect, the accused had certain rights specified in s 138 of the Criminal Investigation Act, which included the rights of an arrested person under s 137. The right under s 137 that is relevant for present purposes is prescribed in subsection (3) as follows:
The arrested person is entitled â
âŠ
(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.
114
Section 138(2) provides that:
In addition to the rights in section 137 an arrested suspect is entitled â
(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.
115
Section 138(3) provides that:
169 Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1 (Wright).
[2024] WASC 517
FIANNACA J
Page 45
The officer in charge of the investigation170 must, as soon as practicable after the arrest of an arrested suspect â
(a) inform the suspect of his or her rights under s 137(3)(c) and subsection (2)(c); and
(b) afford the suspect his or her other rights under s 137 and subsection (2).
116
The word âinformâ means tell and the word âaffordâ means supply or furnish.171 The word âotherâ can only mean other than the provisions expressly referred to in s 138(3)(a),172 and therefore includes s 138(2)(d).
117
Section 138(4), which stipulates circumstances in which an officer âmay refuse an arrested suspect his or her right to communicate or attempt to communicate with a personâ, is not relevant to the issues in this application.
118
Although it appears that the proper construction of s 138(2)(d) and s 138(3)(b) insofar as it relates to s 138(2)(d) has not been considered previously in any authority, one aspect of the construction of those provisions is affected, in my opinion, by the construction that has been adopted in respect of s 138(2)(c) and s 138(3) as it relates to that provision.
119
In Wright, McLure P (with whom Buss JA agreed) was of the view that s 138(2)(c) is not the source of any duty imposed on police.173 Section 138(3)(a) is the source of the duty on police in relation to the suspectâs right under s 138(2)(c), and that is a duty to inform the suspect of his right to communicate with a lawyer. The obligation on police under s 138(3)(b) to âaffordâ a suspect his âother rightsâ does not apply to the right under s 138(2)(c).174 However, the police must not prevent an arrested suspect who wishes to exercise that right from doing so, which in effect would mean that he must be given a reasonable opportunity to do so.175
170 Section 12 of the CIA provides that an officer may delegate the performance of a function of the officer under the CIA, other than the power of delegation, to another officer. In such circumstances, the delegating officer must ensure that the other officer performs the duty.
171 Wright [29] (McLure P, Buss JA agreeing).
172 Wright [29] (McLure P, Buss JA agreeing).
173 Wright [29] (McLure P, Buss JA agreeing).
174 Wright [29] (McLure P, Buss JA agreeing).
175 Wright [30] (McLure P, Buss JA agreeing).
[2024] WASC 517
FIANNACA J
Page 46
120
Blaxell J, in the same case, agreed that, on a proper construction of s 138(3)(b), it did not apply to the arrested suspectâs right under s 138(2)(c), but concluded that, although s 138 is silent on the duty of an officer when a suspect expresses the wish to exercise one of the rights of communication, on a proper analysis of the provisions of that section, in the absence of any reasonable suspicion under s 138(4), âthe officer then detaining the arrested suspect is obliged to afford the suspect that rightâ if a suspect makes a request to exercise the right.176 In that regard, his Honour differed from the view expressed by McLure P that s 138(2)(c) is not the source of any duty imposed on police.
121
In the context of the right under s 138(2)(c), it seems to me that if an arrested suspect is denied a reasonable opportunity to exercise that right when he has requested to do so, it would make little practical difference whether the denial is constituted by a failure to comply with an obligation to âaffordâ the right (for instance, by failing to provide the means of communication) or by an act or omission that prevents the suspect from exercising the right. Nevertheless, in interpreting s 137(3)(d) and s 138(2)(d), I consider I must follow the majority view in Wright, as expressed by McLure P, in relation to the source of the duty imposed on police in respect of an accusedâs right under s 138(2)(c). In other words, s 137(3)(d) and s 138(2)(d) create a right in the accused, but do not impose a correlative duty on the police. The source of the duty in each case is s 138(3).
122
If s 137(3)(d) applies, the arrested suspect has a right to be assisted in understanding and communicating in spoken English by an interpreter or other qualified person. I will return later to what is meant by âinterpreter or other qualified personâ. At this stage, consistent with the principles identified by McLure P in Wright in respect of s 138(2)(c), the source of the duty imposed on police in respect of the right under s 137(3)(d) is s 138(3)(b), the effect of which is to impose on the officer in charge of the investigation an obligation to afford the suspect his or her right to be assisted by an interpreter or qualified person, and to do so as soon as practicable after the arrest of the suspect.
123
Giving the words of s 138(3)(b) their ordinary meaning, considered in context and having regard to the purpose of the provision, it is not clear whether the parameters of the obligation include an
176 Wright [164] (Blaxell J).
[2024] WASC 517
FIANNACA J
Page 47
obligation to obtain an interpreter or qualified person for the suspect
. In the context of the obligation under s 138(2)(c), McLure P noted in Wright that s 138(3) does not impose an obligation on a police officer to provide an arrested suspect with any facilities (for example, a telephone or telephone directory) which are reasonably necessary for the suspect to take advantage of the entitlement, but a police officer must not by any act or omission prevent the suspect from exercising his or her entitlement.177 Arguably, read with s 137(3)(d), s 137(3)(b) also does not appear to impose an obligation on the police to obtain an interpreter or qualified person for the suspect, only an obligation to allow the suspect to be assisted by an interpreter or qualified person. However, in Wright, McLure P suggested otherwise when referring to the requirements of s 138(3)(b) insofar as that provision relates to the arrested suspectâs right to the services of an interpreter. Her Honour said:178
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.
124
While her Honourâs remarks in respect of the effect of s 138(3)(b) as it pertains to an arrested suspectâs right to an interpreter were obiter dicta, I will assume that the provision does create a duty on the officer in charge to provide a suspect with an interpreter (or qualified person) where either s 137(3)(d) or s 138(2)(d) is engaged. It is certainly the courtâs experience that police will usually make arrangements for an interpreter to be contacted and be made available to a suspect if he or she is not able to communicate in English in a meaningful way.
125
In any event, in the circumstances of this case, the more pertinent obligation is that which arises in respect of the arrested suspectâs right under s 138(2)(d) not to be interviewed unless he has the services of an interpreter or a qualified person.
126
As with s 137(3)(d), the source of the duty on the police in respect of s 138(2)(d) is s 138(3)(b), the effect of which is to impose on the officer in charge of the investigation an obligation to afford the suspect his or her right not to be interviewed until the services of an interpreter or other qualified person are available. The effect of the obligation is to prohibit the police from interviewing the suspect if the suspect does not have the services of an interpreter or qualified person available to him.
177 Wright [29] (Mclure P, Buss JA agreeing); Gandy [No 2] [51] â [52], where Corboy J adopted the principles in Wright.
178 Wright [29].
[2024] WASC 517
FIANNACA J
Page 48
127
I will return to the interpretation of the opening phrase of s 138(2)(d), which conditions the existence of the right, when I deal with the accusedâs submission on that ground.
Section 154 and s 155
128
If s 138(2)(d) applied in this case, and the police contravened the obligation imposed by s 138(3)(b), then it is necessary to consider the consequences of the contravention.
129
Section 154(2) of the Criminal Investigation Act provides that:
If in the purported exercise of a power conferred by this Act or by an authorisation issued or purportedly issued under this Act â
(a) a thing relevant to an offence is seized or obtained; and
(b) a requirement of this Act in relation to exercising the power or issuing the authorisation, including a requirement that arises before or after the exercise of the power or the issue of the authorisation, 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 â
(c) the person does not object to the admission of the evidence; or
(d) the court decides otherwise under section 155.
130
The effect of s 154(2)(d) is that, where the evidence is not admissible because of s 154(2)(b), the provisions of s 155 are engaged to give the court a discretion to admit the evidence if certain requirements are met. The relevant provisions of s 155 state:
(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 â
(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;
[2024] WASC 517
FIANNACA J
Page 49
(c) the seriousness of any contravention of this Act in obtaining the evidence;
(d) whether any contravention of this Act in obtaining the evidence â
(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.
131
It can be seen that factors that are relevant to the discretionary exclusion of otherwise admissible evidence on public policy grounds at common law are also relevant to the discretionary admission of otherwise inadmissible evidence under s 155.179
132
Section 154(2) applies to the accusedâs admissions in his interviews with the police while he was an arrested suspect, and to the audio-visual records of the interviews, because they are things relevant to the offence with which he is charged and were obtained in the purported exercise of a power conferred by the Criminal Investigation Act (the power to detain an arrested suspect under s 139(2)).180 The requirements under s 138 and s 139 of the Criminal Investigation Act are requirements in relation to exercising the power under s 139(2), for the purposes of s 154(2)(b).181
133
If the accusedâs admissions in his interviews are otherwise admissible, the onus is on the accused to establish, on the balance of probabilities, that there has been a contravention of s 138. However, if a contravention is established, the interview would be inadmissible unless the court were satisfied that the interview should be admitted, having regard to the provisions of s 155. The burden of persuasion under s 155 would then fall on the State, and, to the extent that the decision turns on disputed issues of fact, the State must prove those facts on the balance of probabilities.182
179 See the analysis of Blaxell J in this regard in Wright [176] â [181].
180 Wright [20] (McLure P, Buss JA agreeing), [166] â [174] (Blaxell J).
181 Wright [21] (McLure P, Buss JA agreeing), [166] â [174] (Blaxell J).
182 Wright [188] (Blaxell J).
[2024] WASC 517
FIANNACA J
Page 50
134
It follows from the principles established in respect of s 138, s 139 and s 154 of the Criminal Investigation Act that, if police have interviewed an accused in contravention of s 138(3)(b) as it relates to s 138(2)(d), that is a contravention of a requirement of the Criminal Investigation Act in relation to exercising the power under s 139 to detain a suspect for the purposes of interviewing him in relation to an offence, including a requirement that arises before or after the exercise of the power, and any admission in relation to the offence obtained during the interviews is inadmissible in any criminal proceedings against the accused in a court unless the accused does not object to the admission of the evidence, or the court decides otherwise under s 155. In this case, the accused does object to the admission of the evidence. Therefore, if s 138(2)(d) applied to the accused, the admission of the evidence would depend on the court deciding otherwise under s 155.
135
While it is not necessary to make a decision under s 155 in this case, for reasons that follow, it may be observed that, in the case of a contravention by police of the obligation in respect of s 138(2)(d), the scope, if any, for the admission of a record of interview under s 155 would be very small. It might be expected that the accusedâs lack of sufficient capacity to understand or communicate in spoken English would be a significant obstacle to attributing probative value to any admissions (assuming the accused has some limited ability with the language and has been able to answer some questions), and, in any event, the prospect of an unfair trial would loom large.
The relationship between the common law and the provisions of the Criminal Investigation Act
136
While the accused relied on an alleged contravention of s 138(3)(b) in respect of s 138(2)(d) as a basis for submitting that any admissions by him in his interviews are inadmissible, he submitted that the matters which he contends are relevant to the application of s 138(2)(d), namely his intellectual disability and limited capacity with verbal communication, are relevant also to the issues of voluntariness and whether the interviews should be excluded in the exercise of discretion on the basis that their admission would be unfair to the accused. However, to the extent that the accused argues that such unfairness arises from the fact that he was not provided with a person qualified to assist him to communicate in spoken English, it raises the issue of the interaction between the common law and the provisions of the Criminal Investigation Act. The issue was addressed by McLure P
[2024] WASC 517
FIANNACA J
Page 51
in
Wright in the context of s 138(2)(c) of the Criminal Investigation Act:
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:
â(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.â
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 Queen183 (at [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.184
137
Although the question raised by her Honour was not resolved, it seems to me, consistent with her Honourâs observations, that an accusedâs request to speak with a lawyer may be relevant to the issues of voluntariness and the fairness of the interview, but any contravention of s 138 is to be dealt with under s 154(2) and s 155. In my view, that must be so in respect of s 138(2)(d).
183 Mackenzie v The Queen [2004] WASCA 146; (2004) 150 A Crim R 451, 465 â 466 [65] â [66] (Wheeler J; Malcolm CJ & McLure J agreeing).
184 Wright [45] â [48].
[2024] WASC 517
FIANNACA J
Page 52
Interpretation of relevant statutory provisions
138
This case calls for consideration of the proper construction of the opening phrase in s 138(2)(d): âif he or she is for any reason unable to understand or communicate in spoken English sufficientlyâ. The principles of statutory construction are well settled.185 As the Court of Appeal said in The State of Western Australia v Williams:186
Statutory construction involves attribution of meaning to statutory text. The Courtâs task in that regard must begin and end with the statutory text as a whole, considered in its context, including its objectively discerned statutory purpose.
139
Further, s 18 of the Interpretation Act 1984 (WA) provides:
In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object.
140
In Project Blue Sky Inc v Australian Broadcasting Authority,187 the plurality noted that â[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statuteâ,188 and that â[a] legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.â189
The Anunga guidelines
141
As I noted above, the accusedâs submissions rely in part on the Anunga guidelines, which are also referred to as âthe Anunga rulesâ, being guidelines laid down by Forster J (later Chief Justice) in Anunga with the agreement of Muirhead and Ward JJ of the Supreme Court of the Northern Territory. It is important to bear in mind that, while it has been noted that observance of the guidelines by police is not necessarily confined to Indigenous Australians who are from a âtribalâ or traditional
185 The State of Western Australia v Williams [2022] WASCA 105 [40].
186 The State of Western Australia v Williams [40], referring to Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [22] â [23] (French CJ, Hayne, Kiefel, Gageler & Keane JJ).
187 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (Project Blue Sky) [69] (McHugh, Gummow, Kirby & Hayne JJ).
