Director of Public Prosecutions v SA & Ors (Ruling No 4)
[2023] VSC 661
•15 November 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0258
S ECR 2022 0261
S ECR 2022 0262
S ECR 2022 0264
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| SA | Accused |
| DM | |
| QM | |
| SY |
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JUDGE: | Incerti J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8-10, 13 November 2023 |
DATE OF RULING: | 15 November 2023 |
CASE MAY BE CITED AS: | DPP v SA & Ors (Ruling No 4) |
| MEDIUM NEUTRAL CITATION: | [2023] VSC 661 |
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CRIMINAL LAW – Ruling – Admissibility of alleged admission– Mother present at police interview pursuant to Crimes Act 1958 (Vic) s 464E – Admission made to mother after police interview concluded – Mother disclosed admission to police – Whether evidence was improperly or unlawfully obtained – Whether admission would result in unfairness to the accused – Evidence Act 2008 (Vic) ss 90, 138 – Haddara v The Queen (2014) 43 VR 53.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms K Churchill with Mr J Manning | Office of Public Prosecutions |
| For SA | Mr A Patton with Mr Christin Tom | KPT Legal Pty Ltd |
| For DM | Mr D Sala | Emma Turnbull Lawyers |
| For QM | Mr M Page with Ms M Greener | Ajak & Associates |
| For SY | Ms A Cannon | Chester Metcalfe & Co |
HER HONOUR:
The accused SA, DM, QM, and SY are each charged with the murder of Declan Cutler (‘the deceased’) on 13 March 2022.[1] The deceased died following an attack on him by eight individuals in a suburban street in Reservoir, Victoria. The fatal assault on the deceased was captured on CCTV footage from a nearby residential premises.
[1]Where necessary or appropriate pseudonyms have been used throughout this ruling in accordance with Children, Youth and Families Act 2005 (Vic) s 534.
A joint trial involving SA, QM and SY was set down to commence in July 2023. On 10 July 2023, I handed down three pre-trial rulings relating to the proceeding. However, at a hearing on 20 July 2023, it became clear that there would be further delays to the possible start date for any joint trial and SA, QM and SY’s trial was adjourned.
On 24 October 2023, a fresh indictment was filed joining DM as a co-accused.[2] The charge of murder against each co-accused will now be heard as a judge-alone trial before me commencing on 16 November 2023. The prosecution put their case against SA, DM, QM and SY on the basis that they were involved in the offence pursuant to s 323(1)(c) or, alternatively, s 323(1)(d) of the Crimes Act 1958 (Vic) (‘Crimes Act’).
[2]Indictment C2215271.3.
In DM’s defence response dated 30 October 2023, the following pre-trial issues were raised:
(a) DM’s record of interview;
(b) evidence of DM’s mother, AG, and, if necessary, hearsay evidence from Detective Senior Constable Daniel Herbert (‘Herbert’); and
(c) DNA evidence relevant to DM.
During the pre-trial hearings held on 8, 9, 10 and 13 November 2023, these matters were resolved between the parties except for the admissibility of an admission allegedly made by DM to his mother AG. It is this issue with which this ruling is concerned. At the outset I note that DM denies making this alleged admission.[3]
[3]DM’s Written Submissions, [2].
The primary issue in DM’s trial is identity. That is, whether DM was one of the individuals involved in the fatal attack upon the deceased. DM denies being present at the scene at all.[4]
[4]Defence Response (DM) dated 30 October 2023, [2].
AG attended DM’s first police interview on 23 March[5] in accordance with s 464E(1) of the Crimes Act. Following the interview, she was left alone with DH at which time he is alleged to have made an admission to her.
[5]All dates in this ruling are in 2022 unless otherwise stated.
In a statement dated 23 March, AG states:
I asked [DM] if he was a killer. He said, ‘no mum’. I kicked him but I didn’t kill him. I asked [DM[ who did the killing and he said he didn’t know because he ran away.[6]
[6]Exhibit P3, [6].
DM’s alleged admission to AG occurred between the conclusion of DM’s first record of interview at 12:20pm, and 1:10pm when AG began a conversation with Herbert.[7] At the time DM made the alleged admission to AG, DM and AG were in the interview room alone and the recording equipment was turned off.
[7]Daniel Herbert is now an Acting Sergeant of Police; however, I will refer to him as DSC Herbert in this ruling as, at the relevant times, he was a Detective Senior Constable attached to the Homicide Squad.
During the pre-trial hearings, AG gave evidence on a voir dire and was cross-examined by DM’s counsel. As DM’s mother, AG had a right to object to being required to give evidence generally or to give evidence of a communication between her and DM under s 18 of the Evidence Act 2008 (Vic) (‘Evidence Act’). AG received independent legal advice as to the effect of this section but nonetheless chose to give evidence on the voir dire.
Evidence was also given by Herbert. Herbert conducted the record of interview with DM, had a discussion with AG after DM’s interview in which she disclosed the alleged admission, and took AG’s police statement at her home on the afternoon of 23 March.
I have had regard to written submissions provided to the Court by the parties and which were expanded on orally on 13 November 2023.
DM contends that the evidence of the alleged admission should be excluded under:
(a) section 138 of the Evidence Act;
(b) section 90 of the Evidence Act; and/or
(c) the Haddara discretion.
Crimes Act s 464E
Before considering the relevant evidence and DM’s arguments that evidence of the alleged admission should be excluded it is necessary to say something about s 464E of the Crimes Act.
Section 464E relevantly provides:
If a person in custody is under the age of 18 years, an investigating official must not, subject to subsection (2), question or carry out an investigation under section 464A(2) unless—
(a)a parent or guardian of the person in custody or, if a parent or guardian is not available, an independent person is present; and
(b)before the commencement of any questioning or investigation, the investigating official has allowed the person in custody to communicate with his or her parent or guardian or the independent person in circumstances in which as far as practicable the communication will not be overheard.
