Director of Public Prosecutions v Toomalatai
[2006] VSC 256
•15 May 2006
| IN THE SUPREME COURT OF VICTORIA | Not restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1534 of 2004
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| DEAN JUNIOR TOOMALATAI |
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JUDGE: | BELL J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 and 11 May 2006 | |
DATE OF JUDGMENT: | 15 May 2006 | |
CASE MAY BE CITED AS: | DPP v Toomalatai | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 256 | |
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CRIMINAL LAW – Ruling - Evidence – Exclusion of confessions and admissions – Voluntariness – Inducements “calculated to cause an untrue admission of guilt to be made” - Unfairness discretion – Interrogation of young people – Procedural rules – Consequences of breach for exercise of unfairness discretion - Independent person present at interview – Whether “person in authority” – Scope of role – Failing properly to perform role - Consequences for exercise of unfairness discretion – Police not at fault – Admissions made voluntarily but unreliably – Admissions excluded to ensure fair trial – Crimes Act 1958, s. 464E - Evidence Act 1958, s. 149.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr T Gyorffy with Mr P A D’Arcy | Mr S Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Defendant | Mr J Desmond | Doogue & O’Brien |
HIS HONOUR:
INTRODUCTION
In November 2000 a fight broke out between two groups of young people at a community festival in Broadmeadows. One person tragically died from his wounds and two others were injured.
The incident led to Dean Junior Toomalatai, among others, being charged with affray, manslaughter and intentionally or recklessly causing injury or serious injury. His trial before a jury, with two co-accused, is about to commence. This is my ruling on a preliminary issue about the admissibility or exclusion of evidence.
Mr Toomalatai was aged 16 years and 2 months at the time of the incident. Therefore, when interviewed by the police in January 2001, he was entitled to have a parent, guardian or independent person present.[1] Since his father would not be present, the police arranged for John Walker, a retired purchasing officer and Justice of the Peace, to attend. He was on a list of volunteers kept for this purpose.
[1]See s. 464E(1) of the Crimes Act 1958.
In Mr Walker’s presence the police properly cautioned Mr Toomalatai and then interviewed him. Just before the interview began, Mr Walker admonished Mr Toomalatai for being involved in the incident. He told him his father would be devastated and conveyed the impression it would be in his interests to speak to the police. During the interview Mr Toomalatai made gushing admissions about his role in the fight. Mr Walker was genuinely trying to help Mr Toomalatai but, in the interview, he just sat passively by.
Counsel for the prosecution want to rely on the admissions in Mr Toomalatai’s trial. Mr Toomalatai’s counsel opposes this course on two grounds. He submits the admissions were either made involuntarily, in which case they are not admissible, or it would be unfair to allow them to be used against Mr Toomalatai, in which case I should exercise my discretion to exclude them. Before ruling on these submissions, I will describe more fully what actually happened.
THE INTERVIEW
On the night concerned Mr Toomalatai left the scene of the incident. He was recognised at the Broadmeadows railway station on 8 January 2001 by a police officer who knew he was wanted for questioning. She cautioned him and brought him to the Broadmeadows police station where she cautioned him again.
The officer rang Mr Toomalatai’s father and asked him to come to the police station. When he arrived a little after 6.30pm she explained why his son was there and asked him to be present at an interview. Mr Toomalatai senior was a minister of religion who conducted services at his home. The father and son were estranged and I needn’t go into the reasons why. Mr Toomalatai senior was left alone with his son in the interview room. He told his son he was not happy with him. He came out a couple of minutes later then left the station, saying to the police he was unhappy and disappointed with his son, had a church service to conduct and could not attend the interview.
The officer rang Mr Walker and he came at about 7.30pm.
The police first took Mr Toomalatai, accompanied by Mr Walker, to his parents’ home to execute a search warrant. They were looking for clothing that might assist in the identification of his role in the incident. Mr Toomalatai’s parents and other family members were there when the search took place. Then, so Mr Toomalatai could be interviewed, he and Mr Walker were taken to the offices of the Homicide Squad in St Kilda Road, Melbourne.
Before the interview began, the police allowed Mr Walker to see Mr Toomalatai alone for about 20 minutes in an interview room. According to Mr Toomalatai’s evidence, Mr Walker did not explain he did not have to answer questions and had other rights. He did ask what had happened in the incident. Mr Walker said he had no recollection of the conversation but he would have told Mr Toomalatai he was there to help and support him like a parent and to give him moral support and reassurance in the interview. He told him he was a Justice of the Peace. Mr Toomalatai said in his evidence that he wasn’t sure but he thought being a Justice of the Peace meant Mr Walker was “like he was from authority sort of thing, people.”
The police had to tape-record the interview with Mr Toomalatai.[2] As is their practice in cases such as the present, they went further and video-taped it, for which I strongly commend them. What is now a practice should be a legislative requirement, but this is another matter.[3] It so happens the video machine was turned on early. It caught the last part of the conversation between Mr Walker and Mr Toomalatai. The video shows Mr Toomalatai sitting next to Mr Walker listening carefully while Mr Walker said: “Your father is a minister of religion and you’re getting into these sort of problems with people getting hurt, injured, even killed, your father would be devastated.” Mr Walker said something else but it is hard to make it out. It was something along the lines that Mr Toomalatai had to think about what Mr Walker was saying.
[2]Section 464H(1)(d) of the Crimes Act 1958.
[3]It is worth noting that not so long ago, before the days of tape and video-recording, it would have taken a preliminary hearing of about 4 days to make this ruling, at great expense to the parties and the community. Counsel for the parties would have cross-examined the witnesses at length to establish what happened in and before the interview. Under the new rules, I can hear or see for myself, on a tape or video-recording, what happened when the police interviewed the accused, and hear submissions from counsel for the parties about what should happen in consequence. Fortunately, in this case, the video machine having been turned on early, I could even hear and see for myself the important part of the conversation between the accused and the independent person. The preliminary hearing therefore took only about 1.5 days.