188 Project Blue Sky [69] (McHugh, Gummow, Kirby & Hayne JJ).
189 Project Blue Sky [70] (McHugh, Gummow, Kirby & Hayne JJ).
[2024] WASC 517
FIANNACA J
Page 53
cultural background,
190 the guidelines were formulated against a background outlined by Forster J that included the following matters:191
(1) Indigenous Australians often do not understand English very well and that, even if they do understand the words, they may not understand the concepts which English phrases and sentences express;
(2) Concepts of time, number and distance are imperfectly understood, if at all, by Indigenous Australians;
(3) Most Indigenous Australians are basically courteous and polite and will answer questions by âwhite peopleâ, in particular persons in authority, in the way in which they think the questioner wants (referred to in the authorities as gratuitous concurrence); and
(4) Some Indigenous Australians find the standard caution âquite bewildering, even if they understand that they do not have to answer questions, because, if they do not have to answer questions, then why are the questions being asked?â
142
It may be seen that the guidelines were intended to address issues that are more likely to arise in the case of an Indigenous Australian from a traditional cultural background, than in the case of an Indigenous Australian who has been raised and educated in a modern, urban environment, and whose first (and perhaps only) language is English. It is noteworthy that Forster J remarked that much of what is said in the guidelines âapplies equally to the interrogation of migrants whether European or Asiaticâ.192 Further, in referring to the desirability of a âprisonerâs friendâ (see below), the examples identified by his Honour were predominantly persons who would be dealing with an Indigenous Australian from a traditional cultural background in a non-urban environment.193 In Gibson, Hall J, related the Anunga guidelines to the long-recognised âdifficulties that can arise when interviewing Aboriginal suspects whose first language is not Englishâ.194
190 Butler (No 1) (1991) 57 A Crim R 451 (Butler (No 1)) at 455.
191 Anunga (413 â 414).
192 Anunga (413).
193 Anunga (414).
194 Gibson [3].
[2024] WASC 517
FIANNACA J
Page 54
143
In essence, the guidelines include the following that may be relevant in the context of the accusedâs submissions in this case:
(1) It is desirable, where practicable, that a âprisonerâs friendâ (subsequently referred to as an âinterview friendâ) in whom the interviewee has confidence, and by whom he will feel supported, be present.195
(2) Great care should be taken in administering the caution when it is appropriate to do so. The interviewee should be asked to say what is meant by the caution, phrase by phrase, and the interview should not proceed until it is clear the interviewee has âapparent understanding of his right to remain silentâ.196
(3) Great care should be taken in formulating questions so that, so far as possible, the answer that is wanted or expected is not suggested in any way, either in the wording or the manner and tone of voice that is used.197
144
Forster J noted that the guidelines were designed to remove or obviate some of the disadvantages from which Indigenous Australia people suffer in their dealings with the police.198 His Honour said that the guidelines were not absolute rules, departure from which will necessarily lead to statements being excluded, but observed that police officers who departed from the guidelines without reason may find statements excluded.199
145
The Anunga guidelines are not law in Western Australia, but they do give a very good indication of what ordinarily would be regarded as a fair interrogation.200 As Hall J noted in Gibson, it is no doubt for this reason that they have been adopted in the Commissionerâs Orders and Procedures Manual (known as the COPS Manual).201 Further, breaches of the guidelines may be relevant to an assessment of the voluntariness of confessional evidence by an Indigenous Australian in this State.202
146
In Butler (No 1), Kearney J considered that a âprisonerâs friendâ should be someone who is aware of the respective rights and duties of
195 Anunga (414).
196 Anunga (415).
197 Anunga (415).
198 Anunga (415).
199 Anunga (415).
200 Gibson [162]; Webb (1994) 74 A Crim R 436, 438 (Malcolm CJ).
201 Gibson [162].
202 Gibson [162].
[2024] WASC 517
FIANNACA J
Page 55
the police and of the suspect, so that he or she can ensure the suspect is
aware of the possible consequences of the answers he gives. His Honour also agreed with the statement of Brennan J in Collins v R203 that a âprisonerâs friendâ is intended to âenhance the suspectâs ability to choose freely whether to speak or to be silentâ.204 There may be cases in which it is apparent that an accused does not understand how to exercise his right to silence.205 It has been recognised that the role of an interview friend includes the capacity to intervene on behalf of the interviewee to object to questions if he or she considers them to be unfair, and to remind the interviewee of his right to remain silent.206
147
As Hall J said in Gibson, whilst the presence of an interview friend is not required by law, it is a factor that may bear upon the question of voluntariness.207
Evidence of the accusedâs intellectual disability
Introduction
148
Before dealing with the accusedâs objections, I will outline the expert evidence in respect of his intellectual disability. None of the experts was called to give evidence at the hearing. The expert reports were received without objection, apart from specific objections made by the State to parts of Dr Wolffâs report. There was no issue with the expertise of any of the experts, except for the question in respect of Dr Wolffâs expertise in relation to the manner in which a person with an intellectual disability similar to that of the accused might function cognitively in a police interview. I will deal with that below. More generally, the qualification statement of each of the experts indicates that he or she is eminently qualified as a psychiatrist or a clinical neuropsychologist, as the case may be. However, it was acknowledged by counsel for the accused that, in determining the questions raised by the accusedâs application, it was for the court to determine what weight should be given to the findings and opinions expressed in the reports, having regard to all of the evidence and the courtâs own assessment of the accusedâs presentation and statements in the two interviews. Of course, the court was urged to have regard to the contents of the reports as providing a perspective through which the accusedâs presentation and answers in the interviews should be considered. However, in the
203 Collins v R (322).
204 Butler (No 1) (455).
205 See, for example, Njana (1998) 99 A Crim R 273, at 281.
206 The State of Western Australia v Cox [2008] WASC 287 [12], [64] (Martin CJ).
207 Gibson [148].
[2024] WASC 517
FIANNACA J
Page 56
absence of oral evidence to explain some of the findings and opinions,
their application to those issues may be speculative.
149
It is appropriate to note that Dr Wolffâs report in large part addressed specific questions that were put to her by the accusedâs legal representatives, the answers to which at times intruded on the courtâs role of making findings on ultimate issues raised by the application. Further, some opinions were speculative, which might be acceptable from a clinical perspective, but not in the context of making findings in legal proceedings. Those two issues were the basis of the Stateâs objection to parts of Dr Wolffâs report. It was acknowledged by counsel for the accused that any opinions that fell into those categories must be put to one side.
Dr Cabeleira
150
In April 2021, Dr Cindy Cabeleira, a clinical neuropsychologist contracted to the Department of Justice, provided a neuropsychological assessment report to the Perth Magistrates Court. The purpose of the report, dated 27 April 2021, was said by Dr Cabeleira to be âto assess [the accused] for possible cognitive impairment/disability and suitability for referral to the national Disability Insurance Agencyâ,208 in the context of a previous psychological assessment in 2015 indicating that he had cognitive and learning difficulties.209 The following matters are significant for present purposes.
151
Dr Cabeleira noted in respect of the accusedâs presentation that:210
(1) he presented as far younger than his chronological age (the accused was 25 years old at the time);
(2) he seemed quite indifferent and detached during the interview, and it was difficult to establish rapport with him;
(3) he tended to provide only very brief responses to questions and often needed to be prompted for further information; and
(4) he appeared to have difficulty recalling some aspects of his personal history and yawned frequently throughout his appointment.
208 Exhibit C, page 2.
209 Exhibit C, page 11.
210 Exhibit C, page 5.
[2024] WASC 517
FIANNACA J
Page 57
152
Dr Cabeleira referred to the accusedâs account of his cognitive functioning as follows:211
In the context of extensive questioning, he acknowledged longstanding issues with attention/concentration (i.e., being easily distracted) though felt this had worsened somewhat over the years. He added experiencing a slowing of his thought processes and always having had trouble with his short-term memory. Mr Smart also noted having word-finding difficulties and ongoing issues with reading, writing, spelling, navigational orientation and with planning and organisation. He denied having any problems with his numerical abilities or verbal comprehension and was unsure whether he had trouble with task completion or problem solving.
153
The accused was administered the Wechsler Adult Intelligence Scale â Fourth Edition test (WAIS-IV) to ascertain his level of intellectual functioning at the time of that assessment. Dr Cabeleira said:212
His FSIQ indicated that his overall level of general intellectual functioning fell in the Extremely Low range. His Verbal Comprehension Index (VCI) and Working Memory Index (WMI) were Extremely Low, while his Perceptual Reasoning Index (PRI) and Processing Speed Index (PSI) both fell within the Borderline range, His subtest performances across these Indices ranged from Extremely Low to Low Average.
154
Dr Cabeleira noted that the accusedâs âword reading, spelling and ability to correctly solve written calculationsâ could not be formally assessed because the accused did not attend a further appointment to complete the testing.213
155
In relation to the VCI, Dr Cabeleira reported that the accusedâs âabstract verbal reasoning, general knowledge and expressive vocabulary (i.e. ability to provide word definitions) were all weak (Borderline)â, and âphonemic and semantic generativity were also impaired (Extremely Low)â.214
156
The verbal test in relation to learning and memory focussed on a âword-list learning taskâ, in which his âoverall encoding of novel verbal material, was assessed as Low Average, although his delayed recall of the information was considered to be sound, at the high end of
211 Exhibit C, page 8.
212 Exhibit C, page 9. FSIQ is the Full Scale Intelligence Quotient.
213 Exhibit C, page 9.
214 Exhibit C, page 10.
[2024] WASC 517
FIANNACA J
Page 58
Average.
215 Dr Cabeleira was of the opinion that overall, the accusedâs performance on the memory tests was negatively affected by his âattentional/executive weaknessesâ.216
157
In relation to the assessment of the accusedâs executive abilities and behaviour, Dr Cabeleira noted that the number of executive function tasks that could be administered was limited due to time constraints, but nevertheless the accused demonstrated weaknesses across most of the tasks completed, including in respect of abstract verbal and non-verbal reasoning, âverbal generativityâ and simple problem solving.217 She also noted âsome suggestion of impulsivity and a lack of consequential thinkingâ.218
158
Dr Cabeleiraâs conclusions that I consider to be relevant for present purposes were as follows:219
Whilst noting the influence of cultural factors upon test administration and interpretation and despite the at least somewhat limited amount of testing that could be performed with Mr Smart, he mostly demonstrated areas of mild to marked cognitive impairment, with many of his test scores upon formal measures being of an Extremely Low to Low Average level. More specifically, he demonstrated significant impairments in his auditory working memory, language skills and most of his executive functions. Mild to moderate deficits in his attentional capacity (i.e., auditory attention span and in his ability to consistently focus his attentional resources), nonverbal/visuospatial skills, and learning and memory functions (the latter seeming largely as a result of his attentional/executive weaknesses) were also observed. Additionally, he demonstrated mild weaknesses in spatial working memory and variability/inefficiencies in visuomotor speed.
Overall Mr Smart appears to have a low level of general intellectual functioning. This appears consistent with his self-reported history of learning difficulties and thus, it is not unexpected that he has struggled with mainstream academic requirements and needed educational support to accommodate his learning weaknesses. Although his level of adaptive functioning could not be formally assessed, from his own self-report it appears that there are deficits in his adaptive functioning (probably more so than he is consciously aware of), with him likely functioning well below his same-aged peers. This would certainly be anticipated given his low level of intellectual functioning and other cognitive deficits demonstrated on the current assessment.
215 Exhibit C, page 10.
216 Exhibit C, page 10.
217 Exhibit C, page 10.
218 Exhibit C, page 10.
219 Exhibit C, pages 11 â 12.
[2024] WASC 517
FIANNACA J
Page 59
159
Dr Cabeleira was of the opinion that the accusedâs then current results were supportive of his eligibility for registration with National Disability Insurance Scheme (NDIS).
160
I note that, notwithstanding the accusedâs intellectual deficits, Dr Cabeleira was of the opinion that he demonstrated some insight into the factors that contributed to his offending up to that time, and what he needed to do to address those factors, although the insight was limited.220
Dr Darjee
161
Dr Darjeeâs report, dated 19 September 2023, addressed the accusedâs fitness to stand trial.
162
In my opinion, Dr Darjeeâs observations in respect of the accusedâs presentation paint a picture of someone who, despite the fact that he has an intellectual disability and appeared confused, was able to answer questions coherently and had an appreciation of the charge he is facing and the case against him. Dr Darjee reported (italics added):221
[The accused] was quiet, polite, and appropriate in manner, answering all questions put to him with brief but relevant answers. He was not unkempt or dishevelled, with well-groomed dark hair. He tended to stare quite blankly with little facial expression. He appeared like a rabbit in head lights, shocked, confused and coming to terms with his current situation.
His speech was logical, coherent, and not disorganised. There was no evidence of symptoms of mental illness such as delusions, hallucinations, disorganised thinking, marked mood disturbance or significant anxiety, agitation, or distress. If I took things slowly and checked with him, he was able to understand things, remember and repeat key points, and was able to give his account and point of view.
He said that he accepted that he had an intellectual disability, stating that he had problems with his learning, memory, and concentration. On brief informal testing he was orientated in time, place and person; he was able to repeat and then recall several minutes later a short list of words, he was poor at simple subtractions, and he struggled to list as many words as he could starting with the letter âbâ in a minute (in keeping with executive function problems)
He was able to tell me he had been charged with murder and understood that this involved him being accused of killing the victim. He was able
220 Exhibit C, page 7, page 13.
221 Exhibit B, page 3 [19] â [22].
[2024] WASC 517
FIANNACA J
Page 60
to give me a description of some of the evidence against him. He was able to explain the difference between pleading guilty and not guilty. He was able to give me a simple but adequate explanation of the roles of the judge, prosecution, and defence. When I asked him about what a jury was, he struggled with this, but after I explained this to him, he was able to understand this, and was able to recall the key points. He was also, after an explanation and some prompting, able to understand that he could challenge a juror. He told me that if he was concerned about anything or did not understand anything he would tell his lawyer. He stated he trusted his lawyer, understood what they told him, and was able to tell them his side of things.
163
Under the heading âOpinionâ, Dr Darjee noted that, diagnostically, the accused has âa mild to moderate intellectual disability, as set out in the neuropsychological assessment from 2021â.222 Dr Darjee also referred to the accusedâs childhood trauma and depression, but those matters are not relied on as informing the issues in this application.
164
Dr Darjee went on to provide the following opinions:223
As set out above, he has difficulties across a number of areas of cognitive functioning, but especially relating to his verbal working memory (ability to retain and work with words in his mind), language skills (ability to understand and express himself) and executive function (ability to attend to things, organise his thinking and behaviour, and plan). He also has less serious, but still significant problems with attention, nonverbal skills, learning and memory more generally. These are all of potential relevance to his ability to understand, follow and participate in any hearing or trial.