The effect of s 464E is that, subject to express exceptions, police must only question a person under the age of 18 who is in custody if a parent or guardian is present. If no parent or guardian is available, an independent person must be present. As such, the section reveals a preference for a young person’s parent or guardian to be present with them during police questioning.
The section also provides that the young person and their parent, guardian or independent person must be given the opportunity to communicate privately before questioning commences. It otherwise provides no express guidance on the role to be played by the parent, guardian, or independent person.
In DPP (Vic) v Toomalatai,[8] Bell J held that the role of an independent person under s 464E is the same as that under the New South Wales legislation, referring to R v Phung and Huynh,[9] where Wood CJ at CL stated:
The role of the support person is to act as a check upon possible unfairness or oppressive behaviour; to assist a child, particularly one who is timid, inarticulate, immature, or inexperienced in matters of law enforcement, who appears to be out of his or her depth or in need of advice; and also to provide the comfort that accompanies knowledge that there is an independent person present during the interview. That role cannot be satisfactorily fulfilled if the support person is himself or herself immature, inexperienced, unfamiliar with the English language, or otherwise unsuitable for the task expected, that is, to intervene if any situation of apparent unfairness or oppression arises, and to give appropriate advice if it appears the child needs assistance in understanding his or her rights.[10]
[8](2013) 13 VR 319.
[9][2001] NSWSC 115.
[10]Ibid [36] quoted in DPP (Vic) v Toomalatai (2013) 13 VR 319, 331 [61].
Justice Bell also quoted Hidden J in R v H (A Child)[11] where — in the course of considering a record of interview in which the child’s father was asked to leave the room, leaving only his sister, who was not a responsible person for the purposes of s 13(1) of the Children (Criminal Proceedings) Act 1987 (NSW), accompanying him — it was said:
The primary aim of such a provision is to protect children from the disadvantaged position inherent in their age, quite apart from any impropriety on the part of police. That protective purpose can be met only by an adult who is free, not only to protest against perceived unfairness, but also to advise the child of his or her rights. As the occasion requires, this advice might be a reminder of the right to silence, or an admonition against further participation in the interview in the absence of legal advice… Further, within appropriate limits, the adult might assist a timid or inarticulate child to frame his or her answer to the allegation. For example, the child might be reminded of circumstances within the knowledge of both the child and the adult which bear upon the matter.[12]
[11](1996) 85 A Crim R 481.
[12]Ibid 486 quoted in DPP (Vic) v Toomalatai (2013) 13 VR 319, 331 [62].
As s 464E provides for the attendance of an independent person in place of a parent or guardian, the section appears to contemplate that a parent or guardian will perform that same role. However, the section provides little guidance for what police are to do if they consider that a parent is not willing or able to play such a role. Indeed, the absence of clarity of the content of the role of parents, guardians and independent persons has been the subject of calls for legislative reform.[13]
[13]Victorian Law Reform Commission, Supporting Young People in Police Interviews (Final Report No 21, November 2010).
Evidence
At approximately 7:02am on 23 March, DM was arrested at his home address. One of the arresting police officers was Herbert who was attached to the Homicide Squad.
Herbert informed DM why the police were at his home and expressly told DM he was under arrest for the murder of the deceased. Herbert cautioned DM in the presence of his mother, AG. DM was taken to Werribee Police Station. AG attended the Werribee police station prior to the commencement of the interview. Herbert made inquiries at the police station with AG before the interview if DM had any mental health issue. Herbert’s evidence was that AG told him DM did not have any diagnosis but AG ‘believed he might be a – I want to say ADHD or autism. Something, maybe.’[14] There was no further evidence before the Court about DM’s mental health or any other relevant health conditions. DM did not appear to present with any condition which may have caused the investigating police concern. Nor were any submissions made by DM’s counsel that DM had any relevant mental health condition or disability which may have affected his ability to participate in the interview.
[14]T49.13–21.
Prior to the interview commencing Herbert and the other police officer present, DSC Kurt Bansagi, allowed AG and DM to have a private conversation.
Herbert confirmed in evidence that the purpose of AG attending was because DM was under 18 years of age, and they are required to have a person present. The purpose of their presence was to support the young person and to ensure that DM understood the caution he would receive.[15]
[15]T50.27–T51.1.
The interview commenced at 9:29am and AG was present. DM was cautioned and his rights were explained to him, including his right to silence and his right to speak to a lawyer. DM indicated that he understood his right to silence and that he could communicate with a lawyer. In relation to his right to speak to a lawyer, DM says to AG words to the effect of ‘mum can do it after’.[16] Herbert then confirmed with AG that she was comfortable that DM understood the caution he was given and his rights.[17] Herbert then commented that if AG did not understand, she should just ask.
[16]Exhibit P2, (NB transcript of DM’s recording of interview only commences at Q206).
[17]Exhibit P2.
While DM answers some questions he mostly gives ‘no comment’ answers to questions from police.
On several occasions during the interview, AG herself makes comments. For example, AG says to DM in the interview, ‘If you know anything tell us.’[18] After AG makes that comment, Herbert says directly to DM, ‘you have the right not to say anything’.[19] AG later says to DM: ‘If you don’t want to talk in front of me I can go out and leave you.’[20]
[18]Exhibit P2.
[19]Exhibit P2.
[20]Exhibit P2, Q286.
After showing DM the CCTV footage of the attack on the deceased, AG asks if they can play the video again.[21]
[21]Exhibit P2, Q258–260.
At 11:58am the interview was suspended as DM needs to use the toilet. The recording is left on, and AG remains in the room. There is no conversation between AG and the police, other than her asking if the recording is on.[22] DM returns from the toilet and the interview recommences at 11:59am.
[22]Exhibit P2, Q271–273.
Shortly after the interview recommences, Herbert says:
[DM], your mum wants to see the footage again. O.K. I might show her after we finish the interview rather than playing it again. It's pretty confronting. Do you have any questions at this time?[23]
[23]Exhibit P2, Q277.
In the context of asking DM if he will consent to giving a DNA sample, the following exchange takes place:
Q313Do you consent to the request to undergo the taking of a DNA profile sample?