In his evidence Mr Walker explained he had received no training for his role, which I think is lamentable.[4] He was part of a voluntary welfare organisation that tried to help children in distress. He thought his role was “just to act as a parent, to sit in with Little Johnny and look after him through the interview. If he wants to know something about what he should or should not say or should not or – would you know just advise him and also of course – the police said that you know to keep the situation whereby you sit in the middle of it with the police on this side and the young person on this side. In other words keep them both happy.”
[4]The Australian Law Reform Commission, in Seen and Heard: Priority for Children in the Legal Process (Report No 84, Commonwealth of Australia, 1997), recommended: “Independent community members who are registered as potential interview friends should be given regular training in their responsibilities” (par 18.109).
The video-tape was played in court in Mr Walker’s presence. He saw himself making the remarks before the interview began. Counsel for Mr Toomalatai then asked him to comment on how he performed his role. The substance of his evidence was he had not performed it well. He agreed he formed a clear opinion and conclusion about Mr Toomalatai’s behaviour, which he conveyed to him. He agreed he admonished him, which was not his role or function, and he should not have done so. He deposed that, by the nature of his remarks to Mr Toomalatai, he was saying it would be in his interests to speak to the police when they asked him questions.
Mr Walker may not have performed well his duties as an independent person, for which his lack of training is the major explanation. However, he was a witness of exemplary honesty.
When Mr Toomalatai was interviewed by the police, he was properly cautioned and his rights were explained to him in full. There is nothing to suggest the police conducted themselves improperly. Nor is there any basis for suggesting the police asked Mr Walker to make the remarks to Mr Toomalatai. Nonetheless, in the interview, and in the face of supremely confident police questioning, Mr Toomalatai made damning admissions. Mr Walker just sat passively by, even when Mr Toomalatai displayed obvious confusion at some points.
When questioned about his role in the interview itself, Mr Walker was again very candid. He said he could have put his hand up and intervened but failed to do so. When taken to parts of the interview by way of example, he said they showed a parent or person such as him should have intervened. He blamed his inexperience but, as I have said, nobody trained him for this potentially difficult role.
To return to Mr Toomalatai, he migrated to Australia from Western Samoa when he was 11 years of age. In January 2001 he had been in Australia for about 5 years. His native language was Samoan, which he spoke at home. He completed education to year 10 but not year 11. He spoke English to his friends. In the video-tape and the evidence he gave before me, his English proficiency was no more than adequate. Many of the questions asked of him, both in the police interview and in his oral evidence, were too complex for him to grasp and had to be broken down. Mr Toomalatai had been previously interviewed by the police so he knew something of their interviewing procedures. He was not, however, a hardened delinquent.
Mr Toomalatai agreed he had been cautioned several times by the police, including in the interview. He knew he did not have to answer questions. He had been allowed to see his father and Mr Walker before the interview and to have the latter present at it. He did his best to tell the truth. When some things confused him, he was allowed to clarify them.
Mr Toomalatai deposed that, when he started the interview, he was concerned about the way his father had treated him earlier that night because “he wasn’t happy about it”. He was asked about how he reacted to Mr Walker’s pre-interview comments. He said the comments made him “worried and scared … because when I was talking to Mr Walker, he was saying like your father would be devastated and that, I got a bit worried you know.” What did he think Mr Walker wanted him to do? “Well I had the impression like he wanted me to tell you know the police what I said, what I told him, yes…” His evidence was that Mr Walker’s comments made him change what he was intending to do because he was worried and scared and concerned about his dad. Here is part of the evidence he gave in cross-examination:
“Did it make you do anything differently to what you intended to do?
---That’s correct, yes.
What?
---It just made me more nervous, you know, more nervous, that’s what it did.
Making you nervous is not doing anything different, what did it make you – did it change the way you were going to do about things at all?
---Yes it did.
How?
---When you – when people asking you question, like you know, you’re scared and – you don’t know what you’re saying, you know, you just – it comes out – just comes out of your mouth.
Are you saying that on that interview you didn’t know what you were saying?
---I’m not saying – I knew like, I’m not saying that but some of the things in there, I didn’t know what I was saying – when I looked at it, you know.”
Having been unexpectedly arrested waiting for a train, taken to a police station, rejected by his father, put with a person “from authority sort of thing” whom he didn’t know, witnessed a search under warrant at his parents’ home, taken to the Homicide Squad for questioning, admonished by the person supposedly supporting him and interviewed in a small room by a supremely confident detective in front of two other mature men, such was the submissive state of Mr Toomalatai, then not of a fixed address, not at school, not working and aged barely 16 years.
Let me now deal with the legal issues that spring from these facts.
WERE THE ADMISSIONS MADE VOLUNTARILY?
An involuntary admission is not admissible
A confession is not admissible in evidence against an accused person in a criminal trial unless it was made voluntarily. There are two limbs to the concept of what is voluntary: overbearing the will of the accused and the offering of an inducement by a person in authority. Here is a statement of the rules given by the High Court in R v Lee:[5]
“These rules, stated in abbreviated form, are – (1) that such a statement may not be admitted in evidence unless it is shown to have been voluntarily made in the sense that it has been made in the exercise of free choice and not because the will of the accused has been overborne or his statement made as the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure, and (2) that such a statement is not voluntary if it is preceded by an inducement, such as a threat or promise, held out by a person in authority, unless the inducement is shown to have been removed. These two ‘rules’ are, of course, well established, but it is important, we think, in this case to observe that they seem to be not really two independent and co-ordinate rules. There seems to be really one rule, the rule that a statement must be voluntary in order to be admissible. Any one of a variety of elements, including a threat or promise by a person in authority, will suffice to deprive it of a voluntary character.”
[5](1950) 82 CLR 133 at 144 per Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ.
The prosecution bears the onus of proving a disputed confession was made voluntarily on the balance of probabilities.[6]
[6]Wendo v R (1963) 109 CLR 559 at 572-573 per Taylor and Owen JJ; R v Warrell [1993] 1 VR 671 at 679.
The first rule: overbearing the will
Counsel for Mr Toomalatai relied mainly upon the first limb of the voluntariness rule. He submitted Mr Toomalatai’s will was overborne by the circumstances in which his interview with the police took place, especially given the influence of the pre-interview remarks made by Mr Walker. For a number of reasons I cannot accept this submission.