However, in my view, despite these cognitive limitations, he is fit to stand trial. He is able to (1) understand the nature of the charges; (2) enter a plea to the charge and to exercise the right to challenge jurors or the jury; (3) understand the nature of the trial (being an inquiry as to whether he committed the offence); (4) follow the course of the trial; (5) understand the substantial effect of any prosecution evidence; and (6) instruct his lawyers.
The only area where I had concerns was his ability to follow the course of the trial. But with some simple measures, in my view, he will be able to follow things in court adequately. These measures include regularly explaining to him what has been going on and checking his understanding, breaks so he does not become overwhelmed by the amount of information, and if possible shorter periods in court to allow the preceding to occur. As long as the Court takes his cognitive limitations into account and makes what appear to me to be simple and
222 Exhibit B, page 3 [23].
223 Exhibit B, pages 3 â 4 [24] â [26].
[2024] WASC 517
FIANNACA J
Page 61
reasonable adjustments, he will be able to follow and adequately participate in any hearing or trial.
165
While the measures referred to in the last quoted paragraph related to the conduct of the accusedâs criminal trial, they might be considered as being relevant also to the way in which an interview might be conducted with the accused, with some qualifications. First, the interviews that were conducted with the accused occurred nearly one year before the psychiatric assessment. Secondly, the interviews were of relatively short duration compared to the expected length of the trial and the duration of sessions each day of the trial. Thirdly, some of the evidence that will be given at the trial (especially the scientific evidence), the judgeâs directions and counselâs addresses will be verbally more complex than any of the questioning that occurred during the interviews, in which the accused was essentially asked for his account and was presented with some physical evidence and the statements of other witnesses to test his account.
166
In my opinion, the most significant aspects of Dr Darjeeâs report are his findings in respect of the accusedâs capacities necessary to determine his fitness to stand trial. The accusedâs functioning in respect of those capacities can be related to some aspects of his functioning during the police interviews, which have been raised as issues in this application.
Dr Wolff
167
Dr Wolffâs qualification statement refers to significant research in various areas of neurocognitive functioning and development, both in Australia and in the United States. She also has experience in clinical neurodevelopmental assessments. In addition, she previously obtained a Bachelor of Laws from the University of Western Australia and a Graduate Diploma in Legal Practice from the Australian National University. However, the qualification statement does not refer to any specific research into the impact of intellectual disability upon a personâs cognitive functioning in the context of a police interview. In particular, there is no evidence as to any previous experience by Dr Wolff in viewing police interviews with persons with an intellectual disability, or any comparison of such interviews with interviews conducted with persons who do not have an intellectual disability. However, in the body of her report, in articulating various propositions concerning potential problems for persons with intellectual disabilities in police interviews, Dr Wolff supports the propositions by referring to various textbooks and articles in professional journals that evidently
[2024] WASC 517
FIANNACA J
Page 62
deal with research in that area, and are clearly relevant.
224 I am satisfied that Dr Wolffâs research on the neuropsychological issues relevant to this application has been extensive, and that, when combined with her expertise in clinical neuropsychology more generally, Dr Wolff is qualified to give expert evidence about those issues in the form of general propositions.
168
However, in the absence of any evidence as to Dr Wolffâs own research or experience in viewing video recorded interviews with suspects who have an intellectual disability (which includes a wide spectrum of cognitive functioning), the weight to be given to Dr Wolffâs opinions specific to this case is a different matter. To the extent that Dr Wolffâs opinions concern potential impairments to the accusedâs understanding or cognitive functioning in the interviews conducted with him in this case, it has been necessary for me to make my own assessment of those interviews, including the manner in which the police questioned him and the manner in which he responded, in order to determine what weight I should give to those opinions. That approach is reflected in what follows.
169
Dr Wolff interviewed the accused and prepared a report at the request of the accusedâs legal representatives. The interview took place on 5 June 2024, from 2.00 pm to 2.35 pm. In arriving at her opinions, Dr Wolff also relied on the neuropsychological assessment that had been done by Dr Cabeleira in 2021.
170
In respect of her interview with the accused, Dr Wolff noted that the accused âreported that he understood the purpose of the interview and consented to participateâ.225 She said that rapport was established easily. Dr Wolff noted that the accused appeared to have some stereotyped repetitive behaviours, including scratching his eyes and
224 It is not necessary to recite the learned works or research, but the topics include âCriminal justice decisions and people with intellectual disabilitiesâ, âDecision making by individuals with intellectual and developmental disabilities: Integrating research into practiceâ, âThe predictive power of intelligence: Miranda abilities of individuals with intellectual disabilityâ (Miranda being a reference to the standard caution administered by police in the United States), âExperiences of people with intellectual disabilities encountering law enforcement officials as the suspects of crimeâ, âFoetal alcohol spectrum disorder and Investigative interviewing: A systematic review highlighting clinical and legal implications and recommendationsâ, â Interviewersâ approaches to questioning vulnerable child witnesses: The influences of developmental level versus intellectual disability statusâ, âProfessionalsâ views on how to conduct investigative interviews with adults with limited expressive languageâ, and âSuggestibility and confabulation among individuals with Fetal Alcohol Spectrum Disorder: A review for criminal justice, forensic mental health, and legal interviewersâ.
225 Exhibit A, page 3 [1].
[2024] WASC 517
FIANNACA J
Page 63
disinhibited laughing.
226 However, she considered that he appeared to engage with all questions to the best of his ability.227
171
In relation to the accusedâs use of language during the interview, Dr Wolff said:228
His expressive language was objectively impaired, and he was able to only produce single word responses (yes or no) to most questions. He could produce longer responses to some questions, but these were superficial in quality and he could not provide details (e.g., describing how he previously cooked food for himself or managed finances). His receptive language was similarly poor, and he tended to respond âyeahâ or ânoâ out of context and for questions which did not require a yes/no answer.
172
I note that the accusedâs counsel pointed to some of the accusedâs answers of a similar nature in the police interviews, submitting that the fact they appeared to be out of context was indicative of a lack of understanding of the questions asked by the police.
173
Dr Wolff then explored the accusedâs understanding of his cognitive functioning:229
When asked to describe âintellectual disability,â he reported that he believes it means he is âslow to learn things,â and could not provide further detail. He denied having memory complaints, although later reported that he âcanât remember much.â He reported that he does have difficulty choosing the correct words to use in conversation, keeping up with fast-paced discussion, and conveying his intended meaning. He responded âyesâ to questions regarding whether conversations and interviews are too fast for him, but could not demonstrate how he would convey this difficulty to others. With role play, he learned how to ask the interviewer to slow down and say he did not understand. However, he could not replicate this learning later in the interview, and also acknowledged that he felt embarrassed when conveying this information (i.e., reluctance to state he did not understand).
174
In my opinion, the accusedâs inability to elaborate on what his intellectual disability entails, which was evident also in his first interview with the police, does not bear upon the assessment I need to make about his capacity to understand questions and provide meaningful answers during the police interviews in respect of events that had occurred recently. The question asked of the accused by
226 Exhibit A, page 3 [1].
227 Exhibit A, page 3 [1].
228 Exhibit A, page 3 [2].
229 Exhibit A, page 3 [3].
[2024] WASC 517
FIANNACA J
Page 64
Dr
Wolff concerning his intellectual disability requires a level of analysis, and perhaps abstraction, that is not inherent in questions concerning what happened, or when it happened, or requiring a description of clothing or other objects. Further, it may be accepted that the accusedâs affirmative answers to Dr Wolff in respect of whether conversations or interviews are too fast for him suggest that there is a need for an interviewer to exercise caution and moderate the pace at which questions are asked of him. However, the accusedâs answers to Dr Wolff were to a general question; they do not say anything about whether the police interviews were conducted at a pace that was difficult for him. That needs to be assessed by careful consideration of the content of the video records of interview.
175
As to the accusedâs expressed embarrassment about saying he did not understand a question, it is not possible to determine whether that embarrassment was caused by the particular circumstances of his interview with Dr Wolff, or whether he intended it as a general statement. There was at least one passage in the second interview with the police, set out at [84] above, where the accused appeared to seek clarification from the interviewing officer when it seems he did not fully understand the officerâs question. That question was about whether the police had asked the accused any questions during a break in the interview. The fact that the accused sought clarification of the officerâs question demonstrated that he was prepared, at least at that point in time, to indicate he did not understand the question, or at least that he was uncertain about it.
176
Dr Wolff sought to ascertain the accusedâs understanding of the right to silence. She reported:230
When asked to explain the right to remain silent in his own words, he responded that it means âthe right to be silent.â When asked in simplified terms to demonstrate what he might do if he wanted to exercise that right, he responded âyeah.â With role play, he learned how to say âno commentâ in response to a practice question he did not want to answer. However, when role play was repeated 20 minutes later, he could not remember what to say and even with repetition could not produce âno comment.â He found the role play confusing, and could not learn from teaching. This pattern is typical of individuals with cognitive and language impairment who are unable to understand abstract concepts and do not benefit from repetitive practice of problem-solving tasks.
230 Exhibit A, page 3 [4]. The syntax in the quote and following quotes, including the placement of quotation marks, is as used by Dr Wolff in her report.
[2024] WASC 517
FIANNACA J
Page 65
177
With respect, the last sentence in the foregoing paragraph highlights the difficulty with applying Dr Wolffâs findings to an assessment of the issues the court needs to determine in respect of the video recorded interviews. Dr Wolffâs approach was further highlighted later in her report, when expressing her opinions. She stated:231
A person with an intellectual disability is unlikely to be able to understand the abstract concept of the right to silence, and the prohibition against any adverse inference that comes with the exercise of that right.
178
One might ask whether such a person would even consider the possibility of an adverse inference being drawn from remaining silent. However, the question is not whether the accused understood the abstract concept of the right to silence, but whether he understood during the interviews that he did not have to answer questions.232 As I will discuss later, it was perhaps unhelpful for the interviewing officer to suggest a preference for the accused to say âno commentâ if he did not wish to answer questions, but that was what the accused had decided he would say, in any event, presumably based on legal advice (an inference that may be drawn, given that he had spoken with a lawyer). In my opinion, the fact that the accused had to âlearnâ to say âno commentâ during his interview with Dr Wolff, nearly 18 months after he had participated in the police interviews, does not detract from his obvious awareness at the time of the police interviews (without prompting from the police) that this was a form of words he could use to convey that he did not wish to answer any particular question. The question of whether the accused understood, in each of the police interviews, that he did not have to answer questions must be determined having regard to the whole exchange in which the interviewing officer sought to ensure that the accused had that understanding.
179
Dr Wolff reported that the accused could remember being interviewed by police, but could not indicate when.233 Dr Wolff then stated:
When asked whether he remembered saying âno commentâ to the interviewers, he indicated he felt he âhad to ârespondâ as proof he had nothing to do with it.â When asked to provide any reason why he might not want to answer questions, he responded, âno,â suggesting a
231 Exhibit A, page 4 [11].
232 In oral submissions, counsel for the accused acknowledged that an understanding of the abstract concept to which Dr Wolff referred is not a requirement of the law in determining voluntariness: ts 91 â 92.
233 Exhibit A, page 3 [5].
[2024] WASC 517
FIANNACA J
Page 66
foundational lack of rational understanding regarding decision-making about exercising the right to silence. He also could not differentiate, via role play, when one might generally exercise the right to silence as opposed to answering general identification questions (e.g., name and date of birth).
180
As the details of the role play referred to by Dr Wolff are not provided, it is not clear what it involved or what assumption was made about âwhen one would generally exercise the right to silenceâ. The suggestion appears to be that the right would be exercised in respect of any questions other than âidentification questionsâ. If that was the assumption, it is not an accurate reflection of the various circumstances in which a suspect may choose to answer questions, whether incriminating or not incriminating. Again, with respect, the issue appears to have been approached from a theoretical or abstract perspective.
181
As for the indication from the accused to Dr Wolff that he felt he âhad toâ respond, to prove that âhe had nothing to do with itâ, I note that the accused did not give evidence in the application. In those circumstances, I do not consider that I can place weight on that explanation in determining whether the accused answered questions voluntarily during the police interviews, for at least three reasons. First, as contained in Dr Wolffâs report, it is untested hearsay evidence. Secondly, given Dr Wolffâs findings in respect of the accusedâs deficits in learning and memory, it is difficult to assess the reliability of an explanation given by the accused nearly 18 months after the police interviews. Thirdly, there is an element of ambiguity to the explanation, as reported by Dr Wolff. The accusedâs description that he âfelt he had to respondâ does not necessarily correlate with a lack of understanding that he had a free choice whether or not to answer questions put by the police. The accused may have felt an imperative to give his account, in the exercise of a free choice to answer questions, because he believed it exculpated him, and he wanted the police to know that. In light of the three matters I have outlined, I do not consider that the accusedâs explanation, as reported by Dr Wolff, has probative value in determining whether the accused answered questions in the police interviews in the exercise of a free choice to do so.
182
Dr Wolff went on to deal with the accusedâs understanding of âlegal processesâ focussed mainly on the trial process. Her conclusions from her interview with the accused were, in essence, that he had a fundamental lack of understanding of such processes, and that although he would answer in the affirmative when asked if he understood
[2024] WASC 517
FIANNACA J
Page 67
particular concepts, he was not then able to provide explanations.
234 However, to the extent that those conclusions appear to suggest the accused might lack capacities relevant to his fitness to stand trial, they are at odds with the conclusions arrived at by Dr Darjee, referred to above. The present application is not concerned with the accusedâs fitness to stand trial, but as I indicated above, findings made by Dr Darjee about the accusedâs functioning in that context can be related to some aspects of his functioning during the police interviews.
183
Dr Wolff drew the following conclusions from her interview with the accused:235
Mr Smartâs presentation was one of cognitive and language impairment. Although he claimed to be independent with activities of daily living, which would query an intellectual disability, he could not describe how he performed any functional activities and indicated his mother previously did most of these for him. Irrespective of the question of severity of intellectual disability, Mr Smart presented with deficits in processing speed, learning and memory, and receptive and expressive language. His response style was well below his chronological age, and with a vocabulary at the level of a primary school student, although a standardised adaptive functioning questionnaire could not be administered due to his low level of comprehension. It was also evident from Mr Smartâs embarrassment when admitting that he did not know what a question meant or how to respond, that he is highly susceptible to confabulation, acquiescence, and suggestibility, and is socially and emotionally vulnerable.