DMWhat happens if I don't?
Q314So if you don't what we will do is we'll get a senior police officer - - -
AGDo it.
Q315 - - - in this building to authorise us - and it's like - it's like the old court order. That authority allows us to take it without your consent.
AGYeah, I say “yes”. The mother will say “yes” because we need to find out the truth, yeah.
DMYeah.
Q316So do you consent?
DMYeah, yeah.[24]
[24]Exhibit P2, Q313–316.
At 12:20pm, the interview between police and DM, at which AG was present, is concluded. AG states:
5.The detectives left the room and I spoke to [DM]. I hugged [DM] and told him that hang around with the wrong friends had done this.
6.I asked [DM] if he was a killer. He said ‘No Mum’. I kicked him but I didn’t kill him. I asked [DM] who did the killing and he said he didn’t know because he ran away.[25]
[25]Exhibit P3, [5]–[6].
The alleged admission was not recorded or overheard. DM and AG were left alone in the interview room and the recording was concluded.
After approximately 15 minutes, Herbert entered the room and found DM on the phone and both DM and AG were visibly upset.
In evidence is an audio recording of a conversation between Herbert and AG.[26] The conversation commenced at 1:10pm and is 21 minutes in duration.
[26]Exhibit DM1.
Herbert says to AG that she had asked in the interview to see the CCTV footage again. Herbert warns AG that the CCTV footage is confronting, and he wants to confirm that she did in fact want to see it again. AG says that she does want to see it again.
AG is shown the original version of the CCTV where the individuals attacking the deceased are not numbered and is then shown another version where the individuals are numbered. She is asked by Herbert if she sees DM and AG says no. She says she knows one called PM. Herbert shows the CCTV footage with the numbering and asks her if she can recognise the individuals numbered six, eight, seven and three. She makes some comments about who number one might be.
At the mark 5:44 on the audio recording, AG volunteers:
The one he told me, after he said – after… he just said:
‘Mum, I didn’t kill him, but I kick’.
Herbert replies:
So he said, ‘I didn’t kill him but I kicked him’.
And AG responds:
Yeah.
She then adds:
He was in the group. He said: ‘I kick, but I didn’t kill’...I said ‘Who is kill?’, I said – he said, I don’t know because I run away’.[27]
[27]Exhibit DM1.
Shortly after Herbert takes AG back to the CCTV footage. AG asks if they all have knives and Herbert says no, but that most of them did.
Herbert then shows AG the numbered CCTV footage again. Herbert says at the mark 7:31 that the police say DM is male three. In response, AG states:
Maybe, because he said, ‘Mum, I kicked but I didn’t kill’. I said ‘Who is kill then?’. He said, ‘I run away’.
The audio recording suggests that Herbert points out on the screen that male three had a knife in his hand and points to the motion. Herbert says that he cannot say that male three stabbed the deceased and caused his death but because everyone was working together, he was stabbed a lot and he died. Herbert went on to tell AG:
That means every person that took part… can be charged with the same offence, which is murder. Murder is a most serious offence in Victoria.[28]
[28]Ibid.
At 10:16 of the audio recording, in response to Herbert explaining DM’s right to say, ‘no comment’, AG states:
Yeah because I ask him, ‘Why you say no comment for everything?’, because he said ‘I didn’t see who kill’.[29]
[29]Ibid.
At 14:59 of the audio recording, Herbert said the following to AG:
[AG], would you be willing to make a statement to the police, to me about viewing that footage and seeing that that is [PM]…in the footage? Now, I’ll be honest with you, you absolutely do not have to make a statement to anyone. You do not have to co-operate. You wanna leave, I’ll open the doors…and let you out now. You can leave any time. You do not need to do this. But if you do, what I would ask is that we make a statement about – you’ve viewed the footage. You’ve viewed the footage both the normal footage and the footage with the numbers, and that you know…that what you said, number 6 was [PM]…
Now, there is law in Victoria that says that, we can’t– you’re [DM]’s mother and what’s more important than any evidence that you could give to the Court about anything that [DM] has done wrong. What’s more important than anything like that is your relationship with [DM]. That is the- paramount. In other words I would ask that you put into your statement the conversation you had with [DM] when he said he was there, he kicked, he did not kill, he ran away. But you do not have to. If you do, it still doesn’t mean that we can use it in Court. We could, it’s possible, but it’s not certain. But at the same time, I just want to make sure you know you don’t have to in any way. You don’t have to assist us, you don’t have to talk to me, you don’t’ have to make a statement.
At 17:00 of the audio recording, AG said to let her think about it and asked for Herbert’s card.
At 2:27pm, Herbert attended AG’s house and obtained a written statement from her which included the alleged admission. AG’s evidence was that she has limited reading of English.[30]
[30]T82.9–17.
At, or about, 3:07pm, AG made and signed a statement, which included paragraphs five and six.[31] During her evidence on the voir dire, AG sought to change paragraph 10 of her statement dealing with the purported recognition of DM in the CCTV footage and a description of male three’s conduct in that footage. AG did not seek to make any change to the paragraphs concerning the alleged admission and otherwise confirmed that the statement was written by police based on answers she gave to questions. AG confirmed the changes to paragraph 10 and that the contents of her statement were true and correct.[32]
[31]Exhibit P3.
[32]T84.20–23; T86.1–14.
During her evidence on the voir dire, AG confirmed that she asked to see the CCTV footage again because she wanted to know if DM was lying when he said that ‘he ran away’ and if he was telling her the truth or lying. AG did not tell the police that was her reason for wanting to see the CCTV footage again.[33]
[33]T92.9–15.
At 6:44pm, DM was interviewed again by police. On this occasion an independent person was arranged. DM was told that the police had received additional information since the record of interview was concluded at 12.20pm and the information was that he was with the group that killed the deceased.[34] DM was not informed that the information came from his mother.
[34]Exhibit P1, Q356.
