THE STATE OF WESTERN AUSTRALIA -v- REDDINGTON [2026] WASC 163

[2026] WASC 163 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CRIMINAL CITATION : THE STATE OF WESTERN AUSTRALIA -v- REDDINGTON [No 5] [2026] WASC 163 CORAM : MCGRATH J HEARD : 2 FEBRUARY 2026 DELIVERED : 2 FEBRUARY 2026 PUBLISHED : 30 APRIL 2026 FILE NO/S : INS 18 of 2024 BETWEEN : THE STATE OF WESTERN AUSTRALIA Prosecution AND RAYMOND REDDINGTON Accused Catchwords: Criminal law - Wilful murder - Objection to electronic record of interview - Voluntariness - Probative value outweighed by prejudicial effect - Unfairness discretion - Public policy discretion Legislation: Nil -- 1 of 14 -- [2026] WASC 163 Page 2 Result: Electronic record of interview admissible Category: B Representation: Counsel: Prosecution : Mr B F Stanwix SC & Ms S L Jessup Accused : Mr J A Davies & Mr H P K Kopsen Solicitors: Prosecution : Director of Public Prosecutions (WA) Accused : Mr J A Davies Case(s) referred to in decision(s): Bunning v Cross (1978) 41 CLR 54 Cleland v The Queen (1982) 151 CLR 1 Collins v The Queen (1980) 31 ALR 257 EYO v The State of Western Australia [2019] WASCA 129 Kelly v The State of Western Australia [2017] WASCA 221 Luo v The Queen [2020] WASCA 184 McDermott v The King (1948) 76 CLR 501 R v Ireland (1970) 126 CLR 321 R v Lee (195) 82 CLR 133 R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 The State of Western Australia v Silich [2011] WASCA 135 Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396 Van der Meer v The Queen (1988) 62 ALJR 656 Wendo v The Queen (1963) 109 CLR 559 -- 2 of 14 -- [2026] WASC 163 MCGRATH J Page 3 MCGRATH J: Introduction 1 In 2023, the accused was charged that on 18 March 1986 he wilfully killed Mrs Sharon Fulton, his wife. The accused was convicted after a four-week trial in February 2026. On the eve of the commencement of the trial, counsel for the accused agitated a number of objections to the State's proposed evidence at trial. 2 Given that there was insufficient time to provide either oral or written judgment in respect to the applications to exclude evidence, I was only able to make rulings in respect to the respective applications to exclude the evidence and state that my reasons for doing so would be published at a later date. 3 The accused made application that the electronic record of interview (EROI) conducted with him on 7 August 2017 should be excluded. I held that the EROI was admissible. These are my reasons for so finding. The particulars of the application to exclude the EROI 4 The accused relies upon the following grounds in the application to exclude the EROI:1 1. An order that the evidence concerning the Electronic Record of Interview of the accused at Southport, Queensland dated 7 August 2017 be excluded from evidence as involuntary or alliteratively as unfair, in the exercise of the discretion. GROUNDS a. The accused's disclosed cognitive impairment: affected his capacity to make a free and informed choice, given the cumulative effect of medical factors (medication, hypotension, fatigue. b. Failure of Prosecution to investigate or vet the diagnosis of dementia: by reference to medical records, given the obligation of the Prosecution to establish voluntariness. c. The onus-shifting nature of the questioning, the accusatory and hypothetical questions put to a vulnerable accused. 1 Application to exclude evidence of electronic record of interview filed 9 January 2026. -- 3 of 14 -- [2026] WASC 163 MCGRATH J Page 4 d. The extensive and unreasonable period of time: with respect to which the accused was expected to accurately account for statements made years before hand and in any event beyond any reasonable time for accurate human recollection to accurately endure. e. Predatory nature of the interview: given the unfair, inordinate and unexplained delay between the making of the statements the subject of interrogation and the date of the interview, which could have taken place in the year prior. f. The persistent questioning without serious endeavour to ensure the provision of legal advice. g. The accused was deprived of fair notice: of the questioning or provided any opportunity to read, consider and refresh his recollection with respect to statements and events many years before. h. Reliability: The accused's age, health, compromise reliability. The jury cannot properly assess reliability statements made in these circumstances. i. Probative Value vs Prejudicial Effect: The EROI contains no direct admissions of culpability, but extensive interrogation of statements matters decades in the past, the answers to which are highly prejudicial but have no probative value on the ultimate issue. The