184
In the absence of evidence from Dr Wolff explaining the final conclusion, it is not clear how the accusedâs embarrassment when admitting that he did not know what a question meant or how to respond makes it evident that he is highly susceptible to confabulation, acquiescence, or suggestibility. As the passages from the video recorded interviews set out above indicate, the accused gave the answers âDonât knowâ or âNot sureâ on numerous occasions during the interviews. Moreover, when on more than one occasion the accused was asked whether he was saying he was not sure or did not know because he actually was not sure or did not know, or whether it was because he did not want to say, the accused demonstrated an appreciation of the distinction and maintained that he was not sure or did not know. He also indicated at one stage that he thought the interviewing officer was engaging in âmind gamesâ. The accusedâs responses on those occasions were not consistent with the proposition
234 Exhibit A, page 4 [6] â [7].
235 Exhibit A, page 4 [8].
[2024] WASC 517
FIANNACA J
Page 68
that he is highly susceptible to confabulation, acquiescence or
suggestibility. He expressly rejected the suggestion that he was withholding information.
185
The opinion section of Dr Wolffâs report consists of answers to specific questions posed by the accusedâs lawyers and a summary that outlines some general propositions and concludes that âit is possible that [the accused] did not understand his legal rights or have the cognitive abilities to waive those rightsâ.236
186
Before turning to some of Dr Wolffâs responses to the questions posed by the accusedâs lawyers, I accept that the possibility referred to in Dr Wolffâs conclusion (cited at [183] above) must be given careful consideration because of the accusedâs intellectual deficits, as ascertained by the neuropsychological assessment conducted by Dr Cabeleira in 2021 and during the interview conducted by Dr Wolff. I also accept Dr Wolffâs general proposition that people with intellectual disabilities have several characteristics that make them more vulnerable in the criminal justice system, and that responses provided by individuals with cognitive and language impairments may be unreliable in interview.237
187
However, the question of whether the accusedâs answers were voluntary, and the further question of whether the issue of reliability provides a basis for discretionary exclusion in this case, must be determined by having regard to the contents of the video recorded interviews and any evidence concerning the dealings the police had with the accused before the interviews. The accusedâs responses and presentation in his interview with Dr Wolff nearly 18 months later, and Dr Wolffâs opinion based on her interview with the accused and the earlier neuropsychological assessment by Dr Cabeleira, are relevant to assessing the accusedâs responses and presentation in the police interviews, but they are not determinative of the issues I must decide. Further, in considering the potential adverse impact of an accusedâs intellectual deficits on the reliability of his answers in a police interview, it is necessary to have regard to the content of those answers. Concerns about suggestibility or confabulation, for instance, would be most acute when an accused has made admissions against interest. Even then, what the court must decide is not a theoretical question, but whether, as a matter of fact, having regard to all the circumstances, the
236 Exhibit A, page 11 [33].
237 Exhibit A, page 11 [32].
[2024] WASC 517
FIANNACA J
Page 69
reliability of the accused
âs answers is so impugned that the admission of the evidence would result in an unfair trial.
188
As I noted earlier, some of the opinions expressed by Dr Wolff intruded on the courtâs role of making findings on ultimate issues raised by the application. That was due in part to the formulation of the questions posed on behalf of the accused, which invited such opinions. While I have not relied on those opinions, it will be necessary to refer to some of them for context to explain my findings in respect of other aspects of Dr Wolffâs report.
189
Dr Wolff noted that the accused had disclosed to the interviewing officers that he had an intellectual disability. She then asserted that there had been no follow-up questions designed to understand the nature and extent of the intellectual disability, and âhow it might affect the accusedâs ability to comprehend the caution and investigative questionsâ.238 With respect, that is not entirely correct. As would appear from my outline of the first video recorded interview above, the interviewing officer, Detective Wade, did ask the accused how the disability affected him, to which the accused responded that he did not know.239 Although Detective Wade did not pursue that enquiry further, he did indicate to the accused that it was important he understood everything Detective Wade would go through, and that he should let Detective Wade know if there was anything he did not understand. There was then the exchange set out at [52] above, in which Detective Wade asked specific questions to ascertain the accusedâs understanding of the caution. In that exchange, when asked how many questions he needed to answer, the accused said, âNone.â He also said that, if he did not wish to answer a question, he would say âNo comment.â In my opinion, the line of questioning adopted by Detective Wade, which followed standard practice, was apt to enable him to ascertain whether, irrespective of any intellectual disability, the respondent understood that he was not obliged to answer questions, and that anything he said would be recorded and could be used in court in any proceedings against him.
190
Therefore, while I accept Dr Wolffâs opinion that some of the accusedâs answers during the exchange in respect of the caution seemed to simply repeat the last words he had heard (referred to by Dr Wolff as a ârecency effectâ),240 the interviewing officer did not leave it at that. He
238 Exhibit A, page 5 [13].
239 [48] above.
240 Exhibit A, page 5 [15].
[2024] WASC 517
FIANNACA J
Page 70
explored the accused
âs understanding further. In her report, Dr Wolff did not examine the significance of the accusedâs answers to those further questions. The same may be said about Dr Wolffâs comments in respect of the second interview, where she suggested that the accused demonstrated a lack of understanding of his rights when he said, âUh, I donât have to, uh, an â answer the questions. I â uh, what is it again?â241 This overlooks the fact that the accused was being asked at that stage to repeat in his own words the whole of the caution, which included the fact that anything said by the accused would be recorded and may be used in evidence. Detective Wade went on to explore the accusedâs understanding in further detail, which is not examined by Dr Wolff.
191
Dr Wolff referred to the fact that when, in the first interview, the accused said he would say âNo commentâ if he did not wish to answer a question, Detective Wade said: âExactly. No comment, um, instead of just sitting there quietly, weâd just prefer you to say âno commentâ or something like that.â Dr Wolff suggested that the accused may have interpreted âsomething like thatâ to mean âyesâ or ânoâ or any combination of other words.242 That is speculative. Having watched and listened to the interview, and having read the transcript of the interview, there is nothing from which I can discern any such confusion. It does not follow from the fact that the accused did not say âNo commentâ in response to any questions, that he was confused. The fact that he did not use those words is consistent with the accused having decided that he would answer questions in order to give his exculpatory account.
192
Even if, as Dr Wolff suggested later in her report, it is evident that the accused did not understand the conceptual meaning of âno commentâ,243 that is not the issue. The issue is whether he understood that he had a choice whether or not to answer questions. He indicated he would say âno commentâ if he did not want to answer a question. It was sufficient for him to understand that those words would convey his choice, irrespective of whether he understood the conceptual meaning of those words.
193
Dr Wolff went on to say (footnotes omitted):244
Yes/no-questions about understanding, such as âdo you understand?â, involve a response bias in favouring confirming responses. Throughout the interviews, there are instances where Mr Smart does answer
241 See [64] above.
242 Exhibit A, page 5 [16].
243 Exhibit A, page 6 [1].
244 Exhibit A, page 5 [18].
[2024] WASC 517
FIANNACA J
Page 71
affirmatively to the question of whether he has understood his rights, however this answer is a claim of understanding but does not provide any evidence of what was understood. The interviewers accept this confirmation at face value and proceed.
194
With respect, the assertion at the end of that paragraph is not correct. Detective Wade went on to ask a number of non-leading questions to ascertain the accusedâs understanding, as appears from the extracts to which I have referred. Even if the accusedâs affirmative answer to whether he understood his rights may have involved a âresponse bias in favouring confirming responsesâ, it was not accepted at face value. The question of whether he understood that he did not have to answer questions, and that the recording could be used in evidence, must be determined by having regard to the whole of the exchange on the subject in each interview.
195
Ultimately, Dr Wolffâs opinion could not (and did not) rise above suggesting the possibility that the accused did not understand his rights during the interviews.245 That possibility was raised in a context in which Dr Wolff assumed that a personâs proper appreciation of the right to silence requires an understanding of âthe adversarial nature of the interrogative context, the notion that answering questions may lead to self-incrimination, and that it may be in oneâs best interests to not make incriminatory statementsâ.246 These are not prerequisites at law to the issue of voluntariness. The law does not require that degree of specificity of understanding. What is necessary is for the accused to understand that they do not have to answer questions, and that any answers they give will be recorded and may be used in court proceedings.
196
In assessing the accusedâs responses in the police interviews, I have had regard to Dr Wolffâs comment, based on research, that individuals with intellectual disability may present as unimpaired due to their verbal spoken language, despite lacking understanding (known as the âfrontal lobe paradoxâ).247 That begs the question of how the individualâs level of understanding is to be ascertained. Nothing said by Dr Wolff detracts from the normal approach of having regard to the nature and complexity of the questions asked and considering whether the responses given are logically and meaningfully related to those questions.
245 Exhibit A, page 6 [20].
246 Exhibit A, page 6 [20].
247 Exhibit A, page 6 [2].
[2024] WASC 517
FIANNACA J
Page 72
197
Dr Wolff was asked whether she âcould conclude that any aspects of either interview are the result of gratuitous concurrenceâ.248 That is a matter that would be relevant to whether the video recorded interviews should be excluded in the exercise of discretion on the basis of unfairness. Quite properly, Dr Wolff did not answer the question directly, but she referred to some examples where it might be thought the accused answered in the affirmative âwhile not appearing to understand the questionâ.249 With respect, I do not agree that all of the examples referred to by Dr Wolff were instances where the accused appeared not to understand the question. In any event, there were many instances where the accused answered in the negative or by saying he was not sure, contrary to the suggestion of gratuitous concurrence or acquiescence, which Dr Wolff explained as follows (footnotes omitted):250
Gratuitous concurrence [is] often observed amongst Aboriginal Australians, being the cultural tendency for Aboriginal individuals to agree with questions to placate the interviewer. Acquiescence is the tendency to answer questions in the affirmative regardless of the content, and is also seen in individuals with cognitive or language difficulties. During police questioning, a person with an intellectual disability is more likely to answer questions in the affirmative irrespective of their content, and the possibility of giving socially desirable answers to please others.
198
Specific examples that negate any conclusion that the accused engaged in gratuitous concurrence or acquiescence may be found in the accusedâs responses to questions asking if he stabbed the deceased,251 to questions asking whether he was carrying a knife in an image from CCTV footage,252 and to questions about a person observed in CCTV footage.253 When the accused was shown a photograph of the fatal injury to the deceased, and was asked, âDid you do that?â, he answered, âNo. Definitely not.â254 He went on to say:255
Yeah, it wasnât me. I wouldnât do that. Yeah. Probably one of his mates or something. Someone [indistinct] or â I donât know.
248 Exhibit A, page 7.
249 Exhibit A, page 7 [8] â [9].
250 Exhibit A, page 7 [5].
251 PB 865.
252 PB 870.
253 PB 873.
254 PB 865.
255 PB 865.
[2024] WASC 517
FIANNACA J
Page 73
199
In another instance, the accused was shown an image from CCTV footage, which he agreed depicted him. He was asked what he had down the front of his shirt, to which he answered, âIâm not sure.â256 He said he did not remember putting anything down the front of his shirt. He said it could have been a pipe or something, but he did not know. When he was asked, âCould it be a knife?â, he said, âUh, no. Yeah, itâs probably just a pipe or something.â257 In the example involving the image from CCTV footage of a person he denied was him, the accused was asked a very direct, leading question: âThatâs you, isnât it?â258 He answered, âNo.â259
200
Dr Wolff also suggested that the accused would have difficulty describing experiences in a sequential and reliable way, and is at risk of âfilling the gapsâ to appease the interviewer.260 Apart from the examples to which I have referred above, there were many instances in the video records of interview in which the accused answered that he did not know or was not sure, contrary to any suggestion of âfilling the gapsâ. The answer in which he suggested the item under his shirt might be a pipe was not âfilling the gapsâ, but responding to the suggestion that it could be a knife, which he denied. Further, the accused was able to give an account of his activities in a sequential way. The question of whether that account was true or reliable, would be a matter for the trier of fact to determine. If raised at trial, the significance of his intellectual disability upon the reliability of his account would also be a matter for the trier of fact to determine.
201
In short, having regard to the matters I have outlined, the concerns raised by Dr Wolff about the possibility of acquiescence, gratuitous concurrence and filling the gaps do not rise to a level that bear upon the voluntariness of the accusedâs answers in the police interviews or the question of whether there is a risk that admitting the video records of interview would result in an unfair trial.
202
Two other matters that Dr Wolff raised as potentially affecting the accusedâs capacity to make a voluntary choice to answer questions and which may have led to confusion are the complexity of questions asked and the ârapidity of the interviewingâ, which Dr Wolff suggests was more evident in the video footage than the transcript.261 Dr Wolff did
256 PB 870.
257 PB 870.
258 PB 873.
259 PB 873.
260 Exhibit A, page 8 [17].
261 Exhibit A, page 8 [11] â [13].
[2024] WASC 517
FIANNACA J
Page 74
not identify any passages involving complex language
. While there were some instances in the video records of interview where it appeared the accused did not understand a question, the interviewing officer clarified what he meant. Having watched the video records of interview, I did not have the impression that the questioning proceeded at a rapid pace. Dr Wolff raised concerns about this particularly in the context of the parts of the interviews in which the accused was provided with his rights, suggesting there was âminimal pauseâ for the accused to process what was said or âexpress his understanding of the terminology or chargesâ.262 As I have already said, Detective Wade asked a number of questions to clarify the accusedâs understanding, particularly in respect of his right to silence. There is nothing about the process to suggest Detective Wade hurried the accused, or that the accused needed more time than he took to answer the questions.
203
Dr Wolff was asked in respect of the first interview whether she could comment on what the accused was responding to when he said. âYeah, I didnât want to, you know, do an interview.â263 It was accepted on the accusedâs behalf that this was not a matter for expert opinion. In any event, Dr Wolff quite properly said she could not comment on the accusedâs intention when he made that comment.264 However, she went on to refer to some aspects of the exchange in that part of the interview that may have resulted in confusion. She also raised the possibility that the accused had difficulty recalling his rights throughout both interviews.265 In my respectful opinion, that is speculative. As for the possibility of confusion, Dr Wolff relied in particular on the following statement by Detective Wade in the first interview, after the accused had said he had not wanted to do an interview: âIâm still going to ask you some questions, but itâs up to you, on your legal advice, as to whether you do answer them or not.â266 However, whether that affected the accusedâs understanding of his right to remain silent can be tested by what followed. Detective Wade sought to clarify the accusedâs understanding, during which the accused indicated his understanding that he did not have to answer any questions.