During her evidence on the voir dire, AG was assisted by an interpreter. Even though AG had the assistance of an interpreter, I am satisfied that AG has a reasonable and adequate grasp of English and that during the conversation with Herbert where she disclosed the admission she understood what was being said and was able to provide answers to questions asked by Herbert. Again, even though AG did not write her statement, she agreed that she was asked questions, and that Herbert wrote her answers.
Section 138
Section 138 of the Evidence Act provides:
(1) Evidence that was obtained—
(a) improperly or in contravention of an Australian law; or
(b)in consequence of an impropriety or of a contravention of an Australian law—
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence.
(2)Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly is the person conducting the questioning—
(a)did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b)made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3)Without limiting the matters that the court may take into account under subsection (1), it is to take into account—
(a)the probative value of the evidence; and
(b)the importance of the evidence in the proceeding; and
(c)the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d)the gravity of the impropriety or contravention; and
(e)whether the impropriety or contravention was deliberate or reckless; and
(f)whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised in the International Covenant on Civil and Political Rights; and
(g)whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h)the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
The exclusionary rule in s 138 envisages a two-stage process:
First, the party seeking to exclude the evidence has the burden of satisfying the judge that the impugned evidence was obtained improperly or in contravention of an Australian law. Secondly, the party seeking admission of the impugned evidence must satisfy the court that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.[35]
[35]Wu (a pseudonym) v The Queen [2020] VSCA 94, [71] (T Forrest and Emerton JJA and Croucher AJA) (citations omitted).
In this case, DM contends that the evidence of the alleged admission was obtained ‘improperly’, rather than in contravention of an Australian law. The Evidence Act does not define ‘improperly’ or ‘impropriety’. However, in Robinson v Woolworths Ltd,[36] Basten JA (Barr J agreeing) stated:
[T]he identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as ‘the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement’. Secondly, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be ‘quite inconsistent with’ or ‘clearly inconsistent with’ those standards.[37]
DM’s submissions
[36]Robinson v Woolworths Ltd (2005) 64 NSWLR 612.
[37]Ibid 618–19 [23] (citations omitted) cited in Wu (a pseudonym) v The Queen [2020] VSCA 94, [74].
DM submits that the evidence of the alleged admission should be excluded under s 138. DM identifies the relevant impropriety arising from Herbert effectively transforming the statutory protection afforded to children accused of a crime — namely the obligation of having a parent present to safe-guard their rights under Crimes Act s 464E — into an investigative tool and consequently obtained an admission he would otherwise have not been able to secure.
In relation to Crimes Act s 464E, DM submitted:
[A]s a starting point any accused person under the age of 18 has the statutory right to a parent, guardian or independent person present to ensure they understand the cautioning and their rights — or in the words of [Herbert] ‘it is a young person in custody. They might be fearful. They might not understand and just say, ‘Yes, yes, yes,’ all the way through the process. And now that mum’s been — is there, mum can speak, or independent person can speak to the accused and they can have at least — know there’s someone there to support them through the process as well as inform them of what’s about to happen.’
Naturally, as a corollary of such a right, it is respectfully submitted, a child must enjoy the protection from exploitation of investigators seeking to utilise the support as a means of evidence gathering or an utilising such individuals as extension of the investigation.
Put another way, a child should expect to enjoy the right to ensure that conversations in and around the interview with a parent or guardian are not the subject of a statement or later evidence against them.
How can a child, or parent, be expected to be able to properly partake in the process if either or both is worried that any conversations they may have might become disclosable later to investigators.[38]
[38]DM’s Written Submissions, [19]–[22].
DM submits that Herbert in essence turned AG into an agent of the investigation by involving her in the matter above and beyond what her role was in assisting DM. DM contends that whether her engagement was willing, the conduct of Herbert in engaging with her in such a way to elicit evidence was against the proper practice of any investigator.
It is emphasised that the alleged admission was made after AG had said to DM in the record of interview ‘[i]f you know anything tell us’ and after Herbert has collaborated with AG to help establish rapport with DM and put him at ease. As such it is argued that at the time of the alleged admission, AG had taken on a role of assistant investigator and moved away from her role of safe-guarding DM’s rights and ensuring he understood the process.
DM submits that AG never understood her role. However, regardless of whether AG was ignorant of her role or the ramifications of her conduct, DM submits Herbert appreciated what was happening. This can be seen by him actively passing pictures to her and engaging with her.
DM submits that there is evidence that Herbert appreciates that his conduct in relation with AG was improper. In particular:
(a) in the interview conducted with DM after AG had told him of the admission, Herbert does not disclose that DM’s mother had made a statement and arranges for a different independent person to give DM advice; and
(b) Herbert elected to record his first interactions with AG but failed to do so later that same afternoon when he took her statement.
DM submits that Herbert’s assertion to AG that the law recognises the prominence of the family unit and that merely speaking to police does not necessarily mean that she will have to give evidence is ‘poor cover for his improper behaviour’. He emphasises that Herbert is aware of the ability to rely on statements even if the person making the statement does not wish to give evidence and it is submitted that he knew that once he had obtained the statement from AG he no longer needed her willing participation.
It is also emphasised that the alleged admission was not spontaneous or voluntary; AG elicited the alleged admission from DM.
In summary, DM submits that the minimum standard expected or required of law enforcement was breached, as such standards require:
(a) that when a person requires the need of a guardian or independent person to ensure they understand their rights in an interview, conversations with that person — in connection with understanding those rights — cannot be the subject of police investigation;
(b) that law enforcement should not be permitted to utilise the parent-child relationship to advance a prosecution against the child, especially when the involvement of the parent to assist the child is mandated by statute; and
(c) that law enforcement should not take advantage of children and parent to circumnavigate the rules designed to protect both.
As to the balancing exercise required by s 138, DM accepts that the evidence would be highly relevant, and the charge of murder is the most serious charge in the criminal calendar. However, he submits that those two features alone should not allow the evidence to be admitted as there needs to be a proper reflection of the Court’s disdain for the impropriety which occurred.
Prosecution submissions
The prosecution submits that DM cannot overcome the onus of establishing impropriety which resulted in DM making the alleged admission to AG, AG volunteering the alleged admission to police and Herbert taking the statement from AG.