prejudicial effect substantially outweighs any legitimate probative value. Applicable legal principles 5 I now turn to the applicable legal principles which the accused appears to rely upon in respect to excluding the EROI. I will outline the legal principles and then assess the contentions of the accused. Voluntariness 6 It is a fundamental requirement of the common law that, in order to be admissible, a confessional statement must be voluntary.2 Once the issue of voluntariness is raised, the prosecution has the onus of 2 R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 [50]; Kelly v The State of Western Australia [2017] WASCA 221 [34]. -- 4 of 14 -- [2026] WASC 163 MCGRATH J Page 5 establishing, on the balance of probabilities, that the confession was voluntary.3 7 A confession is voluntary if it has been made in the exercise of a free choice to speak or be silent.4 A confession will not be voluntary unless the evidence demonstrates that, on the balance of probabilities, the accused was capable of appreciating that they had a free choice as to whether to speak or remain silent and was capable of exercising sufficient volition to give effect to what they knew was this right. 8 The word 'voluntary' does not mean volunteered. Rather, it means made in the exercise of a free choice to speak or to be silent.5 The issue of voluntariness focuses upon the will of the accused and must be applied to the age, background and psychological condition of the accused and the circumstances in which the confession was made. Voluntariness is not an issue to be determined by reference to a hypothetical standard. It requires a careful assessment of the effects of the actual circumstances upon the will of the particular accused.6 9 In Luo v The Queen,7 the Court of Appeal stated that voluntariness may be expressed by reference to the absence of compulsion or inducement. A confession is voluntary if it is (i) not made under compulsion, or duress, (sometimes referred to as 'basal voluntariness') and (ii) not made out of fear, prejudice or in hope of advantage as a result of statements made by a person in authority.8 10 Thus, an accused person does not need to have understood that they have a choice as to whether or not to speak before a statement is taken to be voluntary. Therefore, a failure by police to give caution or a failure by an accused to understand the caution, although relevant to the exercise of the residual discretion, do not of themselves render the confessional statement involuntary.9 11 In Tofilau v The Queen, Callinan, Heydon and Crennan JJ considered cases concerning basal involuntariness stating that instances of its successful invocation in cases concerned with a person's mental 3 Wendo v The Queen (1963) 109 CLR 559, 572 - 573; Kelly v The State of Western Australia [2017] WASCA 221 [35]. 4 See, for example, Cleland v The Queen (1982) 151 CLR 1, 5. 5 R v Lee (195) 82 CLR 133, 149. 6 Collins v The Queen (1980) 31 ALR 257, 307 (Brennan J). 7 Luo v The Queen [2020] WASCA 184. 8 McDermott v The King (1948) 76 CLR 501, 511 - 512; Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396 [22], [55] - [64], [339] - [340], [362] - [364]; Luo v The Queen [2020] WASCA 184 [71] - [74]. 9 Luo v The Queen [2020] WASCA 184 [74]. -- 5 of 14 -- [2026] WASC 163 MCGRATH J Page 6 state or extreme fatigue were a narrowly confined exception to the general rule that what renders a confessional statement involuntary must be a factor external to the accused.10 12 The basis of the rule excluding admissions for involuntariness is a combination of the potential unreliability of a confessional statement that is involuntary and the common law privilege against self-incrimination.11 Other bases for exclusion 13 The accused relies upon three other bases for discretionary exclusion of the EROI namely that it would be unfair to the accused to admit the EROI, public policy considerations make the admission unacceptable and the prejudicial effect of the evidence outweighs its probative value. The discretionary bases to exclude the EROI proceed on the fact that the utterances of the accused were made voluntarily. Each involves the exercise of a judicial discretion. 