204
Dr Wolff was of the opinion that it was likely the accusedâs answers in which he said ânot sureâ and ânot really sureâ represented a lack of understanding and inability to respond accurately to abstract or
262 Exhibit A, page 8 [13].
263 Exhibit A, page 9.
264 Exhibit A, page 9 [18].
265 Exhibit A, page 9 [22].
266 Exhibit A, page 9 [20].
[2024] WASC 517
FIANNACA J
Page 75
direct questions.
267 With respect, I do not accept that opinion. Dr Wolffâs opinion was based on general matters known about the cognitive processing of persons with cognitive and language impairment,268 rather than on a careful analysis of the accusedâs responses by reference to the questions to which he was responding. Dr Wolff did not explain why a lack of understanding was a more likely explanation than a lack of memory or a desire by the accused not to disclose his memory. At best, Dr Wolffâs opinion raises a possibility that needs to be taken into account if it is contended by the prosecution, for instance, that it should be inferred the accused was concealing information because he knew the truth would incriminate him.
205
Finally, Dr Wolff said:269
Executive functions, being the higher thought processes of judgment, reasoning, planning, organising, adjusting to changing situational demands, and evaluating consequences of actions and decision, are important in regulating behaviour. These tend to be affected in intellectual disability. Individuals may be prone to impulsive decisions such as accepting or declining plea agreements and waiving rights, without understanding the consequences of such decisions. Mr Smartâs history suggests he has deficits of regulatory control and modulating his moods and actions. In complex situations, he may tend to act impulsively and be less likely to have insight into consequences of actions or decisions, including exercising his right to silence
206
I accept Dr Wolffâs elucidation of the potential impact of a personâs intellectual disability on their decision-making, including exercising the right to silence. However, that elucidation is in terms of possibilities, both as to what the person âmay be proneâ to do and their understanding. It is not an assertion that such persons are not able to understand the consequences of decisions and make choices about their rights, notwithstanding their disability. In the absence of any evidence from the accused about his thinking when he answered questions in both of the police interviews, it would be speculative to suggest that any of the factors referred to by Dr Wolff were at play in his case.
267 Exhibit A, page 10 [24].
268 Exhibit A, page 10 [25].
269 Exhibit A, page 10 [27].
[2024] WASC 517
FIANNACA J
Page 76
The accusedâs submissions
Overview
207
The accusedâs submissions in support of the grounds of the application addressed four broad factual categories:270
(1) The nature of the accusedâs disability;
(2) The accusedâs understanding of the right to silence, the caution and the âconcept and application of answering questions with âno commentââ, and whether he had a sufficient understanding of English for the purposes of s 138(2)(d) of the Criminal Investigation Act;
(3) The understanding (or lack of it) exhibited by the accused of questions during the two interviews, and whether his answers could be regarded as reliable, particularly on matters that will be important to the conduct of the trial. In this context, counsel also raised the issue of gratuitous concurrence; and
(4) The response of the interviewing officers to the accusedâs indication that he had an intellectual disability, including the sufficiency of any further enquiry made by them into the potential impact of the intellectual disability, and the pace at which the questioning proceeded.
208
In the course of outlining the accusedâs submissions below, I will provide some analysis and express my views about the merits of some of the submissions that will provide the foundations for my conclusions at the end of these reasons. Not all of what is set out in the analysis will be repeated in my conclusions.
The accusedâs intellectual disability
209
Counsel for the accused referred to Dr Cabeleiraâs report for details of her assessment of the accusedâs intellectual impairment and its impact on his executive functioning, which I have summarised above. He submitted that the nature of the disability goes directly to the core skills that a person needs to participate in a recorded interview with the police.271
270 ts 73.
271 ts 89.
[2024] WASC 517
FIANNACA J
Page 77
The accusedâs understanding of the right to silence, and whether he had sufficient understanding of the English language
210
In respect of the second broad factual category, counsel for the accused did not place significance on the role play in which the accused participated in his interview with Dr Wolff, but he submitted that Dr Wolffâs observations from that exercise provided a starting position for determining the accusedâs understanding of the caution, the right to silence and how he might exercise that right.272 Counsel submitted that, if the accusedâs understanding is to be judged by whether his answers in the interviews were responsive and logical, the interviews do not support a conclusion that they were.273 Counsel submitted that a number of answers given by the accused appear to be out of context, demonstrating a lack of understanding. This goes to the third of the broad factual categories.
211
In relation to the accusedâs answers to questions about whether he understood the caution, his counsel submitted that the exchange in the first interview demonstrated an inability by the accused to repeat the nature of the caution that had been explained to him.274 However, that assumes a need for an accused to be able to repeat the caution or articulate it in his own words, before it may be concluded that the accused took part in the interview voluntarily. That is not the test. The question is ultimately whether the accused demonstrated an understanding that he did not have to answer questions. The interviewing officer clarified the accusedâs understanding by specific questions. However, the accusedâs counsel submitted that, while the accusedâs âyesâ and ânoâ answers in the course of that clarification may indicate at face value that he understood he did not have to answer questions, those answers need to be considered in the context that elsewhere in the interview the accused used âyesâ or ânoâ âinappropriately or wrongly or to fill a void without having a proper comprehension of the question or the way in which his answer engage[d] with the questionâ.275 I will deal below with the basis of the latter part of counselâs submissions, but it is apt to note at this stage that I do not agree that the examples referred to by counsel support such an inference, either necessarily or on the balance of probabilities, when one has regard to the full context of the accusedâs answers and the follow-up questions asked by the interviewing officer.
272 ts 93.
273 ts 93.
274 ts 123.
275 ts 125.
[2024] WASC 517
FIANNACA J
Page 78
212
In his report, Dr Darjee said he explained to the accused that he was preparing the report for the accusedâs lawyer and the limits of confidentiality. He said that the accused âunderstood this and he consented to [Dr Darjee] undertaking the interview, examining relevant materials and preparing the report.â276 Similarly, Dr Wolff said in her report that the accused understood the purpose of the interview and consented to participate.277 On their face, those statements indicate an acceptance that, at the time of his interviews with those professionals, the accused had the intellectual capacity to understand relatively sophisticated concepts, such as the preparation of a psychiatric report, the purpose of an interview with a neuropsychologist, the giving of consent to the interview and the preparation of a report, and the limits of confidentiality. It might be thought that the concepts the accused was required to consider in that context were analogous to the concepts the accused needed to consider when he was cautioned by the police.
213
However, counsel for the accused submitted that these were very different processes compared to the process of being interviewed by police and understanding the caution. Counsel submitted the circumstances were not analogous at all, as the accused was consenting to a âcompletely different processâ in the psychiatric and psychological interviews. Further, counsel referred to the sort of questioning that is necessary to ensure an accused understands the caution, and submitted that âwe have no idea whether or not Dr Wolff or Dr Darjee went through that sort of process with [the accused] on issues of confidentiality and consent to procedures and the ways in which information [is] going to be usedâ.278 Counsel submitted that, on the other hand, there is an indication in Dr Wolffâs report of her interactions with the accused that support the conclusion that he is ânot well-adapted to what we know is the process that is required to be gone through and understood with respect to a record of interview.â279
214
In my view, there is a similarity, logically, between the capacity of the accused to understand and make an informed decision about the preliminary concepts raised in his interviews with Dr Darjee and Dr Wolff, to which I have referred, and his capacity to understand the caution and make an informed decision about his right to remain silent. Both scenarios required him to consider issues of consent, in other words whether he should agree to participate. Both required him to
276 Exhibit B, page 1 [2].
277 Exhibit A, page 3 [1]. See [169] above.
278 ts 143.
279 ts 144.
[2024] WASC 517
FIANNACA J
Page 79
consider the fact that the information he would provide would be used
elsewhere in relation to the criminal case. In my opinion, the differences between the two scenarios go to the weight that might be placed on the accusedâs capacity in the psychiatric and psychological interviews when considering his capacity in the police interview; they do not render that evidence irrelevant to the question of whether he understood the caution and had the capacity to exercise his right to silence during the police interview. It is evidence that informs the latter issues, noting that the accused has not given evidence about them.
215
The absence of detail about the extent of the questioning undertaken by Dr Darjee and Dr Wolff about the issues of consent and confidentiality is a consequence of the accusedâs legal representatives choosing to adduce the evidence in the form of reports without calling the experts to give evidence. That course was understandable, in all the circumstances, but it means that opinions expressed in the reports about the accusedâs understanding of the preliminary matters should be accepted at face value. In relation to counselâs submission about Dr Wolffâs interactions with the accused and what that might say about whether he was ânot well-adaptedâ to understanding the caution and being able to exercise his right of silence, I refer to my analysis of Dr Wolffâs evidence above.
The accusedâs understanding of questions during the interview; gratuitous concurrence
216
It was submitted on behalf of the accused that, while the accused did answer some open-ended questions, there were a âgreat numberâ of answers consistent with gratuitous concurrence.280 The examples referred to by counsel were also said to demonstrate answers that appear to be out of context, consistent with a lack of understanding. It must be remembered that the key issue is whether the accused answered questions, understanding that he had a choice whether or not to answer. If it is the case that he appears to be confused about matters of substance during the interview, that will be a matter for the trier of fact to take into account in determining what weight to give to the accusedâs answers. The same may be said about whether changes in the accusedâs answers from time to time, which his counsel submitted indicated a tendency to agree with the last thing said by the police on a particular matter to bring the questioning on that matter to a conclusion.
280 ts 94.
[2024] WASC 517
FIANNACA J
Page 80
217
Counsel submitted that when the interviewer would repeat an affirmative or negative answer given by the accused, this may have had the effect of suggesting that the officer did not believe the answer and may have been regarded by the accused as an invitation to change his answer, which the accused duly did. It was submitted that this was consistent with the accused taking the path of least resistance to bring the particular line of questioning to an end. With respect, those submissions are speculative. The accused did not give evidence in the proceedings as to his state of mind. I appreciate that the submissions in respect of his intellectual disability would suggest that any evidence given by the accused may have been beset by the same difficulties that are said to have arisen in the police interviews in respect of gratuitous concurrence and confusion, but that has not been tested. In the absence of evidence from the accused, the submissions made on his behalf require the drawing of inferences as to his cognitive processes during the interview.
218
Some of counselâs submissions relied on an impression of the tone adopted by the interviewing officer, or the manner in which the officer repeated the accusedâs affirmative or negative answers, which was said to be quizzical or demonstrative of surprise, inviting a reconsideration by the accused. As I indicated to counsel during the hearing, I did not have the same impression. Whether or not the officer sounded quizzical on some occasions, my overall impression was that the officer spoke in a manner that simply sought confirmation of the accusedâs answer or indicated that he was checking that the accused had understood the question. I accept that such an approach may carry with it the sense of an enquiry as to whether the accused is certain of his answer, and it may cause an interviewee to give further consideration to his answer. However, having viewed the video records of interview, I do not consider that the interviewing officerâs repetition of the accusedâs affirmative or negative answers as a question carried the implication that the accused should change his answer, or that there is anything in the accusedâs response to indicate that he interpreted the question in that way.
219
The course of questions and answers may be explained on the basis that the accused chose to give his account, which he believed would exculpate him, as I discussed in dealing with Dr Wolffâs evidence, and changes in his answers may be no more indicative of confusion or a lack of understanding than a correction of an initial answer, a change of mind, or elaboration, upon the police seeking clarification, where the initial answer may have been given without
[2024] WASC 517
FIANNACA J
Page 81
proper consideration by the accused
. In those circumstances, I do not consider that I can draw the inferences for which the accused contends on the balance of probabilities in respect of gratuitous concurrence or a lack of understanding by the accused because of limited facility with the English language, due to his intellectual impairment.
220
In any event, I do not accept that the examples referred to by the accusedâs counsel in submissions281 necessarily demonstrate gratuitous concurrence or a failure by the accused to appreciate that he could choose not to answer questions. I have dealt with a number of the examples above in analysing Dr Wolffâs opinions about these issues. During the course of counselâs submissions, I also identified reasons why, in my opinion, the examples referred to by counsel did not carry the implications attributed to them by him, in terms of the accusedâs preparedness to concur gratuitously or his lack of understanding of his right not to answer questions. Again, the tenor of what I said in the hearing is outlined in my analysis of Dr Wolffâs opinions.
221
Some lines of questioning referred to by the accusedâs counsel were in relation to whether the accused left his unit on a bicycle, the colour of the shirt worn by the person shown in CCTV footage,282 and whether the accused was right-handed or left-handed. In my opinion, the fact that the accusedâs answers changed to some extent in respect of those topics can be explained by the accused giving further consideration to his answers either because of what he could see in the CCTV images he was being shown or because he remembered additional details. Ultimately, it will be for the trier of fact to determine what to make of those exchanges, and whether the explanation is gratuitous concurrence or lack of understanding, as argued on behalf of the accused, or an explanation of the kind I have indicated is possible.
222
I note that in relation to the colour of the shirt worn by the person in the CCTV footage, the initial question of the accused was, âWhat do you call that?â, to which he answered, âNot green.â283 It was an answer to what description he would use. Detective Maclean then said, âYeahâ, which might be regarded as agreement with what the accused had just said, followed by âItâs like a weird green colour, I guess, but green. Yeah.â284 The accusedâs response, âYeahâ, is consistent with the accused agreeing that, while he would not call it âgreenâ, it could be described as
281 ts 95 â 119.
282 See [75] above.
283 See [75] above.
284 See [75] above.
[2024] WASC 517
FIANNACA J
Page 82
a
âweird green colourâ. This is an example of the need to have regard to context when considering whether an answer given by the accused indicates gratuitous concurrence. That context includes the fact that the accused said he was not sure if what the person in the image was carrying was a knife, or what shoes the person was wearing, and, when it was suggested to the accused that the person in the CCTV footage was him, the accused answered, âNo.â285
223
In relation to whether he is right-handed or left-handed, the accused initially said he was right-handed, but then went on to say he used both hands, including that he would throw a ball with his left hand, although he writes with his right hand. In my opinion, this does not demonstrate a lack of understanding by the accused because of some limited facility with the English language, nor does it demonstrate gratuitous concurrence. It would be open to a trier of fact to find that the accusedâs initial answer reflected the fact that he writes with his right hand, but that upon further reflection and exploration by the interviewing officer, he clarified that he uses both hands.