Mr Toomalatai did not himself depose that his interview was not voluntary. He agreed he was repeatedly cautioned by the police and I am satisfied he understood he did not have to answer questions. He voluntarily remained in the interview room. And he was able to clarify some matters he was confused about.
I accept Mr Toomalatai was in an inherently vulnerable position in the interview, particularly by virtue of his age. But the question whether a suspect’s admissions were made voluntarily is answered after “a careful assessment of the effect of the actual circumstances of a case upon the will of the particular accused.”[7] Therefore, “an inherent propensity to confess is not sufficient to deprive a confession of the essential element of voluntariness.”[8]
[7]Collins v R (1980) 31 ALR 257 at 307 per Brennan J.
[8]R v W [1988] 2 Qd R 308 at 312 per Dowsett J.
I have serious reservations about the reliability of the admissions made in the interview and the role of Mr Walker. Nonetheless, counsel for the prosecution have satisfied me according to the civil standard of proof that the admissions were made voluntarily. I will bring my reservations into account in exercising the judicial discretion.
The second rule: inducing a confession by a threat or promise
The second limb of the voluntariness rule is that a confession preceded by a current inducement by a person in authority is taken to be involuntary.[9] This is another formulation: “a threat or promise in relation to the charge held out by a person in authority [brings] a consequential confession under the heading of an involuntary statement.”[10] As Osborne J held in R v Tofilau,[11] the question whether a confession was preceded by such an inducement may itself determine the question of involuntariness. And the rule is not displaced because the inducement has been offered in circumstances where there has been no impropriety on the part of the police.[12]
[9]R v Lee (1950) 82 CLR 133 at 144 per Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ.
[10]Sinclair v R (1946) 73 CLR 316 at 334 per Dixon J.
[11](2003) 149 A Crim R 446 at 454.
[12]R v Gilbert (Supreme Court of Victoria, 22 July 1994, unreported) at 171 per Hampel J.
Counsel for the prosecution relied upon s.149 of the Evidence Act 1958. This provides no “confession” shall be rejected under the second rule unless the inducement “was really calculated to cause an untrue admission of guilt to be made…” The remarks of the independent person were certainly not so calculated in the present case.
The word “confession” is capable of having a broad and a narrow meaning. The broad meaning would include any admission of doing something connected with an alleged crime. The narrow meaning would include only an actual admission of guilt. Under the narrow meaning, quite simply, “every admission is not a confession.”[13] I can illustrate the distinction with a example. Someone may say “yes I stole the watch.” This is an actual admission of guilt and a confession under its narrow meaning. Someone may say “I was there but my mate did it.” This is only an admission of presence and could be a confession only under its broad meaning.
[13]Attorney-General for New South Wales v Martin (1909) 9 CLR 713 at 726 per Barton J.
The distinction is recognised in s. 464H of the Crimes Act. Depending on the circumstances, it requires a “confession or admission” (emphasis added) to be tape-recorded or video-taped.
I think we can see from the language of s. 149 that it applies only to apply to a confession in the sense of an admission of actual guilt. The section refers to a “confession” as an “admission of guilt”, making it clear the narrow meaning was the one intended. An admission of doing something connected with an alleged crime is different to an “admission of guilt” for committing the crime. This, no doubt, is the basis for a decision of the High Court, expressed in unequivocal language, that the section applies only where the confessions were “complete admissions of guilt.”[14] In the present case the admissions were something less. Therefore I must reject the submission of counsel for the prosecution that Mr Toomalatai must establish that the inducement - if there was one – was calculated in the specified sense.
[14]R v Lee (1950) 82 CLR 133 at 146 per Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ; see also R v Tofilau (2003) 149 A Crim R 446 at 462 per Osborn J (the point was not dealt with on appeal: see R v Tofilau [2006] VSCA 40 at par [179]); cf McKay v R (1935) 54 CLR 1 at 9 per Dixon J and Cornelius v R (1936) 55 CLR 235 at 246 per Dixon, Evatt and McTiernan JJ.
Was Mr Walker a person in authority for the purposes of the first rule? No narrow view is taken of who such a person may be.[15] However, the person, from the perspective of the confessionalist, must possess, by reason of some lawfully held or conferred status or relationship with him or her, the capacity to influence the prosecution or the manner in which he or she may be treated in respect of it.[16]
[15]R v Tofilau [2006] VSCA 40 at par [141] per Vincent JA, Callaway and Buchanan JJ A agreeing.
[16]At par [170]. This appears to be a citation with approval of R v Dixon (1992) 28 NSWLR 215 at 229 per Wood J. Osborn J following this decision at first instance in R v Tofilau (2003) 149 A Crim R 446 at 455.
Mr Walker was an independent person under s. 464E(1)(a) of the Crimes Act 1958. His presence at the police interview was required by this section. Mr Walker was not previously known to Mr Toomalatai; his involvement was brought about by the police. He was seen by Mr Toomalatai to be a person in authority. He was also a Justice of the Peace, although this just added weight to his status as an independent person.
A similar point has been considered before in cases involving young Aboriginals. In R v Gilbert,[17] the independent persons were members of a community justice panel maintained by the police in case they needed to be called in, quite like the case here. Hampel J held the persons “were and would be perceived by the accused to have been persons in authority.”[18] In R v Dixon,[19] a similar issue was confronted. Wood J held an Aboriginal liaison officer to be a person in authority. To his Honour, a person in authority was –
“any person concerned in the arrest, detention or examination of the accused, or who has an interest in respect of the offence, or who otherwise is seen by the accused by virtue of his position, as capable of influencing the course of the prosecution, or the manner in which he is treated in respect of it.”[20]
[17]R v Gilbert (Supreme Court of Victoria, unreported, 22 July 1994).
[18]At 170.
[19](1992) 28 NSWLR 215.
[20](1992) 28 NSWLR 215 at 229. Osborn J following this decision in R v Tofilau (2003) 149 A Crim R 446 at 455 and his decision was upheld on appeal: R V Tofilau [2006] VSCA 40.
I agree. And in his capacity as an independent person, Mr Walker answers this description. He was a person in authority for the purposes of the second rule.