14 In R v Swaffield; Pavic v The Queen, the High Court stated the following in respect to the three bases of judicial discretion to exclude:12 The second basis is that it would be unfair to the accused to admit the statement. The purpose of the discretion to exclude evidence for unfairness is to protect the rights and privileges of the accused person. The third basis focuses, not on unfairness to the accused, but on considerations of public policy which make it unacceptable to admit the statement into evidence, notwithstanding that the statement was made voluntarily and that its admission would work no particular unfairness to the accused. The purpose of the discretion which is brought to bear with that emphasis is the protection of the public interest. The fourth basis focuses on the probative value of the statement, there being a power, usually referred to as a discretion, to reject evidence the prejudicial impact of which is greater than its probative value. The purpose of that power or discretion is to guard against a miscarriage of justice. Unfairness discretion 15 Unfairness involves an evaluation of the circumstances. The question is whether it would be unfair to the accused to use his utterances against him. Unfairness, in this sense, is concerned with the 10 Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396 [338] - [340]. 11 The State of Western Australia v Silich [2011] WASCA 135 [152]. 12 R v Swaffield; Pavic v The Queen [1998] HCA 1; (1998) 192 CLR 159 [52]. -- 6 of 14 -- [2026] WASC 163 MCGRATH J Page 7 accused's right to a fair trial, a right which may be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement.13 The unfairness discretion overlaps with the discretion to exclude evidence that is more prejudicial than probative. Whilst unreliability is a touchstone of unfairness, when other considerations are raised, as is the present case, the line between unfairness and policy may become blurred.14 Public policy discretion 16 In R v Ireland, the High Court recognised that there is a public interest in the protection of the individual from unlawful and unfair treatment. The High Court observed that 'convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price'.15 In Bunning v Cross, the High Court referred to the discretion in terms of 'broader questions of high public policy'.16 17 The object of the public policy discretion is to constrain law enforcement officers so as to prevent them engaging in illegal or improper conduct, although the securing of fairness to the accused is a relevant factor in the exercise of the discretion. 18 In respect to improperly obtained evidence, whilst most cases are concerned with evidence that is illegal in the sense of being obtained in violation of some statutory or other legal prescription, the same principle will apply where the evidence is obtained by 'some underhand or sharp practice'.17 19 In R v Swaffield; Pavic v The Queen, the High Court upheld a discretionary decision to exclude admissions obtained by an undercover police officer who interrogated the accused in circumstances after the accused had declined to answer questions during a record of interview.18 Thereby, the police by using a covert police officer, engaged in impermissible conduct to circumvent the accused's right to silence. Further, the High Court also upheld a discretionary decision not to exclude the reception of admissions made by an accused to a friend who was wearing a secreted listening device provided by police officers 13 Van der Meer v The Queen (1988) 62 ALJR 656, 666 (Wilson, Dawson & Toohey JJ). 14 R v Swaffield; Pavic v The Queen [1998] HCA 1; (1998) 192 CLR 159 [54]. 15 R v Ireland (1970) 126 CLR 321, 335. 16 Bunning v Cross (1978) 41 CLR 54, 74. 17 Cross on Evidence (14th Aust ed, 2023) [27305]. 18 R v Swaffield; Pavic v The Queen [1998] HCA 1; (1998) 192 CLR 159 [98] (Toohey, Gaudron & Gummow JJ). -- 7 of 14 -- [2026] WASC 163 MCGRATH J Page 8 on the basis that the admissions were 'volunteered' and made 'in the course of a conversation' rather than being elicited by 'interrogation'.19 20 It is clear that there is judicial discretion to exclude on public policy grounds, evidence of an offence in circumstances where its commission has been brought about by unlawful conduct on the part of law enforcement officers.20 The discretion may also apply in respect to proof of crimes induced not by illegal but by improper means, being those that fall below 'the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement'.21 In Ridgeway v The Queen the High Court stated that:22 The effective investigation by the police of some types of criminal activity may necessarily involve subterfuge, deceit and the intentional creation of opportunities for the commission by a suspect of a criminal offence. When those tactics do not involve illegal conduct, their use will ordinarily be legitimate notwithstanding that they are conducive to the commission of a criminal offence by a person believed to be engaged in criminal activity. It is neither practicable nor desirable to seek to define with precision the borderline between what is acceptable and what is improper in relation to such conduct. The