224
Those examples are sufficient to indicate the equivocal nature of most of the examples relied on by the accused in support of his submissions on the topics under this heading. That some other examples might suggest gratuitous concurrence, or a lack of understanding, does not vitiate voluntariness, if the evidence otherwise establishes that the accusedâs answers were voluntarily given. Nor does it support the contention that the reliability of the accusedâs answers on matters of substance is brought into question to such an extent as to justify the exclusion of the interviews on the basis of unfairness.
225
The examples to which I referred at [198] and [199] above, in dealing with Dr Wolffâs report, negate any conclusion that the accused engaged in gratuitous concurrence or acquiescence either generally or in relation to matters of substance.
226
The accusedâs counsel submitted that the accusedâs exchange with the police about âmind gamesâ in the first interview, referred to at [58] and [59] above, might indicate understanding by him at that point in time, but it did not detract from the accusedâs submission that there were multiple indications against understanding or that there were âpatterns of questioning which indicate a filling of the void in answers, which indicates against understanding of questions but also
285 See [76] and [199] above.
[2024] WASC 517
FIANNACA J
Page 83
understanding of the caution
â.286 In essence, the submission was that, to read into the exchange an understanding of the caution would be to ignore âall of the indicatorsâ that he did not understand the caution.287 It was submitted such an approach would be reading into the exchange a level of insight that was ânot demonstrated anywhere else over two and three-quarter hours of interviewsâ, and would involve âtrying to look for things that run contrary to that [other] materialâ.288 However, as I noted in discussion with counsel, it may be that the opposite is true, namely that the interpretation advanced on the accusedâs behalf in respect of various passages, namely that the accused lacked understanding either of the caution or the substance of what he was being asked, or both, ignores significant parts of the interviews in which the accused demonstrated understanding, including of the caution.
227
Nevertheless, counsel submitted that the exchange in which the accused referred to âmind gamesâ may indicate that âhe had at least a comprehension that there was some degree of stakes being high in this processâ or that he understood that he needed âto be careful in his answers in the context of failing to understand that he [did not] need to answerâ, but that, in either case, it would fall âvery short of the understanding of the caution that needs to be demonstrated to establish that his participation was voluntary or ultimately fairâ.289
The accused saying he did not want to do an interview
228
In respect of the accusedâs statement in the first interview that he did not want to do an interview, contained in the passage at [52] above, counsel for the accused submitted that this was one of the clearer things the accused said, indicating that he did not want to proceed with the interview. Counsel submitted that âthe fact he has misused a present and a past tense is of no great consequence thereâ (emphasis added).290 With respect, there is no evidence that the accused misused the tense; nor is there any obvious basis for inferring that is what occurred. On its face, the accused was saying that at some earlier time he did not want to do an interview. This was in the context of the accused having said that he had received legal advice and that, if he did not wish to answer any question, he would say, âNo commentâ. The accused was then told by
286 ts 123.
287 ts 126.
288 ts 126.
289 ts 127 â 128.
290 ts 133.
[2024] WASC 517
FIANNACA J
Page 84
the interviewing officer that he was still going to ask some questions,
but that it was up to the accused whether he answered them or not.291
229
Counsel for the accused submitted that the officerâs statement that he was still going to ask questions was a âconfusing approach for a person with an intellectual disability who had just said ⊠that he did not want to do the interviewâ, and that it was part of the grounds for discretionary exclusion of that interview on the basis of unfairness.292 It was submitted that the appropriate response from the police at that stage would have been to cease the interview and to bring in an interview friend.293 It was submitted that such a person would be someone who was aware of the accusedâs cognitive impairments and was able to communicate with him in a way that would allow the accused to express the desire not to be interviewed as a first step.294 This led to counsel in essence combining the submission that an interview friend was necessary or desirable with the submission that a qualified person should have been provided pursuant to s 138(2)(d).295
The benefit of an interview friend who might be a âqualified personâ
230
Counsel for the accused submitted that a qualified person would have â[taken] the time and care to determine whether a young Indigenous man with an intellectual disability completely and thoroughly understood the caution and the right to silence and how to exercise it.â296 Counsel also submitted that the qualified person could have sought breaks in the interview and tried to ascertain during such breaks whether the accused was âunderstanding the questioning or the proceedingsâ.297
231
There is no evidence that the accused was actually confused about his right not to answer questions, whether he should exercise that right, or how he could exercise that right. He did not give evidence. Further, I do not consider that the general propositions in Dr Wolffâs report concerning potential confusion in a person with an intellectual impairment provides a sufficient basis to infer that the accused may have been confused by the relevant exchange about the fact that he had a free choice as to whether he answered questions or not. The accusedâs
291 See [52] above.
292 ts 134.
293 ts 134.
294 ts 136.
295 ts 136.
296 ts 136 â 137.
297 ts 139.
[2024] WASC 517
FIANNACA J
Page 85
submissions were also of a very general nature
. They appeared to assume that the combination of the accusedâs Indigenous background, his youth, his level of education and his intellectual disability meant that only through a âqualified personâ could it be determined if the accused âcompletely and thoroughlyâ understood that he did not have to answer questions and how he could exercise the right to silence.298 The accused did not adduce any evidence as to the way in which such a person would approach the enquiry that would better allow that determination to be made.
232
The accusedâs responses during the exchanges with Detective Wade in respect of the caution in both interviews were not simply âyesâ or ânoâ answers. They demonstrated an understanding that he did not have to answer any questions, no matter how many questions he was asked, and that he could exercise his right not to answer questions by saying, âNo commentâ. Detective Wade indicated to the accused that the use of those words was an appropriate way to indicate he did not want to answer any question. I agree with the submission of counsel for the accused that it was not appropriate for Detective Wade to say that it was the preference of the interviewers that the accused say âNo commentâ or âsomething like thatâ instead of just sitting there quietly. A suspect who is being interviewed can choose to sit in silence. While it might lead to awkward silences, the interviewer can enquire at that point in time whether the suspect wishes to answer the question that has been asked. However, an affirmation that âNo commentâ is an appropriate way for the suspect to indicate that he does not wish to answer a question, when the suspect has said that is how he intends to exercise his right, is not improper. Having regard to the context of the exchange in this case, I do not accept the accusedâs submission that the officerâs comment amounted to a derogation from the caution.
233
Assessing each of the exchanges about the caution as a whole, I was not left with the impression that the combination of the accusedâs Indigenous background, his youth and his intellectual impairment, as assessed by Dr Cabeleira, Dr Darjee and Dr Wolff, prevented him from having, and demonstrating, an adequate understanding of his right to silence and the fact that he could exercise that right by using words such as âNo commentâ.
234
Importantly, I did not have the impression that the accused exhibited characteristics of the kind with which the Anunga guidelines
298 ts 136 â 137.
[2024] WASC 517
FIANNACA J
Page 86
were concerned, arising from a person being of Indigenous Australian
background. Any deficit in the accusedâs ability with the English language was said to be attributable to his intellectual disability, not the fact that he is from an Indigenous Australian background. Contrary to the circumstances of cases generally in which an interpreter has been considered necessary for an Indigenous accused during a police interview, the accused in this case does not speak any language other than English.
235
Further, although this will ultimately be a matter for the trier of fact, the accused did not strike me as someone who was intimidated by the police or particularly deferential, which are further potential characteristics of traditional Indigenous accused with which the Anunga guidelines are concerned. Whatever else might be made of the âmind gamesâ comment, it tended to militate against such characteristics.
236
Finally, I did not have the impression that the accused found the caution bewildering in either of the interviews. In the absence of evidence that he did, I would not make that finding as a basis for concluding that, in the absence of an interview friend, the State has failed to establish voluntariness or that the interviews should be excluded in the exercise of the fairness discretion.
Objection relying on s 138(2)(d) of the Criminal Investigation Act
237
It is convenient to deal next with the accusedâs submissions in respect of the ground of objection based on s 138(2)(d) of the Criminal Investigation Act, as it is also relevant to the accusedâs argument in respect of voluntariness.
238
The starting point in respect of this objection is the proper construction of s 138(2)(d). The relevant principles are set out at [138] â [140] above. It is necessary to consider the text of the provision in its context, including its objectively discerned statutory purpose. The provision should be construed in a manner that is consistent with the language and purpose of all the provisions of the statute.
[2024] WASC 517
FIANNACA J
Page 87
239
Before turning to the accusedâs submissions, I note that neither âinterpreterâ nor âother qualified personâ is defined in the Criminal Investigation Act.299 It is evident from the use of âotherâ, that âinterpreterâ is a specific category of qualified persons. Further, I think it is sufficiently clear from the text that the reference to âinterpreterâ is to an interpreter who has qualifications as such. The adjective âqualifiedâ in âqualified personâ may denote either that the person has a formal qualification or that the person is qualified to do something in the sense of having relevant knowledge and competence to do it. In that context, while a person may not be a qualified interpreter, they may have sufficient knowledge and competence in spoken English as well as the suspectâs first language to be able to interpret for them.
240
It is also apt to note that the provision is concerned with âspoken Englishâ. In the case of a person who is deaf, English may be the only language that they read and write, but the person may be unable to understand spoken English or to speak it sufficiently, thus requiring an interpreter in sign language. That is a situation encompassed by the words âfor any reasonâ in the phrase âif he or she is for any reason unable to understand or communicate in spoken English sufficientlyâ.
241
The essence of the accusedâs argument is that, adopting a plain meaning interpretation of the text of s 138(2)(d), the section is not confined in its application to circumstances in which the suspectâs first language is not English. It was submitted that this follows from the words âfor any reasonâ in the phrase to which I referred in the preceding paragraph. It was submitted that the section can apply to a suspect who is unable to understand or communicate sufficiently in spoken English because of an intellectual disability.300 Counsel for the accused submitted that the âsufficiencyâ of understanding and communication with which s 138(2)(d) is concerned must be assessed in the context of the subject matter to which s 138(2)(d) relates, namely the interviewing of a suspect by the police.301 There must be a sufficiency of understanding and ability to communicate by the suspect in respect of matters such as the caution and the exercise of the right to silence, as well as the factual matters about which he is to be interviewed.
299 The term âqualified personâ is also used in pt 9 of the Criminal Investigation Act, which is concerned with forensic procedures. There are procedures that may be conducted by a qualified person. In that context, âqualified personâ is defined in s 73 as follows: âqualified personâ, in relation to a forensic procedure, means a person who is qualified under the regulations to do the procedureâ. Self-evidently this does not apply to s 138(2)(d).
300 ts 154 â 157.
301 ts 160.
[2024] WASC 517
FIANNACA J
Page 88
242
I note that in the present case, the issue with understanding and communication identified by the accused only arose, if at all, when he told the police that he had an intellectual disability. If the accusedâs submissions about the application of s 138(2)(d) are correct, and if it was then apparent that the accused was not able to understand or communicate sufficiently in spoken English, it would have been necessary for the interviewing officers to cease the interview until a qualified person was available.
243
If s 138(2)(d) applies in the case of a person with an intellectual disability who cannot understand or communicate sufficiently in English, even though their only language is English, who would be a âqualified personâ for the purposes of the provision? It was submitted by counsel for the accused that, in such circumstances, a qualified person may be an expert with specific clinical understanding of intellectual impairment, who is âsuitably qualifiedâ to understand the limitations to understanding and communication that might result from such impairment, and who has explanatory skills to enable the disabled person to achieve a better understanding of complex concepts and be able to communicate sufficiently their choices or intentions.302 As I outlined earlier in these reasons, when dealing with the accusedâs submissions in respect of the provision of a qualified person as an interview friend, it was submitted that a suitably qualified person would have been someone with a basic understanding of the accusedâs intellectual disability, who would have been able to âtake the time and care to determine whether a young Indigenous man with an intellectual disability completely and thoroughly understood the caution and the right to silence and how to exercise itâ.303
244
Counsel for the accused did not identify any particular expert or experts who might have met the characteristics he identified, except that he suggested the sort of process undertaken by Dr Wolff in getting the accused to understand the use of the words âNo commentâ to exercise his right to silence may give an indication of the level of clinical understanding required and the approach that might be taken, which would not necessarily amount to âhaving to teach or interpret English to the [suspect]â.304
245
Assuming the âqualified personâ could assist to enable the accused to better understand the caution and how he might exercise his right not
302 ts 158.
303 ts 136.
304 ts 158.
[2024] WASC 517
FIANNACA J
Page 89
to answer questions, it is difficult to envisage how the person could be
utilised during the interview beyond the caution. If an accusedâs intellectual impairment is such as to seriously impinge upon their ability to understand or communicate in English, there may well be questions about their capacity to participate in an interview at all. If the impairment is of a lesser kind that limits the level of sophistication of the accusedâs command of the English language, then it would be expected that any lack of understanding or ability to communicate would become apparent during the course of the interview. Such a limitation would not necessarily mean the suspect is not able to understand or communicate sufficiently in the English language. It means they may not be able to understand or communicate in sophisticated language. It is not uncommon for police interviewers to adjust the level of sophistication of the language used according to the suspect being interviewed.
246
If one assumes that a qualified person, as envisaged by counsel for the accused, had been made available to the accused in this case, their role would be to assist in understanding and communication. It would not be to speculate about what the accused wished to do, or to provide him with advice. If the accused did not understand a question and said so, the obligation would have been on the interviewer to explain or ask the question in a different way to enable the accused to understand. If the qualified person sought to explain it in a different way that did not accord with the intent of the interviewing officer, how would that tension be resolved? If the accused answered in short affirmative or negative answers, without indicating he did not understand a question, on what basis could a qualified person intervene to âassistâ with understanding or communication? As the State submitted, there was a way for the interviewing police to assess what the accused understood, without having to ask questions about his disability, namely by assessing his ability to respond appropriately to questions.305 In other words, they could assess his understanding by whether his answers were sensibly connected to the questions, irrespective of whether they were considered to be truthful or reliable.
247
The discussion in the preceding paragraph serves to highlight difficulties in the approach suggested by counsel for the accused in a case in which a suspectâs inability to understand or communicate sufficiently in spoken English is said to stem from an intellectual
305 Stateâs outline of submissions [34].
[2024] WASC 517
FIANNACA J
Page 90
disability
. Those difficulties impinge on the interpretation of s 138(2)(d) advanced by counsel for the accused.