If, as a person in authority, Mr Walker offered Mr Toomalatai an inducement that was current when he made the admissions, the confession was involuntary. Mr Walker made remarks in the pre-interview discussion that made Mr Toomalatai think it would be in his interests to speak to the police when they asked him questions. This seems to me to amount to an inducement that he would be treated more favourably by the police if he told them what he knew. His remarks about Mr Toomalatai’s father also strongly implied that answering questions would gain the favour, and stave off the disfavour, of his father. I do not think Mr Walker offered these inducements in any calculated way, but I think his remarks had an inducing effect.
It is one thing to advise young persons about to be interviewed that they have the right to remain silent and, if they are to say anything at all, they should tell the police the truth. This may constitute no inducement.[21] It is quite another to advise young persons it would be better for them to tell the police the truth when this advice carries the express or implied inducement that doing so may bring more favourable treatment or the avoidance of perceived harm.[22]
[21]See eg R v Vinh Chi Pham [2000] QSC 274 per Mackenzie J at [15] and [19]; R v Jefferson and others (1994) 99 Cr App R 13 at 28 per Watkins LJ, Auld and Scott Baker JJ.
[22]See R v Gilbert (Supreme Court of Victoria, 22 July 1994, unreported) per Hampel J at 170 and 174-175; Jarvis (1867) LR 1 CCR 96; R v Coley (1868) 10 Cox CC 536; R V Tofilau [2006] VSCA 40 at par [161]; cf Collins v R (1980) 31 ALR 257 at 310 per Brennan J.
For these reasons it seems to me that Mr Walker’s remarks did amount to a current inducement. If correct, this conclusion would make Mr Toomalatai’s confession involuntary. The evidence of Mr Toomalatai’s admissions would be inadmissible on this ground alone. But the submissions I received in the application for excluding the evidence were not sufficiently developed or answered on this basis. Also, I intend to rule in favour of excluding the evidence in the exercise of the judicial discretion. I will therefore refrain from formally determining this aspect of the application against the prosecution.
SHOULD THE ADMISSIONS BE EXCLUDED FROM EVIDENCE IN THE EXERCISE OF THE JUDICIAL DISCRETION?
The procedural rules for interviewing young people
Section 464E(1) of the Crimes Act states an important rule that must usually[23] be followed when police intend to interrogate a person in custody under the age of 18 years. The rule is that the police must not question the young person unless a parent or guardian of the person or, if a parent or guardian is not available, an independent person, is present (s. 464E(1)(a)). The young person must be given the opportunity to communicate privately with their parent, guardian or independent person (s. 464E(1)(b)).
[23]Under s. 464E(2), the rule does not apply where the police believe on reasonable grounds that compliance would result in the escape of an accomplice or the fabrication or destruction of evidence or the questioning is so urgent, having regard to the safety of other people, that it should not be delayed.
Section 464E was introduced into the Crimes Act in 1988 by the Crimes (Custody and Investigation) Act of that year as part of a package of reforms of fundamental importance to the fair conduct of police interrogations. Let me give four examples of other parts of the package. First, a suspect must to be informed of the circumstances of the offence that gave rise to their arrest[24] and of their right to remain silent.[25] Second, a suspect must usually[26] be informed of their right to communicate with a friend or relative and legal practitioner.[27] Third, a suspect who does not have sufficient knowledge of English must be given the assistance of an interpreter.[28] And fourth, subject to qualifications that needn’t trouble us, confessions and admissions of suspects must be taped or video-recorded.[29] Video-taping Mr Toomalatai’s interview was very important in the present case, as we have seen.
[24]Section 464A(2)(a).
[25]Section 464A(3).
[26]Under s. 464C(1)(c) and (d), as under s 464E(2), the rule does not apply where the police believe on reasonable grounds that compliance would result in the escape of an accomplice or the fabrication or destruction of evidence or the questioning is so urgent, having regard to the safety of other people, that it should not be delayed.
[27]Section 464C(1).
[28]Section 464D.
[29]Section 464H(1). The original requirement for tape-recording was extended to include video-recording where the facilities are available by s. 6 of the Crimes (Questioning of Suspects) Act 2000.
These reforms were introduced by the Victorian Parliament following the recommendations of the Consultative Committee on Police Powers of Investigation whose report was published in 1986. The Committee stated the object of the reforms was to introduce more flexibility into police investigations and to incorporate commensurate checks and balances to ensure the rights of individuals were recognised and safeguarded.[30] The Committee went on to state this:
“In any investigatory process the classes of people who are most vulnerable, are those with language problems, those who may be intellectually impaired, those who are young, those who are of low intelligence, those who while not guilty of the offence of which they are suspected may nonetheless have matters to hide … In addition, there is a need in any democratic society to guard against the over zealous exercise of power whether by police, other officials or government at large.”[31]
[30]Custody and Investigation, Report of the Consultative Committee on Police Powers of Investigation (Victorian Government Printer, 1986), par. 6.1.
[31]Custody and Investigation, par 6.2.
Special rules for the interrogation of young persons, such as those we now have here, can be found elsewhere in Australia[32] and in many places overseas, including the United Kingdom,[33] New Zealand[34] and Canada.[35] They all have as a common feature the requirement for the young person to have access to a parent or guardian, independent person, support person, appropriate adult or interview friend – the names may vary but the concept is essentially the same.
[32]See in detail below in this ruling.
[33]See eg Director of Public Prosecutions v Blake (1989) 89 Cr App R 179; R v Emmerson [1991] Crim LR 194; R v Morse and Ors [1991] Crim LR 195; R v W and Anor [1994] Crim LR 130; Jefferson, Skerritt, Keogh and Readman (1994) 99 Cr App R 13; Azhar Hussain and Sajid Mamood v Director of Public Prosecutions [1997] EWHC Admin 1115 (11 December 1997); H and M v Director of Public Prosecutions [1998] Crim LR 653.
[34]See R v Irwin [1992] 3 NZLR 119; R v Tepere [1997] 1 NZLR 341;
[35]See R v R (No 1) (1972) 9 CCC (2d) 274.