The prosecution submits that the interview with DM was conducted in accordance with the requirements under the Crimes Act, and there was not any identified breach of the minimum standards expected of police officers.[39]
Consideration
[39]Prosecution Written Submissions, [17].
The onus under s 138(1)(a) of the Act rests with DM to establish the evidence was obtained improperly.
DM had just turned 15 years old at the time of the interview. His mother, AG, attends the interview. AG’s evidence on the voir dire was that DM was in a better position to understand the cautioning or rights because his understanding of English was better than hers. While AG may have had a limited understanding of the cautioning and rights provided to DM, there is no evidence suggesting DM did not understand the caution given or that he did not understand his rights, in particular, his right to silence. DM gives for the most part a ‘no comment’ interview. DM demonstrated an understanding and an ability to exercise his right to silence.
Herbert did not question DM without his mother present, and he facilitated a private conversation between DM and his mother before the interview commenced. At the break in the interview at 11:58am, in DM’s absence, no attempt is made to ask AG questions or talk to her about any matter.
During the interview AG asks to see the CCTV footage again. This is done in DM’s presence and Herbert explains to DM that he will show AG the CCTV footage again after the interview has concluded.
At the conclusion of the interview, appropriately, the detectives gave DM and his mother some time on their own. There is no evidence that Herbert asked AG or suggested to AG that she speak to her son, question him about his involvement, report back to him or make any efforts to covertly record any interactions between them. The interview had concluded and as such AG was no longer in the role of a support person for DM.
AG spoke to her son in private. There is no evidence that DM made the alleged admission under duress or pressure from AG. While it was made in response to a question from his mother there is no evidence to suggest that it was not voluntary.
After the private meeting with DM concluded, AG requested to view the CCTV footage again. AG did not explain to Herbert why she wanted to see the footage again. Herbert warns AG that the footage is confronting and queries if she really wants to see it again. There is no evidence that Herbert knew why AG wanted to see the CCTV footage again or that he could have known that DM had made the alleged admission to AG. The evidence is that AG wanted to see the CCTV footage at that stage to determine if DM was telling the truth. This was not conveyed to Herbert. Herbert did not enquire at any stage about what DM and AG discussed in their private meeting.
I consider that at the highest it could be inferred that Herbert knows AG may, of her own volition, volunteer some information useful to his investigation. AG was able to identify members of the group such as PM. This was relevant and important information for the investigation. I do not see anything inherently improper in saying that he would show AG the footage again later. At the time of her initial request, DM was still being interviewed and it would have been inappropriate for him to allow her to guide how the interview with DM was conducted or for her to contribute her own views on the footage during that interview. Furthermore, Herbert does not seize on the potential to obtain information from AG. After the interview was completed, Herbert warns AG that the CCTV footage is confronting and checks that she did in fact want to see it again. This is inconsistent with the proposition that Herbert seized the opportunity to extract information from AG about what DM might have told her.
AG took a more active role in the interview than simply a support person. She seemed anxious that DM cooperate with the police. This is beyond the scope of AG’s role as DM’s support person in the interview. However, I do not consider Herbert took advantage of the circumstances or in any way encouraged AG to elicit information from DM during the interview or in their private session after the interview. Further, while her comments may suggest some confusion by AG about her role, there was nothing said by her to DM that had an adverse impact for him in the interview or that justified Herbert ceasing the interview. Herbert does not actively engage with AG during the interview and when she specifically asks to see the CCTV footage again, he appropriately does not acquiesce to her request in the interview.
I reject the submission that Herbert turned AG into an agent of the investigation. The suggestion that Herbert collaborated with AG to establish a rapport with DM and put him at ease is unfounded. I do not consider, given the sequence of events, that AG was being manipulated overtly or subtly by Herbert or that at any stage she was acting with or on behalf of the investigators. I can see no evidence of a relationship between Herbert and AG which developed during the interview which would have signalled to AG that she should try to extract information from DM and provide it to the police. There is nothing to suggest that the exchange that occurred between AG and DM after the conclusion of the interview was influenced by Herbert’s conduct during the interview.
I do not consider there was anything that could be construed as manipulative, deceptive or unfair in Herbert’s conduct and interview process which would have influenced that conversation. There is a temporal connection between the interview and the private conversation between DM and his mother, however it was clear to all that the interview had concluded. I accept that DM may not have been aware that his statements to his mother would be passed on to police. However, given the interview had concluded, the situation is no different than if DM had made an admission to his mother or a family member or friend who visited him in custody or outside of the interview process.
Herbert did not seek to elicit from AG any discussions she had with DM. Instead, AG volunteered the alleged admission on three separate occasions to Herbert after the interview was concluded. Upon AG volunteering the admission to him, Herbert says to AG that DM has a right to silence. Soon after AG first volunteers the alleged admission, Herbert asks AG whether she would be willing to make a statement in relation to her recognition of PM in the CCTV footage.
Herbert clearly explains that AG does not have to provide a statement and that she is free to go at any stage. He explains that the law recognises her relationship with DM as his mother and that this relationship is the most important thing. In doing so he is reflecting s 18 of the Evidence Act which provides a mechanism for a spouse, de facto partner, parent, or child of an accused to object to being required to give evidence as a witness for the prosecution.
The central argument advanced by DM’s counsel related to DM’s statutory right to have a parent present to ensure he understood the cautioning and his rights. Following from this, defence counsel submits that DM was entitled to protection from exploitation of investigators seeking to use a support person, here AG, as a means of gathering evidence or utilising such individuals as an extension of the investigation.
AG’s role included ensuring that DM was aware of his rights. The record of interview makes clear that DM understood his rights. Indeed, he repeatedly exercised his right to silence by answering ‘no comment’. Furthermore, AG was attentive to the conversation and appeared capable of intervening if the police were to engage in any overt oppressive or intimidating conduct. While AG did engage with Herbert, I do not accept that her actions during the interview were such as to require Herbert to have serious concerns that she was unable to play her role. Accordingly, I do not consider that in proceeding with the interview in AG’s presence Herbert engaged in any type of relevant impropriety.