248
In any event, as was acknowledged by counsel, even if I were to accept the interpretation advance on the accusedâs behalf, there remains the question of whether there is a sufficient evidential basis for the proposition that the accused did not have the relevant ability with the English language.
Voluntariness
249
Much of the accusedâs argument in respect of the issue of voluntariness has been dealt with above in dealing with issues concerning the accusedâs intellectual impairment, his understanding of the caution, the accused saying he did not want to do an interview, gratuitous concurrence, matters arising from the Anunga guidelines, and the application of s 138(2)(d). In relation to the latter, if the accused did not have a sufficient understanding of spoken English, and if, as a result, he did not understand that he had a right not to answer any questions, then it could not be said that his answers were given in the exercise of a free choice to speak or be silent.
250
In the absence of any evidence from the accused, the issue of voluntariness must be determined by an assessment of the way in which the interviews proceeded, the accusedâs answers and demeanour, and the conduct of the interviewing officers. Prima facie, the accusedâs answers in each of the interviews appear to have been made voluntarily, in that he said in each interview that he understood he did not have to answer any questions, and at the end of each interview he acknowledged that he had not been threatened by the police, and that the police had not made any promises or offered any inducements to him to participate in the interview. The accusedâs submissions require the drawing of inferences from all the circumstances about his state of mind, particularly his lack of understanding of the caution and his capacity to exercise his rights. The circumstances include the accusedâs intellectual disability and the expertsâ assessments, which I have dealt with, the fact that the police did not make available a qualified person or an interview friend, and the fact that the accused indicated he had not wanted to participate in an interview. The accused asks the court to infer that he would not have made any admissions at all if his rights had been explained to him by someone with some understanding of his
[2024] WASC 517
FIANNACA J
Page 91
disability and cognitive limitations, who would also have equipped him
with effective means to exercise his right to silence.306
251
In the accusedâs submission, the court can infer that the circumstances of the first interview that cast doubt on its voluntariness continued to operate on the accusedâs mind during the second interview. In summary, the accused submits that the court cannot be satisfied on the balance of probabilities that the he spoke in the knowledge that he had a free choice to speak or remain silent.
Discretionary exclusion on the basis of unfairness
252
In relation to the final objection, the accused submitted that admitting into evidence all the admissions or implied admissions allegedly made by him in both interviews would be unfair and should be excluded in the exercise of discretion by the court for that reason. The admissions are essentially: (a) the accused admitting that he was the person depicted in some of the CCTV footage, placing him in physical proximity to the premises where the deceased was killed, at a time that was proximate to when the deceased was killed; and (b) the accused admitting that he was at the Unit at the same time as the deceased on the day he was killed. By âimplied admissionsâ, I am referring to aspects of the accusedâs accounts to the police that are alleged by the State to be lies of a kind that evinced a consciousness of guilt in respect of the murder of the deceased. They are the accusedâs account that he was at Yagan Square, and his initial denials that he was at the Unit at the same time as the deceased on the day the deceased was killed.
253
The accusedâs submissions in respect of discretionary exclusion on the basis of unfairness relied on the same factors that go to the question of voluntariness, namely the accusedâs vulnerability by virtue of his age, Indigenous background, level of education and intellectual disability. Counsel for the accused submitted that, because of those factors, the accused was not on a level footing with the police officers, who were persons in authority. It was submitted that, having regard to the power imbalance, the length of time over which the two interviews proceeded, and the circumstances in which they were conducted, the accusedâs answers could not be regarded as reliable, either in respect some of his direct admissions (in respect of which there was the potential problem of gratuitous concurrence), or as a basis for inferring a consciousness of guilt. Consequently, admitting the video records of
306 Accusedâs outline of submissions [89].
[2024] WASC 517
FIANNACA J
Page 92
interview into evidence would result in an unfair trial
. In respect of the use of alleged lies to infer a consciousness of guilt, it was submitted that the unfairness is exacerbated by the accusedâs âlevel of confusion and his intellectual disability and the conduct of the interviewâ.307 I understood âthe conduct of the interviewâ to include the pace of the interview, the manner in which questions were asked, and the alleged failure of the police to check that the accused understood the caution and questions about the incident, or to clarify answers that appeared to be contradictory, all of which I have discussed above.
254
Counsel for the accused did not identify anything about any of the accusedâs answers specifically that would bring into question the reliability of his answers.308 Rather, the submission was that reliability was brought into question by the combination of factors to which I have referred.
255
I note that the accused also advanced as a basis for discretionary exclusion on the basis of unfairness, the fact that he was not again reminded in the second interview of his right to legal advice. Although the accused did not pursue the ground of objection based on s 138(2)(c) of the Criminal Investigation Act, he still submitted that the alleged failure by police to afford the accused a further opportunity to speak with a lawyer would result in an unfair trial if the second interview were admitted into evidence.
The Stateâs submissions
s 138(2)(d) of the Criminal Investigation Act
256
In relation to the first objection, the State submitted that, based on its text, context and purpose, s 138(2)(d) of the Criminal Investigation Act applies to suspects whose usual spoken language is not English, and who, because of that fact, are not able to understand or communicate in spoken English sufficiently. It submitted that the provision did not apply in this case because the accused does not fall into that category; in fact, his only language is English.309 The State further submitted that, even if s 138(2)(d) did apply in a situation in which a personâs ability to understand and communicate in spoken English is affected by an intellectual disability, rather than because they are usually non-English speakers, the evidence establishes that the accusedâs intellectual
307 ts 147 â 148.
308 ts 148.
309 Stateâs submissions (dated 4 March 2024) [36].
[2024] WASC 517
FIANNACA J
Page 93
disability does not render him incapable of sufficiently understanding
and communicating in spoken English.
257
Therefore, it was submitted, the police were not required to cease the interview to arrange for some âother qualified personâ to be present, when the accused indicated he had an intellectual disability, and there was no breach of s 138(2)(d) of the Criminal Investigation Act by their failure to do so. Accordingly, in the Stateâs submission, there is no basis for excluding the first or second interview under the Criminal Investigation Act.
258
In submitting that, by its text, context and purpose, s 138(2)(d) was intended to be confined to suspects who are non-English speakers, or for whom English is not their usual spoken language, the State referred to s 10 of the Criminal Investigation Act, which it submitted was a related provision. That section provides:
If under this Act an officer is required to inform a person about any matter and the person is for any reason unable to understand or communicate in spoken English sufficiently, the officer must, if it is practicable to do so in the circumstances, use an interpreter or other qualified person or other means to inform the person about the matter.
259
The provision applies broadly to any matter about which an officer is required to inform the person with whom they are dealing. It can be seen that the language of the provision, insofar as it identifies the linguistic impairment with which it is concerned, is the same as in s 137(3)(d) and s 138(2)(d).310 The difference is that s 10 places an obligation on the officer to use an interpreter or other qualified person, if it is practicable to do so in the circumstances, s 137(3)(d) creates a right in an arrested person to be assisted by an interpreter or other qualified person, and s 138(2)(d) creates a right in an arrested suspect not to be interviewed until the services of an interpreter or other qualified person are available. Notwithstanding those difference, there would appear to be no reason to differentiate in the construction of the words: âfor any reason unable to understand or communicate in spoken English sufficientlyâ.
260
Accordingly, the State sought to rely on extrinsic material, as provided for in s 19 of the Interpretation Act 1984 (WA), in respect of s 10 of the Criminal Investigation Act as an aid to the construction of s 138(2)(d). It referred to what was said by the Hon Giz Watson during discussion about provisions of the Criminal Investigation Bill 2005 in
310 See [113] and [114] above.
[2024] WASC 517
FIANNACA J
Page 94
the
Legislative Council Standing Committee on Legislation in respect of cl 10 of the Bill, which had been drafted by Parliamentary Counsel in part, it would seem, to address a concern that had been raised by the committee in respect of forensic procedures provided for in the Bill.311 The committee had ânoted the absence of a right to access an interpreter when forensic procedures are being undertaken and considered this right to be essential in order to explain the process to people from non[-]English speaking backgroundsâ.312 While the Honourable member went on to identify reservations about the qualifying words, âif it is practicable to do so in the circumstancesâ, she noted that the committeeâs report stated:313
Proposed new clause 10 seeks to address the Committeeâs concern with the undertaking of various forensic procedures when a person is from a non[-] English speaking background.
261
The Honourable member went on to note, more specifically, that the issue of understanding procedures was significant for Aboriginal people. She said:314
My information indicates that on many occasions Aboriginal people have not been fully aware of information that was provided to them because English is often their second, if not third, language.
262
The extract from Hansard may be considered by the court in the construction of s 10 of the Criminal Investigation Act and, by extension, in the construction of s 138(2)(d), because it includes part of âa report of a committee of ⊠either House of Parliament that was made to ⊠that House of Parliament before the time when the provision was enactedâ,315 or is ârelevant material in any official record of proceedings in either House of Parliamentâ.316 Counsel for the accused did not object to the court considering the extract.
263
The extrinsic material may be considered:317
(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into
311 Western Australia, Parliamentary Debates, Legislative Council (Committee), 24 October 2006 (Hon Giz Watson) (Hansard), pages 7409 â 7418.
312 Hansard, page 7415.
313 Hansard, page 7415.
314 Hansard, page 7415.
315 Interpretation Act 1984 (WA) s 19(2)(c).
316 Interpretation Act 1984 (WA) s 19(2)(h).
317 Interpretation Act 1984 (WA) s 19(1).
[2024] WASC 517
FIANNACA J
Page 95
account its context in the written law and the purpose or object underlying the written law; or
(b) to determine the meaning of the provision when â
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law leads to a result that is manifestly absurd or is unreasonable
264
The State submitted that the discussion and reference to the committeeâs report in the Legislative Council tended to confirm that the provisions in the Criminal Investigation Act concerning a lack of sufficiency in understanding or communicating in spoken English are concerned with ensuring that people for whom English is not their first or usual language will be assisted to understand and communicate. It was submitted this was the ordinary meaning conveyed by the text, considered in context, in particular the reference to âan interpreterâ. It was submitted that the meaning of âother qualified personâ should be construed as being affected by the reference to âan interpreterâ (that is, ejusdem generis with the latter), such that the person must be capable of assisting the suspect to understand in their usual language what is spoken by the officer in English, and to communicate to the officer in English what the suspect is saying in their usual language. In the Stateâs submission, that was the issue that s 10 was intended to address. It was not intended to deal with a situation where a suspectâs linguistic skills are limited by intellectual impairment and the assistance with communication and understanding is within the same language, namely English.
265
The State submitted that someone who can speak both English and the suspectâs language, but who is not a qualified interpreter, may fit the description of âother qualified personâ. I would note that someone who can both speak in English and communicate by sign language, but who is not a qualified interpreter in sign language, could also fit the description of âother qualified personâ for the purposes of assisting a hearing-impaired suspect to understand and communicate with the officer.
266
Counsel for the accused submitted that the content of the committee report referred to in the Legislative Council and the
[2024] WASC 517
FIANNACA J
Page 96
comments of the Honourable member reflected a particular matter of
concern in the context of forensic procedures, but that did not limit the ordinary meaning to be given to the provisions of s 10 or s 138(2)(d) if those provisions are capable of applying in a broader way. I respectfully agree. The extrinsic material provides some historical context for s 10, which may affect the interpretation of s 138(2)(d). However, the gamut of circumstances in which a person may lack understanding because of a lack of sufficiency in spoken English that may have been in contemplation in the drafting of s 10 and s 138(2)(d) may simply have not been discussed in committee or during debates, or mentioned in the second reading speech, which was not referred to in the hearing because there was nothing in the speech about the issues under consideration. An obvious example that goes beyond the examples referred to in the Legislative Counsel is the suspect whose only language is English, but who is not able to communicate in spoken English, in which case an interpreter or other qualified person may still be required.
267
I have otherwise dealt above in detail with the accusedâs submissions in respect of s 138(2)(d).
Voluntariness
268
The State submitted that the court should find on the balance of probabilities that any admissions or mixed statements by the accused in both interviews were voluntary in the relevant sense. The State submitted that it is clear from the accusedâs recitation of the most significant aspects of the caution back to the police, and from his manner of answering questions, that he understood that it was his choice whether to speak or be silent. In respect of the second interview, the State referred in particular to the following exchange, which is quoted in context above at [64]:
DET S/CON WADE: Exactly. All right. Whose choice is it to answer the question?
SMART: Uh, me.
269
The State submitted that the accused answered each of the questions in respect of the caution in his own words, and in a way that clearly demonstrated understanding of the caution in each interview.
270
Further, the State relied on the accusedâs answers at the end of each interview as evidence that he was not threatened or promised
[2024] WASC 517
FIANNACA J
Page 97
anything to induce him to answer questions, and that he had answered
of his own free will.
271
The State submitted that the accused did not answer any questions with âNo commentâ does not indicate that he did not understand he did not have to answer any questions. It referred to the fact that it was the accused who said first that he would say âNo commentâ if he did not want to answer questions. It submitted that the fact he did not give such answers subsequently simply indicates he made a choice to answer questions. The State also submitted that, while the accused did not say âNo commentâ, he did indicate to the officers when he did not know the answer, or was not sure, and also clarified on at least two occasions that when he said he did not know, that is what he meant, and not that he did not wish to say.
Whether police acted unfairly or improperly
272
As to whether the police should have asked further questions about the accusedâs intellectual disability, the State submitted that there was no requirement that the officers make an enquiry into the accusedâs intellectual disability, as the accused did not indicate that it affected him in any way that might affect his ability to understand his rights or to answer questions in the interview. The State submitted that the officers asked questions that were appropriate to enable them to form an assessment of the accusedâs ability to comprehend and understand the interview process and the questions being asked of him. There was no actual unfairness, therefore, which arose from their failure to make further enquiries of the accused.
273
The State also submitted that, if the officers had made further enquiries and were given to understand the full extent of the accusedâs disability, as disclosed in the expertsâ reports, what they would have understood was that they needed to speak to the accused slowly and check his understanding. The State submitted that this is what the police did.