The reason for this requirement, as identified by the Australian Law Reform Commission, is to compensate for the inherent disadvantage experienced by young people when being interviewed by the police. The ALRC referred to a number of factors that contributed to this disadvantage, including a young person’s vulnerability to pressure, socialisation to agree with adult authority figures, lack of verbal fluency and tendency to make false confessions under expert or hostile questioning.[36]
[36]Australian Law Reform Commission, Seen and Heard: Priority for Children in the Legal Process (Report No 84, Commonwealth of Australia, 1997), par 18.103.
The courts have described the special vulnerability of young persons in similar terms.[37]
[37]See eg Dixon v McCarthy [1975] 1 NSWLR 617 at 640 per Yeldham J; M v AJ (1989) 44 A Crim R 373 at 381 per Neasey J; H (A Child) (1996) 85 A Crim R 481 at 484 - 486 per Hidden J (referring to several NSW authorities); R v Warren [1982] 2 NSWLR 360 at 367 per Lee J, Street CJ and Moffitt J agreeing; R v Phung and Huynh [2001] NSWSC 115 (26 February 2001) pars [34]-[36] per Wood CJ at CL; R v Cortez and ors (Supreme Court of New South Wales, 3 October 2002, unreported) per Dowd J at pars [28]–[34].
The judicial discretion to exclude evidence that would produce an unfair trial
Counsel for Mr Toomalatai relies upon the judicial discretion to exclude confessional evidence where it would be unfair to an accused person for the court to allow the evidence to be used against him or her in the trial.[38]
[38]R v Swaffield (1998) 192 CLR 159 at 189 per Toohey, Gaudron and Gummow JJ.
Under this principle, the unfairness must relate” to the right of an accused to a fair trial.”[39] So the question is not whether the police or other authorities have acted unfairly in obtaining the confessional statement. The question is whether the right of the accused person to a fair trial might be jeopardized because, for example, the statement was obtained in circumstances that affected its reliability.[40] Thus:
“If, by reason of the manner of the investigation, it is unfair to admit evidence of the confession, whether because the reliability of the confession has been made suspect or for any other reason, that evidence should be excluded.”[41]
[39]R v Swaffield (1998) 192 CLR 159 at 189.
[40]Van der Meer v R (1988) 62 ALJR 656 at 666 per Wilson, Dawson and Toohey JJ; R v Swaffield at 189.
[41]Duke v R (1989) 180 CLR 508 at 513 per Brennan J.
How failing to comply with a procedural rule affects the exercise of the unfairness discretion
Where procedural rules applying to the investigation of young persons or other disadvantaged suspects have not been complied with, this may be relevant to the exercise of the judicial discretion.[42] The failure of the police or other authorities to carry the protections in the rules into effect, coupled with other considerations, may require confessional evidence to be excluded.[43] The principle may be applicable even where the failure is not that of the police and no impropriety is alleged against them.[44] But, as Brennan J put it in Collins v R,[45] “the concept which governs the exercise of the discretion is unfairness, not contravention of the rules.”
[42]Pollard v R (1992) 176 CLR 177 at 184 per Mason CJ, 197 per Brennan, Dawson and Gaurdron JJ and 235 per McHugh J (referring to the Report of the Consultative Committee on Police Powers of Investigation); R v Warrell [1993] 1 VR 671 at 682 per Phillips CJ, Hampel and Vincent JJ: R v Li [1993] 2 VR 80 at 83 per Coldrey J (also referring to the Report of the Consultative Committee on Police Powers of Investigation).
[43]Pollard v R (1992) 176 CLR 177 at 235 per McHugh J; R v Percerep [1993] 2 VR 99 requires the seriousness of the breach to be taken into account (see at 120 per Phillips CJ, Marks and Southwell JJ).
[44]R v Phung and Huynh [2001] NSWSC 115 (26 February 2001) at pars [43]-[48] per Wood CJ at CL
[45](1980) 31 ALR 257 at 314.
In R v Warrell,[46] the breach was a failure by the police to follow guidelines that required an intellectually disabled suspect to speak privately with his independent person before the interview. He had little understanding of the role of the person. The Court of Criminal Appeal held that evidence of admissions he made in the interview should have been excluded at the trial. It dealt with the case against the background of the increased attention given to the special problems experienced by specific groups in the community in the investigative and legal process.[47] It noted the long acceptance of the need for special procedures to be adopted for the interrogation of young people.[48] It held:
“By reason of his disability the applicant was in a position of disadvantage compared with other members of the community when being interviewed by the police. On the evidence, he was effectively left without the assistance necessary if that disadvantage was to be addressed. The lost opportunity of a private conversation with the independent third person cannot now be remedied.”[49]
[46][1993] 1 VR 671.
[47]See at 681.
[48]See also at 681.
[49]At 682 per Phillips CJ, Hampel and Vincent JJ.
I have looked at the authorities to see when a breach of a procedural rule applying to the interrogation of children might result in the discretionary exclusion of a confession. Here is a short survey of the Australian cases.
Failing properly to interrogate children: a short survey of the Australian cases
In Frijaf v R,[50] the admissions were taken from a young person in the absence of a community welfare officer or other trusted person. The Court of Criminal Appeal of Western Australia held they were not improperly admitted in the trial even though the police acted improperly by isolating the accused from a parent-equivalent person in case he got advice not to speak.[51] The absence of a parent or person known to the young suspect was held not to require discretionary exclusion in Peters[52], another Western Australian case. Similarly, in R v Crawford,[53] the Court of Criminal Appeal of Queensland held the admissions of the young person were not improperly admitted. He had declined a police offer to be interviewed with his mother or other independent person and the admissions were not shown to be unreliable.[54] Finally, in R v JPD,[55] it was contended that s. 464E(1) of the Crimes Act had been breached because an independent person, not a parent or guardian, had been obtained. Vincent J held the confession to be voluntary and no aspect of the investigation warranted its discretionary exclusion.
[50][1982] WAR 128.
[51]See at 132 per Wickam J.
[52](1987) 23 A Crim R 451 per Burt CJ, Brinsden and Pidgeon JJ.
[53][1985] 2 Qd R 22.
[54]At 30 per Carter J; Campbell CJ and Matthews J agreeing.
[55][2001] VSC 202 (3 April 2001).