most that can be said is that the stage of impropriety will be reached in the case of conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances, including, amongst other things, the nature and extent of any known or suspected existing or threatened criminal activity, the basis and justification of any suspicion, the difficulty of effective investigation or prevention and any imminent danger to the community. A finding that law enforcement officers have engaged in such clearly improper conduct will not, of course, suffice of itself to give rise to the discretion to exclude evidence of the alleged offences or of an element of it. As with the case of illegal conduct, the discretion will only arise if the conduct has procured the commission of the offence with which the accused is charged. Probative value and prejudicial effect discretion 21 A trial judge in a criminal trial has a discretion to refuse to admit evidence if in the judge's opinion its prejudicial effect outweighs its probative value. However, once the evidence is admitted, the weight to be placed on it is a matter for the jury. The fairness at issue in cases 19 R v Swaffield; Pavic v The Queen [1998] HCA 1; (1998) 192 CLR 159 [102] - [103] (Toohey, Gaudron & Gummow JJ). 20 Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19, 35 - 36. 21 Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19, 36. 22 Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19, 37. -- 8 of 14 -- [2026] WASC 163 MCGRATH J Page 9 involving the exercise of a discretion to exclude unduly prejudicial evidence is the fairness of the trial, in the sense of a trial that does not involve a perceptible risk of a miscarriage of justice. Assessment of application 22 The accused relies upon a myriad of contentions in support of the contention of involuntariness and discretionary bases to exclude the EROI, comprising his diagnosis of Alzheimer's, his use of medication, hypotension, a historic heart attack, age, fatigue, the predatory nature of the police asking questions concerning historical matters without advance notice and after invoking the right to silence. In short, the accused contends that the EROI should be excluded given that the accused was of advanced age with health issues, and was being asked about his conduct decades ago.23 23 Given the overlapping nature of voluntariness, the unfairness discretion and the public policy discretion, it is difficult to treat voluntariness, reliability, unfairness to the accused and public policy considerations as discrete issues. It becomes even more difficult, in a case such as this, where counsel for the accused relies upon a myriad of contentions in support of the exclusion of the EROI. The accused appears to rely upon the combined weight of factors that are said to establish the involuntariness of the EROI and in the alternative ground the exercise of the judicial discretion to exclude. 24 Turning first to involuntariness, I have had the opportunity to assess the EROI and am satisfied that the accused has no difficulty in understanding what is happening, understanding what is being asked and formulating a response. The accused is able to state that he is unable to recall an event. The accused is able to invoke his right to silence when he makes an assessment that the subject matter is not a matter in respect to which he wishes to speak. The accused had the right to invoke his right to silence and did so during his EROI. 25 The accused was 71 years of age when the EROI was conducted. I do not accept that factor alone renders the EROI inadmissible. The accused stated that he uses prescribed medication and that he had taken tramadol, an opioid analgesic, that morning. The accused stated that the medication does make him sleep a lot. There was no other evidence received concerning this contention. In addition, the accused informed the police that he had previously had a heart attack but no further 23 Accused's written outline of submissions filed 9 January 2026 [6]. -- 9 of 14 -- [2026] WASC 163 MCGRATH J Page 10 details were provided. Further, the accused stated in the EROI that he suffers from hypotension. The historical heart attack and the hypotension alone do not render the EROI inadmissible. 26 The evidence does not support a finding that the accused's mind was so unbalanced as to render it wholly unsafe to act on the utterances. At the commencement of the EROI, the accused told the police that he had a diagnosis of dementia. The defence contend that upon that being raised, it is incumbent on the State to fully investigate the claimed diagnosis and to adduce medical evidence to prove that the accused 'was capable of making a voluntary statement'. The defence provided no authority in support of that proposition. I do not accept that the police must cease the interview. 