In the circumstances, I do not consider that AG’s statement to DM, ‘[i]f you know anything tell us’,[40] gives rise to any impropriety on the part of Herbert. Indeed, immediately after AG makes that comment, Herbert says directly to DM, ‘you have the right not to say anything’.[41] Furthermore, as Mackenzie J said in R v Vinh Chi Pham:
The mere fact that the independent person may have encouraged the accused to tell the truth is not evidence, in the absence of other factors, that the role of the independent person has miscarried.[42]
[40]Exhibit P2, 9:59:05am.
[41]Ibid, 9:59:09am.
[42]R v Vinh Chi Pham [2000] QSC 274, [19].
It may be thought regrettable that in Victoria there is no legislative articulation of the role to be played by the parent or other supportive adult under s 464E, nor a legislative requirement that police provide the supportive adult documentation explaining their role and the child’s rights, as is required in New South Wales and Queensland.[43] Nonetheless, there is no suggestion during the interview that AG was unable or unwilling to perform her role to such an extent that the minimum standards expected of Herbert would have required him to take a different course of action. Indeed, as stated above, Herbert was careful to remind DM of his right to silence when his mother suggested he should speak. Further, there is no evidence suggesting a causal relationship between AG’s actions in the interview and DM making the alleged admission to her after the interview had concluded.
[43]See Victorian Law Reform Commission, Supporting Young People in Police Interviews (Final Report No 21, November 2010).
For the reasons set out, I do not consider that Herbert’s conduct throughout the interview, the subsequent conversation with AG, the taking of a statement from AG or the final interview with DM after obtaining the statement, amounts to an attempt to use AG as an extension of the investigation or demonstrates any impropriety.
While AG’s relationship with DM is important, it does not demand per se confidentiality in relation to admissions freely made by DM to AG outside the interview and in the absence of the police. AG’s role in relation to DM does not fall within any restricted categories of relationship protected by legal privilege. This is not a specific relationship which has been given special legislative protection beyond s 18 of the Evidence Act, such as a solicitor/client relationship. As noted by the New South Wales Criminal Court of Appeal in JB v The Queen,[44] the relationship between a young person and their support person (in that case an independent person, not a guardian or parent) can be contrasted with that between a solicitor/client relationship which involves a legal requirement that confidences exchanged between them are to be strictly treated as confidential by the practitioner.[45] AG’s fundamental role at the interview on 23 March was to assist DM in his dealings with the police. There is no evidence that DM was disadvantaged in the interview because of his age or by any failing by AG.
[44](2012) 83 NSWLR 153.
[45]Ibid 159 [29]–[30] (Whealy JA, Hilsop J and Grove AJ agreeing).
I repeat, that I do not consider AG was acting at the direction of the police. AG behaved independently and understood the gravity of the situation for DM. AG was not rushed or pressured to talk to Herbert after her private conversation with DM. She independently asked again to see the CCTV footage.
There is no evidence that DM was cajoled or tricked into making the alleged admission to AG.
Finally, DM’s counsel argued that there may have been some impropriety in the fact that after obtaining the statement, Herbert did not disclose the source of the information of the admission to DM in his subsequent police interview. Section 138 concerns itself with evidence of impropriety or illegally obtained evidence. Herbert’s decision not to disclose the source cannot therefore be said to have affected DM voluntarily providing the alleged admission to his mother in a private conversation.
For all the reasons set out above, I do not consider that there was any impropriety by Herbert leading to the giving of the alleged admission.
Even if I were to find impropriety, I consider the balancing exercise of factors in s 138(3) of the Evidence Act favours admission of the evidence. The evidence of the alleged admission is significant, compelling and of high probative value. It involves allegations of a direct admission by DM in relation to the primary issue in dispute: identity. The alleged admissions as to kicking, running away and not seeing who killed the deceased go to DM’s presence at the scene.
I consider the evidence is of high quality and reliable since it was made privately to his mother, was voluntarily confirmed by his mother to the police within an hour on recording, and within a statement made by his mother late that afternoon.
AG, during her evidence at the voir dire, did not resile from paragraphs five to six of her statement which contain the alleged admission.
The alleged offending involves the most serious charge known to the law. A more serious offence, the greater the public interest in convicting the wrongdoer.
Section 90
Section 90 of the Evidence Act provides:
In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if—
(a) the evidence is adduced by the prosecution; and
(b) having regard to the circumstances in which the admission was made, it would be unfair to an accused to use the evidence.
The Victorian Court of Appeal in DPP v James (a Pseudonym),[46] considered that s 90 operates as ‘a residual or “safety net” discretion’ and therefore falls to be considered after exclusion under s 138 of the Evidence Act has been exhausted.[47]
[46][2016] VSCA 106.
[47][2016] VSCA 106, [22].
The onus in proving unfairness pursuant to s 90 lies with the accused.[48]
[48]Em v The Queen (2007) 232 CLR 67, 91 [63] (Gleeson CJ and Heydon J).
‘Unfairness’ is not defined by the Evidence Act and any application of s 90 will turn on the factual matrix of the case.[49] The extent of the unfairness relates to the use of the evidence at trial, and ‘not directly upon characterising the circumstances’ in which the impugned admission was made.[50] Section 90 does not require impropriety on behalf of the police to be proven, however if impropriety is found that will almost certainly favour exclusion.[51]
[49]Ibid 89 [56] (Gleeson CJ and Heydon J).
[50]Ibid 103 [107] (Gleeson CJ and Heydon J); Headland (a pseudonym) v The King [2023] VSCA 174, [43].