The admissions were excluded (on appeal) in Dixon v McCarthy[56] where boys aged 11 – 14 years were interviewed alone by the police who made only token attempts to find the parents. No independent person was present. In R v C (an infant),[57] the breach was the failure of the police to allow a young person aged 15 ½ years to be interviewed in his parents’ presence. Andrews J excluded the evidence of the young person’s confession because it was “of its nature … unreliable.”[58] In M v AJ,[59] the police visited a young person aged 13 years in his home. In breach of standing orders, they interviewed him in his parents’ absence. Neasey J held the admissions of the young person should have been excluded.[60] In T v Waye[61] a young person aged 14 years was interviewed alone by the police. The Court of Criminal Appeal of South Australia held the young person’s admissions were wrongly admitted into evidence:[62]
“Quite apart from any question of unreliability the questioning of the boy in the absence of his parents and without the support of any adult, deprived him effectively of any chance of asserting his legal right to refuse to answer questions and also of any realistic opportunity of checking the record of interview. Moreover the finding as to unreliability must have overlooked the tendency to unreliability which is inherent in a situation in which a child is questioned, in the absence of adult support, in a police station room in which he is alone with the interrogating officer.”
[56][1975] 1 NSWLR 617 at 641 per Yeldham J.
[57][1976] Qd R 341.
[58]At 343.
[59] (1989) 44 A Crim R 373 (Supreme Court of Tasmania).
[60]At 381.
[61](1983) 11 A Crim R 422.
[62]King CJ at 425, Johnston J agreeing and Mohr J dissenting.
The decisions in these cases cannot be easily reconciled. Each has to be seen in the context of the exercise of a discretionary judgement in the circumstances of the given case. An important consideration is the seriousness of the failure to comply with the procedural rule. Another is the extent to which the breach creates real doubts about the reliability of the young person’s admissions.
In the United Kingdom, failing to interrogate a child in accordance with the applicable procedural rules can result in discretionary exclusion. A significant body of authority has built up, mostly concerning the concept of the “appropriate adult” under the protective legislation.[63] Notably, the focus of the courts is strongly upon whether any failure was likely to make the admissions of the young person unreliable.[64]
[63]See Director of Public Prosecutions v Blake (1989) 89 Cr App R 179; R v Emmerson [1991] Crim LR 194; R v Morse and Ors [1991] Crim LR 195; R v W and Anor [1994] Crim LR 130; Jefferson, Skerritt, Keogh and Readman (1994) 99 Cr App R 13; Azhar Hussain and Sajid Mamood v Director of Public Prosecutions [1997] EWHC Admin 1115 (11 December 1997); H and M v Director of Public Prosecutions [1998] Crim LR 653.
[64]R v Cox [1991] Crim LR 276 per Lord Lane CJ, Rose and Pill JJ; R v Kenny [1994] Crim LR 284 at 285 per Hirst LJ, Ian Kennedy and Hidden JJ.
The independent person in the present case
In the present case, counsel for Mr Toomalatai submitted s. 464E(1)(a) was breached because the police did not try to get his mother to attend. I reject this submission. The police were entitled to assume she would not come given that her husband had refused to do so. It was open to them to think a parent was “not available” (s. 464E(1)(a)) and look for an independent person.
I have considered whether Mr Walker conducted himself in such a manner that he ceased to be an “independent person” (s. 464E(1)(b)). No doubt someone who starts out being independent can, by their conduct, become someone who is not. If this happens, the interview might cease to comply with the procedural rule that an independent person must be present. But this is not what happened in this case. Mr Walker was an independent person at all times. He may not have performed his role properly, but this did not turn him into a person who was not independent. If he had seen the police behave inappropriately towards Mr Toomalatai, I am sure he would have intervened. Therefore the interview did comply, at least in formal terms, with the requirement that an independent person be present.
We come now to the central issue in the case: should the evidence of Mr Toomalatai’s admissions be excluded because of the way Mr Walker conducted his role as an independent person?
It is first desirable to identify the role of an independent person. This question has not often been addressed in the Victorian cases but it has received very useful attention in other States.
What is the proper role of an independent person?
Section 13(1) of the Children (Criminal Proceedings) Act 1987 (NSW) creates procedural rules for the interrogation of children in similar terms to s. 464E of the Crimes Act. A person responsible for the child, such as a parent, or an adult with the child’s consent, has be present at the interview (s. 13(1)(a)). If they are not, any admission is not admissible, unless there was a proper and sufficient reason and the court, in its discretion, decides to admit it. This is only a summary of the rules but it will suffice for present purposes.
Although in New South Wales (as in Victoria) there is a requirement for the presence of a parent or independent person, the nature of their role is not spelt out. This has been determined in a series of cases in the Supreme Court of that State.
In R v Phung and Huynh,[65] Wood CJ at CL excluded evidence of the admissions of a young drug-affected person aged 17 years because, among other things, the independent person at his interview was himself young, of unknown proficiency in English and received no explanation of his role.[66] Here is his Honour’s description of the role of a support person:
“The role of the support person is to act as a check upon possible unfair 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.” [67]
[65][2001] NSWSC 115 (26 February 2001).
[66]See pars [40] and [50].
[67]At par [36].
In H (A Child),[68] Hidden J described the role thus:
“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.”[69]
[68](1996) 85 A Crim R 481 at 486.
[69]At 486.
These descriptions of the role of an independent person are equally applicable to the person who carries out this function in Victoria under s. 464E(1)(a) of the Crimes Act. There is no material difference between the legislation in New South Wales and Victoria in this regard. The position under the United Kingdom practice is virtually identical: the role envisaged is active, not simply that of an observer.[70]
[70]See eg DPP v Blake (1989) 89 Cr App R 179 at 185 per Auld J.
I have noted that a breach of a procedural rule governing the interrogation of a young person may bring about the discretionary exclusion of a confession. The failure of an independent person properly to carry out their role may bring about the same result. Again, here is a short survey of the decided cases.