27 During the hearing of the application, counsel for the accused tendered during closing submissions, without objection from the State, a letter from Dr Khateeb, Consultant Physician and Geriatrician, dated 10 May 2022.24 Dr Khateeb, in regard to the accused, states that 'I have been seeing him for a number of years, having diagnosed him with Alzheimer's dementia (with some elements of mixed) and he has been stable on Aricept 10 mg once a day'. Dr Khateeb does not state the date on which he diagnosed the accused in respect to Alzheimer's nor the extent of the dementia. The defence submitted that the accused was diagnosed in February 2017.25 The medical practitioner was not called as a witness at the hearing to exclude the EROI. 28 At the hearing of the application to exclude the EROI, the State called Detective Atkinson, who conducted the EROI. Detective Atkinson's evidence supports a finding that the interview was conducted in an orthodox manner. The officer accepts that he was made aware of the diagnosis of Alzheimer's. The officer stated in the six-week period prior to the interview the accused had been subject to a telephone interception warrant. Detective Atkinson stated that the telephone intercepts disclosed that the accused could engage in complex cognitive thought.26 29 Detective Atkinson also stated that prior to the interview he had assessed the covert recordings conducted between the accused and his son, Mr Heath Fulton, on 16 June 2017 and 2 August 2017. Detective Atkinson stated that in his opinion the accused showed complex 24 Letter from Dr Khateeb dated 10 May 2022. 25 Accused's written outline of submissions filed 9 January 2026 [5]. 26 ts 306 (03/02/2026). -- 10 of 14 -- [2026] WASC 163 MCGRATH J Page 11 thought and cognitive understanding.27 I have had the opportunity to review and listen to both covert recordings. I am satisfied that in the covert recordings, the accused had hours' long conversation with Mr Heath Fulton, during which he was entirely coherent and able to talk about a range of topics encompassing both recent and historical events. 30 Further, the State refers to the statement of Ms Eileen Leamy in which she states, in effect, that the accused told her 'how to fool a doctor into getting an Alzheimer's diagnosis'.28 Further, Ms Leamy states from her observations of the accused and knowing him, including in 2017 when they were partners, he appeared to have a normal level of memory and cognition. For example, the ability to compose and adhere to detailed travel itineraries when they regularly travelled overseas and, further, he was a competitive poker player. During the trial, Ms Leamy gave testimony consistent with her written statement. Ms Leamy confirmed that she received a diagnosis of dementia herself after following the instructions of the accused as to how he fooled a doctor into getting a diagnosis. Ms Leamy confirmed that the medical practitioner that diagnosed the accused was the same doctor that gave her the false diagnosis.29 Ms Leamy confirmed that she has no trouble remembering anything. In cross-examination, Ms Leamy maintained that the accused did tell her how to fool a medical practitioner and that consequently she received the false diagnosis.30 31 Doubt may attend to the legitimacy of the accused's diagnosis of dementia. During the record of interview, the accused appears to at some points contend that he does not know or have a recollection of persons or events, and then subsequently is able to recall. I must not engage in speculation, but it does cause me concern, for example, that at the beginning of the EROI the accused appears to state that he can only remember having three children (omitting Kyle Fulton altogether) and not knowing Deryck Fulton by that name (acknowledging him only as Robert) then subsequently in the interview he refers to both as 'Kyle' and 'Deryck' without any difficulty and entirely in context. 32 I do not accept that a combination of age, fatigue, contended medical conditions and the manner in which the police conducted the 27 ts 306 (03/02/2026). 28 State's brief of evidence page 1-410. 29 ts 858 - 860 (11/02/2026). 30 ts 862 - 863 (11/02/2026). -- 11 of 14 -- [2026] WASC 163 MCGRATH J Page 12 EROI concerning historical events, rendered the EROI inadmissible on the basis of involuntariness. The State has established voluntariness. Accused's right to silence 33 The accused contends that the EROI is inadmissible for the reason that he expressed his unwillingness to speak to the police but that the police persisted. The accused also contends that the EROI was conducted in a predatory manner, without fair notice of the scope of the EROI which had a broad temporal scope and that he is of advanced age with health issues including the contended dementia.31 The accused contends the EROI should be excluded on the basis of unfairness or public policy considerations. 