Whether police breached the Anunga guidelines
274
The State submitted that the police did not breach the Anunga guidelines. It submitted that the present case is vastly different from Gibson, noting that the difficulties referred to in Anunga concerned interviews with Aboriginal suspects whose first language is not English, which was not an issue in the present case. The State submitted that the accusedâs background is relevant to whether and to
[2024] WASC 517
FIANNACA J
Page 98
what extent the
Anunga guidelines apply, to what extent they should have been followed by police, and whether any breach of the Anunga guidelines would render any admissions made in the interview involuntary and/or unfair.
275
The State submitted there was no need for an interview friend to be present, given that the accused did not have any difficulty communicating in English with the police officers, that he had notified his mother that he was in custody, and he had spoken to a lawyer prior to the commencement of the First Interview. The State submitted that, while the accused indicated he had an intellectual disability, he went on to demonstrate that he was able to understand and follow the course of the questioning.
Discretionary exclusion on the basis of unfairness
276
The State submitted that the accused had not established on the balance of probabilities that there is a substantial reason why the admissions should be excluded on the basis of unfairness in the exercise of the courtâs discretion.
277
The State submitted that the evidence does not establish the accusedâs contention that there is a âsignificant possibility that answers given by the accused are unreliable because he did not properly understand what he was being asked and could not communicate his own thoughts adequately in the verbal exchanges in the two interviews or gave answers simply in order to appear agreeableâ. The State submitted that:
(a) The evidence indicates that the accused did properly understand what he was being asked;
(b) There is no evidence that the accused could not communicate his own thoughts adequately in the two interviews; and
(c) An analysis of the accusedâs answers in the interview makes plain that he did not simply give answers to appear agreeable. The accused did not always provide positive answers to questions. He indicated that he couldnât tell police anything about the incident or the deceased being located at the house, maintained that he did not see the deceased alone on the day of the incident, responded in the negative when asked about being involved in any fights and advised police when he was not sure of the answer or couldnât remember. The accused responded to
[2024] WASC 517
FIANNACA J
Page 99
open ended as well as closed questions, indicative of his responses not simply being gratuitous concurrence. Further, the accused also disagreed with the officers on a number of occasions, including about whether he was the person depicted in some of the CCTV shown to him.318
278
In respect of other matters relied on by the accused as a basis for discretionary exclusion, the State submitted in essence that they relied on aspects of the other objections that have not been made out, as outlined above. In relation to the accusedâs reliance on the fact that he was not again afforded the right to speak with a lawyer prior to the second interview, the State submitted that there was no unfairness to the accused, as he was reminded of his rights, he had already spoken to a lawyer prior to the first interview, and it appears he continued to be aware of the advice he had been given. In particular, he again said that he would answer âNo commentâ if he did not wish to answer a question.
279
In summary, the State submitted that the accused has not established on the balance of probabilities any substantial reason why the admissions in the interviews should be excluded on the basis of unfairness in the exercise of the courtâs discretion.
Conclusions
280
In the course of the reasons above, I have expressed a number of opinions and conclusions that deal with the merits of the accusedâs submissions in respect of many of his propositions in support of the grounds of objections. I will not repeat them here, but they are part of the process of reasoning by which I have come to the final conclusions below, which were expressed orally when I gave my decision on the application.319
Voluntariness
281
I am satisfied on the balance of probabilities that the admissions made by the accused in both records of interview were made voluntarily.
282
More broadly, I am satisfied that the accused participated in the interviews voluntarily, in the sense that he answered questions in the exercise of a free choice to speak or be silent.
318 Stateâs Submissions (dated 4 March 2024) [76] â [77].
319 Subject to some editing here to correct infelicities of language and to improve clarity.
[2024] WASC 517
FIANNACA J
Page 100
283
I have arrived at that conclusion having regard to the exchange between the interviewing officer and the accused at the start of each of the video-recorded interviews. As I outlined above, in both interviews the interviewing officer explained the accusedâs rights to him and gave the customary caution. At the end of each of the interviews, when asked if had participated of his own free will, the accused answered in the affirmative. On each occasion he also answered in the negative when asked questions to determine if he had been induced into participating in the interview.
284
In respect of the introductory exchanges, the accused gave answers indicating that he understood his rights, in particular that he did not have to answer any questions if he did not wish to do so and that he could answer some questions and not answer other questions, according to what he chose to do. Having considered the accusedâs answers carefully, I am satisfied that he understood his rights and was able to articulate adequately the essence of the caution and the use that could be made of his answers when he was asked about those matters specifically.
285
In respect of the exchange at the end of each interview, the accused gave answers that ultimately made it clear he had not been threatened or offered any inducement to take part in the interview, and that he took part in the interview of his own choice. No evidence was adduced at the hearing to suggest that the accused had been threatened or induced to participate in the interviews, or that he had perceived any threat or inducement.
286
However, considering the matter from the perspective of whether the accusedâs participation in each interview truly involved an exercise of free choice, I am satisfied having regard to the whole of the interview in each case that it did.
287
As I have explained above, the accusedâs argument to the contrary relied in part on his intellectual disability and the fact that, in the first interview, he said that he âdidnât want to do an interviewâ. In context, I am satisfied that was a reference to a previous position he had taken or expressed. It would seem he had taken that position at some stage after he received legal advice. Nevertheless, it was submitted on behalf of the accused that his statement indicated he had made a choice that he did not wish to do an interview, and that his choice was undermined when the interviewing officer then told him that they were still going to ask him questions, and that it was up to him whether he answered them
[2024] WASC 517
FIANNACA J
Page 101
or not
. In essence, the accused asks the court to infer that the interviewing officerâs statements had that impact on the accused because of the accusedâs intellectual disability. I am not satisfied that such an inference should be drawn, for at least two reasons.
288
First, the accused did not give evidence, so there is no evidence of what he understood from what the interviewing officer said at that stage. There is no evidence, therefore, to contradict the accusedâs statements during the interview, which indicated that he understood he did not have to answer questions, even though the police were going to ask questions. Secondly, it is not obvious that the accused intended to convey that he did not want to participate in the first interview at the time it was being conducted, rather than to convey that it was an attitude he had held earlier.
289
As for the accusedâs intellectual disability, having considered the reports of Dr Darjee and Dr Wolff, and having carefully considered his answers and the way he engaged in the police interviews, I am satisfied that the accused had a sufficient understanding of the concepts discussed during the police interviews concerning his right not to answer questions, and he had a sufficient capacity to exercise that right.
290
I do not accept the accusedâs submission that the pace at which the interviews were conducted was such as to put him at a disadvantage, at least in terms of his capacity to make a free choice whether or not to answer questions.
291
As I have discussed above, the accused placed emphasis on the fact that he did not answer with the words âno commentâ at any stage, even though he had said that was what he would do if he did not want to answer questions. As I have noted, the accused referred to this as an indication that he was not truly capable of exercising that right during the interview. I am not satisfied that such an inference can be drawn. The fact that the accused did not answer âno commentâ is consistent with him choosing to answer questions. It does not lead to an inference that he believed he was obliged to answer questions, when he had said specifically that he understood he did not have to answer questions.
292
While is not necessary to consider why the accused would choose freely to answer questions, it is notable that his account overall amounted to a denial of any involvement in the stabbing of the deceased. The fact that he may not have been alert to the possibility that various answers he gave about his whereabouts and activities might
[2024] WASC 517
FIANNACA J
Page 102
be used to challenge the truthfulness of his account, or as evidence of
consciousness of guilt, does not mean that his answers were not voluntary. Persons who do not have an intellectual disability who provide an alibi that may ultimately be challenged by other evidence may also lack awareness of the potential consequences of their answers.
293
I note in this regard the exchange in which the accused mentioned âmind gamesâ and said to the police, âDo you want to play?â, which I discussed in some detail above. As I noted above, it showed an understanding of the distinction between not knowing the answer and not wanting to give a particular answer. It seemed to me from the manner in which the accused said the words, as appears on the video recording, that he was indicating to the officers that they were trying to catch him out in relation to the question of not knowing or not wanting to tell them what he knew. He pointed to the officer, and he made a gesture towards his own head with his finger. As I noted above, the impression I had was that the accused, at that point in time, was well-aware of the need to carefully consider the questions that had been put to him by the officers, and that he was mindful of the possibility that the questions he was being asked were intended to catch him out.
294
The impression I formed was that, while the accusedâs assessment of what was occurring may have been misconceived, he appreciated, nevertheless, the need to be careful in the words he chose and not to be influenced into giving an answer different to what he had already given. He maintained his position that he did not know.
295
As appears from the recitation of parts of the interviews above, that occurred on other occasions during both interviews when the accused was asked whether he did not know or was not sure, or whether he was simply not wanting to say. On each occasion, the accused maintained the answer he had given, usually that he did not know.
296
In summary I am satisfied, on the balance of probabilities, having regard to the way in which the interview was conducted and the answers given by the accused during both interviews, that he participated voluntarily.
Section 138(2)(d) of the Criminal Investigation Act
297
I turn next to the objection made under s 138(2)(d) of the Criminal Investigation Act.
[2024] WASC 517
FIANNACA J
Page 103
298
I have reservations about the argument put on behalf of the accused that the provision applies in the circumstances of a person whose language is English and who is able to speak the language, but whose comprehension may be affected adversely by intellectual disability.
299
In my view, there is force in the submissions made by the State in respect of the interpretation of s 138(2)(d), which then affects the application of s 138(3)(b). It seems to me that the provision is concerned with a personâs capacity to understand or communicate in spoken English sufficiently, in circumstances in which English is not their usual or preferred language, or where, if English is their first or only language, they are not able to speak it or understand it being spoken because they are hearing impaired, for instance.
300
However, it is not necessary for me to express any concluded view in relation to the application of the provision as submitted by the accused. That is because, in my view, it was abundantly clear during both interviews that the accused was able to understand and communicate in spoken English sufficiently. While his vocabulary may not be sophisticated, that is not an unusual circumstance for many people who come to be interviewed by the police.
301
When one has regard to the answers the accused gave to the questions that were asked of him, it appears to me that, overall, he understood the questions. Where there was some confusion, the police asked further questions to clarify that he understood what they were saying, and that they understood what he was saying.
302
For reasons I have expressed above, when dealing with the reports of Dr Darjee and Dr Wolff, I do not consider that their opinions in respect of the accusedâs intellectual functioning, particularly his verbal functioning, support the conclusion that he would not have a sufficient capacity to understand or communicate in spoken English in the context of an interview with the police. While both experts referred to some limitations in the accusedâs verbal functioning, it was tolerably clear to me from the police interviews that the accused understood the questions put to him, and he answered most questions in a coherent and logical manner. It is open to conclude that the accused did not always answer in that way, when there was some degree of confusion. However, it seems to me that such confusion is capable of being explained by either a less than attentive initial response by the accused, followed by a different answer after he had given the question proper attention, or a
[2024] WASC 517
FIANNACA J
Page 104
change of recollection by him upon a moment
âs reflection. Examples of that are where the accused used the words, âYepâ, âNup, donât knowâ, âDonât knowâ and âIâm not sureâ, as a regular form of answer, in short, rather than providing narrative answers to the questions that were asked by the interviewing officer. That said, the accused did give narrative answers from time to time. Some of his answers were also preceded with what might be regarded as verbal hesitation, such as âUmâ or âAhâ. Such verbal hesitations are not unusual within the general population.
303
It is also apt to note that, at times, the accused appeared to change his answer, for instance, from saying, âNupâ, to saying, âOh yeahâ. Counsel for the accused identified such examples as being indicative, potentially, of a lack of proper comprehension by the accused. In other words, the accused lacked a proper understanding of the question. It was also submitted that such answers may indicate that the accused lacked a sufficient ability to communicate. However, that is not the impression I formed. As I have said, those sorts of apparent changes in his answers from time to time could be explained by either a less than attentive initial response, or by a change of recollection. Of course, to the extent that such aspects of the interview might have significance in determining the meaning and reliability of the accusedâs answer in each case, it will be for the jury to make its own assessment about the potential explanation at trial.
304
In short, I am not satisfied that the criteria of s 138(2)(d) are met in a way that renders the interviews inadmissible because of a failure of the police to afford the accused the right under that provision.
Unfairness
305
I turn then to the question of whether the video records of interview should be excluded in the exercise of discretion on the basis of unfairness.
306
I am not satisfied on the balance of probabilities that it would be unfair to admit the interviews into evidence. Having given the matter careful consideration, I have concluded that, while the accusedâs intellectual disability is a relevant matter, it does not, in the circumstances, render the acceptance into evidence of his answers in the interviews unfair. That is, I am not satisfied that admitting the evidence would result in an unfair trial. In coming to that conclusion, I accept that, where an accused has an intellectual disability and has made that known to the police, particular care must be taken to ensure that the accused understands the concepts that are being explained to
[2024] WASC 517
FIANNACA J
Page 105
him, and in the manner that questions are asked, so as not to put the
accused at a disadvantage by way of confusion or undue influence. I am satisfied that the police took appropriate steps in this case to ensure the accused understood his rights and the caution, and they proceeded in a measured manner, clarifying questions and answers where the potential for confusion appeared.
307
I do not consider that the approach the police took in the interviews involved them taking advantage of the fact that the accused had an intellectual disability, in circumstances where he may have made a choice not to answer questions were it not for that situation.
308
In assessing the question of unfairness, I have also had regard to the accusedâs submission that he was not again reminded in the second interview of his right to legal advice. As I have said, the submission that was made in that regard initially, concerning s 138(2)(c) of the Criminal Investigation Act, was not pursued. However, as I understood the accusedâs argument, the alleged failure by police to afford the accused a further opportunity to speak with a lawyer was still advanced as a basis on which the court might find that the acceptance into evidence of the second interview would be unfair to the accused. The accused has the burden of satisfying the court that it would be unfair. I am not satisfied that it would be, in the circumstances of this case. The accused was told during the second interview that he always retained his rights and that he may exercise his rights at any time. The accused indicated that he understood that. As I have said, while I accept that his intellectual disability might have a bearing upon his choices in respect of matters of that kind, in particular his choice to proceed with the interview, it does not render the interview involuntary, and, in my view, it does not render the use of the interview in evidence unfair.
Interviews admissible
309
For the reasons I have given, I am satisfied that the accusedâs answers in both interviews were voluntary and that they should not be excluded on any of the grounds advanced by the accused. Therefore, the interviews will be admissible at trial.
[2024] WASC 517
FIANNACA J
Page 106
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JH
Associate to the Honourable Justice Fiannaca
24 APRIL 2025