[51]See DPP v James (a Pseudonym) [2016] VSCA 106, [58]
In the case of JB v R,[52] the New South Wales Court of Appeal was required to consider the applicability of s 90 to an admission made to a support person by a juvenile while in custody. The Court found that the use of such an admission at trial was not ‘unfair’ because the relationship between the accused and the support person is not statutorily protected.[53] Justice of Appeal Whealy (Hilsop J and Grove AJ agreeing) stated that:
The fundamental role of the support person is to assist the juvenile in his or her dealings with the police. It is to protect children from the disadvantaged position they are in as a consequence of their age. It is to protect them from police impropriety or from the disadvantages that arise simply because they are in a custodial situation and at the mercy of mature and experienced police officers (R v Honan; Director of Public Prosecutions (Vic) v Toomalatai; and R v Huynh).
In a given situation, the role undertaken by a support person may require that advice be given to a juvenile that he or she may or should remain silent during a police interview; it may require the tendering of advice or the giving of practical assistance during the actual interview itself. Such a role, though important, does not demand per se confidentiality in relation to admissions made freely by the juvenile to the support person outside the interview room, and in the absence of the police.[54]
[52](2012) 83 NSWLR 153.
[53]Ibid 160 [36] (Whealy JA, Hilsop J and Grove AJ agreeing).
[54]Ibid 159 [30]–[31] (Whealy JA, Hilsop J and Grove AJ agreeing).
Relevantly, the Court considered that there was no evidence that the support person had placed any pressure on the young person to make an admission, or that the young person’s right to silence had been compromised. Both factors were noted by the Court as relevant considerations to the ‘discretionary exercise under s 90.’[55]
[55](2012) 83 NSWLR 153, 160–1 [41]–[42] (Whealy JA).
In an unsuccessful special leave application to the High Court,[56] her Honour Justice Bell made the following comment:
One can understand a person might feel, as it were, personally aggrieved if they make an admission to their mother and their mother tells the police. The relationship has elements of support and confidentiality and things of that character.[57]
[56]JB v The Queen [2013] HCATrans 28 (15 February 2013).
[57]Ibid [62]–[65].
Her Honour did not go so far as to suggest that the parent/child relationship should be imbued with the sort of protection which might warrant exclusion under s 90.
DM’s submissions
DM submits that s 90 of the Evidence Act vests the Court with a broad and generalised power to exclude the admission without the need to show impropriety on behalf of the police investigators.
Despite this submission, counsel for DM submits that to allow the admission would be ‘grossly unfair’, given the way the conversation between DM and AG was relayed to Herbert, and Herbert’s conduct on the day in question.
DM drew the Court’s attention to the comments of Gummow and Hayne JJ in Em v The Queen, where their Honours said:
The second consideration that is relevant to the present matter, and assists in demonstrating that s 90 is to be understood as a safety net which catches a residuary category of cases not expressly dealt with elsewhere in the Act, where use of the evidence at trial would be unfair, is the consideration of improper police methods.[58]
[58]Em v The Queen (2007) 232 CLR 67, 105 [114].
In oral submissions, DM’s counsel submitted that JB v R[59] was wrongly decided, although he acknowledged that it had been referred to without criticism in this Court by Jane Dixon J in DPP v Lo (Ruling No 4).[60]
[59][2012] NSWCCA 12.
[60][2018] VSC 147, [90].
It was also submitted that there are distinguishing features between JB v R and the present case, notably that this case involves a parent rather than an independent support person. In this regard DM relies upon the observations of Bell J in the special leave application,[61] and submits that the relationship between a person and their mother is of a different flavour and character. He also submits that unlike the independent support person in JB v R, the legislature has afforded additional protections for parents of accused persons in the form of s 18 of the Evidence Act.
[61]JB v The Queen [2013] HCATrans 28 (15 February 2013).
Furthermore, DM’s counsel sought to distinguish JB v R on the basis that that case was decided on the basis that the independent support person was not involved in the investigation process, whereas — in his submission — AG became part of the process by looking at the photos and asking questions of police and DM.
It is also contended that the decision is not binding as the support person was subsequently found to be a police informer and JB’s conviction was overturned in JB v R (No 2).[62]
Prosecution submissions
[62][2016] NSWCCA 67.
In relation to s 90, the prosecution reiterated its position in relation to the application under s 138 of the Evidence Act. In relation to the circumstances surrounding the alleged admission, it was noted by the prosecution that:
a. There was no involvement by investigating officials (whether by immediate questioning, presence, or covert recording of [DM]) when the alleged admission was made. That is, the admission was not procured through questioning by Herbert and there is no abrogation of [DM]’s right to silence.
b. The admission was made to [DM]’s mother in circumstances where there is no evidence she pressured, admonished or harassed him to provide it. In circumstances where he had otherwise denied presence during the interview, there is no evidence that he felt compelled to give the admission to his mother.
c. The admission was made in response to a single question from his mother. It was entirely voluntary.
d. [AG] asked to view the footage again to compare it to the admission she was given. That is, police did not request her to view it.
e. Herbert agreed to show [AG] the footage. By then, the interview (and [AG]’s role in it) had concluded, and the footage was played 50 minutes later.
f. [AG] watched the footage and without questioning or prompting regarding the conversations with her son, volunteered to police the admission made by him. The reliability of these comments was captured by audio recording, and again in a statement that afternoon.
g. [AG]’s three references to the admission were all proffered before Herbert first asked her to provide a statement. The request for a statement was made in the context of recognition of persons on the CCTV footage. He invited her to include the admission and made clear she did not have to.[63]
[63]Prosecution Written Submissions, [36] (footnotes omitted).
The prosecution submits that JB v R is almost directly on point and contends it is not the nature of the relationship which was important to the Court’s reasoning but rather the role, which under s 464E of the Crimes Act can be fulfilled by a parent or an independent third person.
The prosecution emphasises that like an independent third person the relationship of parent and child is not protected by any privilege in Pt 3.10 of the Evidence Act and s 18 is merely a mechanism to allow for the preservation of relationships in certain circumstances. It is not a ‘protection’ as it is not couched in mandatory terms. The prosecution identifies that the lack of protection in these circumstances is revealed by the statement in JB v R that ‘[t]he position is no different than if he made the admission to a family member or friend who visited him in custody’.[64] Finally, as to the statement of Bell J in the special leave application, the prosecution notes that it is nothing more than a comment and the High Court refused special leave to appeal. In any event the prosecution ultimately submits that ‘personally aggrieved’ falls well short of the considerations for the Court under s 90.