34 I turn first to the question as to whether the police improperly conducted the EROI. At the commencement of the EROI, there is an exchange between Detective Atkinson and the accused during which the accused states that he 'would love to be able to answer the questions - I can't remember, as you know I did speak to a lawyer and the lawyer told me to remain silent and not to answer any questions'. 35 However, the accused stated that the lawyer was not sufficiently qualified in her view to represent him during the record of interview. To that statement, the police officer says, 'Well can you just at least maybe tell me who Sharon Fulton was to you'. The accused then proceeds to answer questions regarding Mrs Fulton, his children, his work history and other general matters. 36 I note that periodically during the EROI the accused invokes his right to silence when questioning relates to a subject-matter he does not wish to discuss. The accused was entitled to do so and exercised his right to silence. Through the EROI the accused indicates a clear willingness to answer some questions and not others. This is entirely consistent with an orthodox police interview. 37 It is permissible for the police officer to continue to question the suspect to ascertain whether that invoking of the right to silence applies to all matters or merely to some, and to question a suspect on the matters about which they are willing to speak.32 38 The State accepted that a point was reached in the record of interview at page 69 of the transcript at which the accused clearly 31 Accused's written outline of submissions filed 9 January 2026 [4]. 32 See, for example, EYO v The State of Western Australia [2019] WASCA 129 [56]. -- 12 of 14 -- [2026] WASC 163 MCGRATH J Page 13 indicated he did not wish to answer any further questions about Mrs Fulton. Therefore, the State accepted that the questions that followed at page 69 onwards would not be led by the State unless the accused himself wished that further portion to be led at trial. Therefore, the portion of the interview that follows from page 69 is not directly relevant to determine whether or not the portion relied upon by the State is admissible. Probative value versus prejudicial effect 39 In respect to the probative value of the EROI, the defence relies upon the fact that the accused in respect to many issues and matters is unable to have any true recollection. The State submits that the accused's position in his EROI that he has no recollection in respect to various events and, in particular, not remembering the various utterances he had said historically regarding the disappearance of his former partner on 18 March 1986, is highly relevant. The State submits that if the accused is unable to recall making the statements and giving explanations regarding the disappearance of Mrs Fulton, he is therefore not in a position to deny having made them at trial. The accused can question the accuracy or validity of the historical utterances should the State seek to rely upon them, but it is not open for the accused to say he now has personal knowledge of the circumstances in which the statements were said to have been made and that his utterances were not made or have been incorrectly recorded. Further, the fact that the accused stated in 2017 that he has a limited recollection is relevant to what his recollection is in 2026. Conclusion 40 I am satisfied that the EROI is admissible. I reject the contention that the accused did not give the interview voluntarily. I am satisfied that the State has proven on the balance of probabilities that the EROI was conducted voluntarily. The accused has not established on the balance of probabilities that the EROI should be excluded in the exercise of the court's discretion on the basis of unreliability, public policy considerations or unfairness. In undertaking my task, I have considered the factors relied upon by the accused. I have revisited the entirety of the factors and assessed the combined weight of those factors in assessing voluntariness and the various bases of judicial discretion. Having done so, I find that the EROI is admissible. -- 13 of 14 -- [2026] WASC 163 MCGRATH J Page 14 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. CEM Associate to the Hon Justice McGrath 30 APRIL 2026 -- 14 of 14 --