Failing properly to perform the functions of an independent person: a short survey of the Australian cases
The admissions of the young person were not excluded in R v Vinh Chi Pham.[71] The independent person was the 24 year old brother of the accused and he was given information about his role by the police. He had time to read it and spoke privately with his brother before he was interviewed by the police. He told his brother to tell the truth because the police already knew everything. The police did not behave improperly in any way. Mackenzie J held: “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.”[72]
[71][2000] QSC 274 (4 August 2000).
[72]Par [19]. The decision is implicit authority for the proposition that the miscarriage of the role of the independent person is a basis for discretionary exclusion.
In R v AH[73] the independent person was a friend of the young person’s parents. She was told her role was to ensure the interview was conducted fairly but given no other information. She was not allowed to see him privately beforehand and was told not to interrupt or answer questions for the young person. French J was satisfied the young person’s admissions were voluntary. He held that there was nothing “in the circumstances in which the record of interview was obtained or conducted that would in anyway affect the reliability of the admissions made by the defendant.”[74]
[73](2000) 27 SR (WA) 134.
[74]At 146.
There have been several cases in which admissions have been excluded.
In R v Gilbert,[75]Hampel J excluded the admissions of a young Aboriginal suspect of less than normal intelligence. As I said earlier, the independent persons were members of a welfare organisation. They spoke with the young person before the interview and told him they couldn’t help him unless he told the truth. Hampel J held they were persons in authority who had offered the young person an inducement that was current when the admissions were made:
“It is clear, in my view, that although the accused realized that he did not have to answer questions, he would probably have concluded from what was said to him by Mr Ross that some help and assistance would be available if he told the truth both to Mr Ross and the police. He may well have even hoped that Mr Ross would be able to take him home ... I think what was said to him in these private conversations, in the circumstances in which he found himself, and given his age and intellectual capacity, in my view, very probably operated as an inducement to answer questions, despite the fact that he had been told, and I think understood, that he did not have to do so.” [76]
[75]Supreme Court of Victoria, 22 July 1994, unreported per Hampel J at 170 and 174-175.
[76]See at 172-174.
In R v W,[77] the young persons, who were also Aboriginal, were interviewed in the presence of two Justices of the Peace who were members of and closely associated with authority in the community. One of them was related by marriage to the complainant. They did not speak to the young persons during the interviews. Under the standing directions of the police, the young persons should have been interviewed in front of their parent, guardian or a nominated adult and an independent person concerned with the welfare of Aboriginals. Dowsett J held the Justices of the Peace were not independent: “I see no reason for thinking there was any particular confidence in either of them on the part of the accused … There is no reason to think any substantial support was derived by any of the accused from either man.”[78] Although the admissions were voluntary, and there was no deliberate misconduct by the police, the admissions would be excluded because “the unfairness here may affect the cogency of the evidence in that the question of reliability of an unfair confession will be in doubt.”[79]
[77][1988] 2 Qd R 308.
[78]R v W at 323 per Dowsett J.
[79]At 323.
Legislation passed in Queensland in 1992[80] required police interviews of young persons to take place in the presence of a parent or, as in R v C [81], a Justice of the Peace. There the Justice of the Peace was annoyed at being called out, said she was “a nervous wreck” by the time of her arrival, lacked a full understanding of the rights of the suspect, took two strong pain killers to get through the interview and was unable to give a reliable account of what took place![82] The Court of Appeal held any deficiency in the role played by the adult person, who, under the legislation, was intended to support the child, fell for consideration in the exercise of the court’s exclusionary discretion.[83] I adopt this principle and will apply it in the present case. The admissions were excluded due to the cumulative shortcomings in the way the Justice of the Peace performed her assigned role, for otherwise the formal compliance with the legislation would have been “little more than a solemn farce.”[84]
[80]Juvenile Justice Act 1992 (Qld), s. 9E. The court retains the power of discretionary exclusion.
[81][1997] 2 Qd R 465.
[82]See at 471.
[83]At 470 per Fitzgerald P, McPherson JA and Helman J.
[84]At 471.
I have referred to R v Phung and Huynh[85] and the description of Wood CJ at CL of the support person under the legislation in New South Wales. His Honour excluded the admissions because the apparent failure of the authorities to secure compliance with the procedural rules gave rise to an unfairness that outweighed the powerful probative value of the admissions.[86]
[85][2001] NSWSC 115 (26 February 2001).
[86]At par [59].
I have also referred the statement of Hidden J in H (A Child)[87] on the same subject. In that case the police spoke to the young person at the scene of an alleged crime in the absence of an adult. Then they interviewed him at a police station. They allowed his father and sister to be present, if they did not speak “out of turn”, which meant they had to be silent observers. The father said something insignificant and was removed.[88] With him present, the interview satisfied the procedural rules; with only the sister present, it did not.[89] Hidden J held the young person’s admissions had to be excluded.
[87](1996) 85 A Crim R 481.
[88]At 486.
[89]Section 13(1)(a) of the Children (Criminal Proceedings )Act 1987 (NSW) required, in this case, the presence of either the father or, with the young person’s consent, the sister. The young person was never asked to give this consent (see at 485-6).
Finally there is the compelling judgment of Dowd J in R v Cortez and others.[90] Here, two young persons aged 17 years were facing charges of affray and murder. Their confessions were excluded due to inadequacies in the way they were interviewed. The inadequacies were similar and reference to only one interview will suffice. To comply with the rules in New South Wales, the police arranged for a retired head master to attend the interview. Dowd J was critical of this choice:
“A total stranger to a 17 year old young person, who is a retired head master, is not the sort of image that immediately leaps up as someone to whom that young person could relate, and particularly where the support person is such that he is not given time to relate, as he was not here, to the young person, and where he did not seem to understand as a person in loco parentis that he might intervene to warn someone who may be making the most damning of admissions.”[91]
[90]Supreme Court of New South Wales, 3 October 2002, unreported.
[91]Par [12]. In loco parentis means “in place of the parent”. See also the remarks of Dowsett J in an analogous context in R v W [1988] 2 Qd R 308 at 322: “[T]he role of the so-called prisoner’s friend is to encourage, support and explain. If he is to discharge this role, he must as far as possible be a person known and respected by the suspect. To impose a further authority figure upon an authority situation is more likely to accentuate than alleviate the position.” The significance of the choice of independent person has been emphasised by the ALRC (Report at pars 18.105-18.106).