Consideration
[64][2012] NSWCCA 12, [43].
For many of the same reasons explained in relation to s 138, I do not consider that the circumstances in which the alleged admission was made justify the exclusion of evidence of the alleged admission under s 90.
The alleged admission itself was made to AG voluntarily, in private and after the interview had been completed. There was no involvement or presence of investigating officials at that time. There is no evidence that AG pressured, admonished or harassed him to provide it, nor that her intention at the time of the discussion was to disclose any admission to police.
I have had regard to DM’s age and his relationship with his mother and the way the interview was conducted. There is no evidence that DM’s right to silence was undermined at any stage. The fact that the admission was made in a private conversation with his mother after the interview was concluded and AG’s statement was taken at her home is of no real consequence. Every day, police officers take advantage of opportunities to gather evidence, including from family members and in a variety of places. There is no suggestion that AG was operating under some mistaken belief that what she told the police could not be used against her son or that it was not adverse to his interests. Even if AG was mistaken or, for example, thought that disclosing DM’s admission would help him or in some way exculpate him, there is no reason—in the absence of some factor such as impropriety or illegality—why Herbert should not have taken the steps he did, including obtaining the statement from AG. There is nothing to suggest AG’s evidence of the admission is infected with a degree of unreliability creating a basis for exclusion.
AG received independent legal advice before giving evidence at the voir dire and understood the effect of s 18 of the Evidence Act. This is not a case where DM or AG’s freedom to speak or not to speak was impugned. The questioning by the police of DM in the interview was not overbearing. Despite natural discomfort created by the fact it is DM’s mother, a person who does not appear to have a sophisticated grasp of English or the justice system, there is nothing which makes it unfair for the alleged admission to be received into evidence.
At the time Herbert showed AG the footage again he was not aware that DM had made any admissions, nor did he ask AG if DM had disclosed any information to her.
Furthermore, I consider the reasoning of the New South Wales Criminal Court of Appeal in JB v R[65] is applicable to the present circumstances notwithstanding that AG is DM’s mother and not an independent third person. Notwithstanding that AG was present at the police station, and during the interview, due to s 464E of the Evidence Act, the relationship between mother and son is not one which is protected by any legal privilege.
[65][2012] NSWCCA 12.
Ultimately, having regard to the circumstances in which the alleged admission was made, as well as the broader surrounding circumstances which led to AG disclosing the admission and making a statement, I do not consider that use of the evidence of the admission at DM’s trial would be unfair.
The Haddara discretion
In Victoria, the common law discretion to exclude evidence on the ground of unfairness is commonly referred to as the Haddara discretion. This is in reference to Haddara v R,[66] where Redlich and Weinberg JJA (Priest JA dissenting) considered that this common law discretion is still able to be exercised in jurisdictions operating under the uniform evidence law.
[66](2014) 43 VR 53.
In Haddara v R, Redlich and Weinberg JJA expressed the view that the ‘general discretion is an indispensable tool if a trial judge is to have the capacity in all the circumstances to discharge their overriding duty of ensuring that the accused receives a fair trial.’[67] In their judgment they discussed a number of cases concerning the common law discretion including Kuruma v The Queen,[68] where Lord Goddard CJ, speaking for the Privy Council, stated:
No doubt in a criminal case the judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused… If, for instance, some admission of some piece of evidence, eg, a document, had been obtained from a defendant by a trick, no doubt the judge might properly rule it out.[69]
[67]Ibid 59 [16].
[68]Kuruma v The Queen [1955] AC 197.
[69]Ibid 204 quoted in Haddara v R (2014) 43 VR 53, 60 [18].
DM contends that evidence of the alleged admission should be excluded relying upon the considerations he identified in relation to s 138 of the Evidence Act. However, for the purposes of this residual discretion he also relies upon an additional and separate factor, which is set out in his written submissions as follows:
[T]he accused denies the admission, accordingly if the statement is permitted to go into evidence then this compels the Accused to cross-examine his own mother and challenge her credibility. Further, it requires the Accused to mount an argument that his mother — in circumstances where she was called to assist him — is dishonest.
It is certainly the case that from time to time family members will be required to give evidence against one another. The existence of s.18 of the Act seeks to recognise and alleviate the issues around this. However, in this instance, recognising the devious manner HERBERT went about collecting the statement to require the Accused to adopt such a course as identified immediately above is unpalatable.
To reiterate this case involves a boy, under 18, speaking with his mother in a police station. Taking advantage of that to produce a statement is egregious to notions of fairness.
Especially, when this Honourable Court keeps in mind the observations of [the] Privy Council in Kuruma v The Queen and cited in Haddara.[70]
[70]DM’s Written Submissions, [62]–[65].
In this regard, DM particularly emphasises that the alleged admission was made by a child to his mother following direct questioning by his mother, in circumstances where she has been involved to safeguard his rights and ensure a proper understanding of the process of being questioned by police.
The prosecution submits that the same factors which inform the application of s 90 operate in the exercise of the Haddara discretion and for the same reasons as it contends under that ground there is no unfairness to DM in the use of the alleged admission at his trial. Accordingly, the evidence ought not be excluded.
For the same reasons, as those expressed in relation to ss 138 and 90, I do not consider that admission of the evidence would result in any kind of unfairness which would risk depriving DM of a fair trial. As such I will not exercise the residual discretion to exclude the evidence of the alleged admission.
That admission of the evidence may require DM to challenge his mother’s credibility in cross-examination is not productive of unfairness justifying the exercise of the discretion. Section 18 of the Evidence Act already provides a mechanism to avoid damage to familial relationships and if AG chooses not to make an objection under this section, after being properly advised, then she would be aware of the potential consequences.
Conclusion
For the reasons above, I will not exclude AG’s evidence of the alleged admission under ss 90 or 138 of the Evidence Act nor the Haddara discretion.
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