The support person was not told of the seriousness of the charges and spent only a very short time with the young person beforehand. His Honour held “compliance of the police service with the intention of the legislature … is … extremely important.”[92] Yet the support person “demonstrated … a lamentable lack of understanding of the significance of the interview and did not seem to appreciate the full extent of [his] …proper role.”[93]
[92]Par [13].
[93]Par [12].
And, in words that, I regret to say, could equally be used about the present case, Dowd J was very critical of the failure of the support person to intervene in the interview:
“You do not need to know a lot about the law to know when a person is about to make damning admissions. You do not need to know a lot about the law to know that people have a right to remain silent, but nevertheless, young people do not necessarily know those entitlements as, indeed, do a lot of adults and the intention is to arm the young person with some protection.”[94]
[94]Par [13].
Why the admissions in the present case must be excluded
It is now time to apply these general principles about the unfairness discretion to the present case.
There can be no doubt that Mr Toomalatai was a vulnerable young person who needed the support of an independent person in his interview with the police. The lead-up to the interview - which I have already described - made him especially vulnerable to the inherent disadvantages that young people face in these situations.
Nor can there be any doubt that Mr Walker failed properly to perform his duty as an independent person. He has proved to be his own harshest critic in this regard, and the criticisms are due. The failings to which he has admitted were serious and had unfortunate consequences. The occasion required the independent person to be positive and active in assisting, protecting and supporting Mr Toomalatai. Yet Mr Walker was judgemental and admonishing before the interview, which is active in entirely the wrong way; he was passive in the interview itself, when his active support was most needed.
The unfortunate consequences were that Mr Walker’s presence added to the weight of disadvantage that Mr Toomalatai had to carry. Instead of bringing balance to the situation as an adult on Mr Toomalatai’s side, he became another adult before whom Mr Toomalatai was being held to account for his alleged conduct. His presence, which was intended to make things better for Mr Toomalatai, in fact made things worse.
These circumstances give rise to serious doubts in my mind about the reliability of Mr Toomalatai’s admissions. I believe Mr Toomalatai spoke the truth in his evidence when he said he was “scared”, “didn’t know what he was saying” and answers just came out of his mouth. It is impossible to know how much of the interview was accurate and how much of it was reckless blurting on which it would be a travesty of justice to rely.
Fairness is a two-way street and it is necessary to consider countervailing considerations. The point was made strongly by Vincent JA in the Court of Appeal in R v Tofilau.[95] To his Honour, the principles of voluntariness and fairness represented a carefully constructed fine balance between the rights and obligations of the State on the one hand and the individual on the other:
“On the one hand, there is an obvious need to bring to account those who have committed serious offences if the objectives of the criminal justice system are to be achieved and societal values vindicated, but, on the other, it cannot be forgotten that those values incorporate the rights of the individual and, in part define the nature of the relationship between the citizen and the community in which he or she resides. The balance is a delicate one and whether or not it has been maintained in a given case can only be determined after careful consideration of all of the circumstances relating to the particular matter.”[96]
[95][2006] VSCA 40.
[96]At par [152].
In the present case, the admissions, if accepted by the jury, would be important evidence against Mr Toomalatai, who is facing serious charges, including manslaughter. The complainants and their families, and the family of the deceased person, will feel strongly that the perpetrators should be brought to justice, which is the fundamental objective of the criminal justice system. The police did not behave improperly in any way. These considerations weigh heavily in favour of admitting evidence of the admissions so the jury can include it in their deliberations.
However, in my view, the failings of the independent person were so serious, the disadvantages faced by the young person in the interview were so great and the admissions made in the police interview are so unreliable that it would be unfair to allow evidence of the admissions to be used against the young person in the trial. I therefore exercise my judicial discretion to exclude evidence of Mr Toomalatai’s interview in the trial.
CONCLUSION
Mr Toomalatai – when a young person aged barely 16 years – was allegedly involved in a fight in which a person died and others were injured. He – and his co-accused – are about to face trial before a jury on charges that include affray, manslaughter and intentionally and recklessly causing serious injury.
Not long after the incident took place, Mr Toomalatai was interviewed by the police. In this interview, he made admissions which counsel for the prosecution seek to use against him in the trial. Counsel for Mr Toomalatai contends the admissions were not made voluntarily or, if they were, I should exercise my judicial discretion to exclude them as evidence. This discretion is available where allowing the evidence to be used against an accused person would produce an unfair trial.
Important rules govern the interrogation of young people because of the inherent disadvantages they face when being questioned by the police. One of these rules is that a parent, guardian or independent adult person should be present. The role of this person is intended to be positive and active, not that of a silent observer.
When Mr Toomalatai was interviewed, he had present an independent person who was taken from a list of volunteers kept by the police for this purpose. But before the interview began, the independent person admonished Mr Toomalatai for being involved in the incident. He told him his father – from whom he was estranged – would be devastated. He conveyed the impression it would be in his interests to speak to the police.
During the interview that followed shortly afterwards, Mr Toomalatai made admissions that were both gushing and reckless. The independent person just sat passively by. Mr Toomalatai gave evidence before me in a preliminary hearing. His testimony was he was “scared”, “didn’t know what he was saying” and answers just came out of this mouth. The independent person also gave evidence in the preliminary hearing. He made strong self-criticisms of the way he carried out his task. He accepted that, before the interview, he was judgemental and admonishing, and, during the interview, missed important opportunities to assist Mr Toomalatai that he should have taken up. In consequence, there are serious doubts about the reliability of the admissions made by Mr Toomalatai.
I have concluded that the admissions were made voluntarily but evidence of them should be excluded in the exercise of my judicial discretion. The failings of the independent person were so serious, the disadvantages faced by Mr Toomalatai in the interview were so great and the admissions made by him in the interview are so unreliable that it would be unfair to allow evidence of the admissions to be used against him in the trial. I acknowledge the admissions would be important evidence against Mr Toomalatai. The police themselves did not behave improperly in the interview. These considerations are greatly outweighed by the need to ensure that Mr Toomalatai is subjected to a fair trial.
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