Judgment Suppressed - [2007] WASC 262

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- 'G' (A CHILD) [2007] WASC 262

CORAM: SIMMONDS J

HEARD: 27 SEPTEMBER, 5 & 9 OCTOBER 2007

DELIVERED : 9 OCTOBER 2007

PUBLISHED : 1 NOVEMBER 2007

FILE NO/S: INS 126 of 2006

BETWEEN: THE STATE OF WESTERN AUSTRALIA
State
AND
ABDIHAKIM MOHAMED
M (A CHILD)
HAFTEAB TEKLE
G (A CHILD)
Accused

Catchwords:

Evidence - Application for exclusion of video record of interview of accused - Accused a person 15 years old - Independent person who was present for interview and who was mother of accused having limited English - Accused had been 5 years old when he moved to Australia with mother who was refugee

Whether confessional material was voluntary - Whether will of accused overborne - Whether it would be unfair to accused to use confessional material in evidence against him - Whether independent person suitable for task expected - Significance of unsuitability for what happened at interview

Legislation:

Young Offenders Act 1994 (WA), s 8, s 20

Result:

Evidence excluded

Category: B

Representation:

Counsel:

State:     Mr D W A MacLean
Accused:     No appearance
Second Accused           :     No appearance
Third Accused              :     No appearance
Fourth Accused             :     Mrs M A Loveday

Solicitors:

State:     Director of Public Prosecutions (WA)
Accused:     No appearance
Second Accused           :     No appearance
Third Accused              :     No appearance
Fourth Accused             :     Marilyn Loveday

Case(s) referred to in judgment(s):

Binning v Lehman [2002] WASCA 255
Cox v The Queen [2002] WASCA 358
Director of Public Prosecutions v Toomalatai (2006) 13 VR 319
Em v The Queen [2007] HCA 46
Foster v The Queen (1992) 113 ALR 1
Frijaf v The Queen [1982] WAR 128
R v Coe [1997] 2 Qd R 465
R v H (A Child) (1996) 85 A Crim R 481
R v Lee (1950) 82 CLR 133
R v Peters (1987) 23 A Crim R 451
R v Phung [2001] NSWSC 115
R v Swaffield (1998) 192 CLR 159
'T' (A Child) v Wornes (Unreported, WASC, Library No 970486, 25 September 1997)
Tofilau v The Queen [2007] HCA 39
Vale v The Queen [2001] WASCA 21

SIMMONDS J:

Introduction

This is an application in relation to the trial of four accused, which is listed to commence on 5 November 2007.
The trial is listed for three weeks from that date. There are five charges, against all four accused, of aggravated armed robbery, each committed in King's Park, but against different victims, three on 14 April 2006 in King's Park, and two on 20 April 2006. The alleged circumstance of aggravation in each case is that the accused were in company with each other.
The application is for the exclusion of a video record of interview with one of the accused.
At the hearing on 5 October 2007, I ruled that the evidence should be excluded. I said I would provide reasons subsequently. These are those reasons.

The basis for the present application

One of the accused, G (a child) (from this point, G), was interviewed by two detectives on Saturday 22 April 2006, starting at about 8.11 pm, in the presence of his mother (incorrectly identified in the interview as his stepmother). The interview was video recorded. The interview ran for about 50 minutes. At the outset of the interview and in response to its first substantive question G admitted his involvement in a robbery in King's Park between about 8 pm and 9 pm on 13 April 2006. He referred to this night as 'the Thursday night. Not this Thursday night that just went by, the other Thursday night. Like not this week, last week (indistinct)'. That was an admission of an offence which is not the subject of the present charges. He denied involvement in any other robberies. He subsequently elaborated on his involvement in the robbery on 13 April.
Some hours earlier G had been taken into custody. There was no suggestion before me that he was not lawfully in custody in relation to matters that included the present charges.
Some time not long after he was taken into custody, he was permitted to contact his mother, a Ms A. She came to the Perth City Detectives Office, arriving at or about 6 pm.
It is not in contest that at that time Ms A had been fasting in connection with the observances of her church. There was no evidence before me, however, that any of the police at any material time were aware of that state of affairs.
Nor is it in contest that Ms A had some, but limited, English language skills. Police were aware she had limited English language skills. Ms A is a native speaker of an African language, which G also speaks. He arrived in this country with his mother and his siblings when he was five years old. The basis for Ms A's admission was that she was a refugee.
At the time of the interview G was 15 years and 10 months old. He had received his primary and secondary education in this country, and was in Year 10 at a secondary college in Perth at the time of the interview.
There was evidence, not contested before me, that not long after her arrival at the Perth Detectives Office Ms A inquired why she had been asked to drive there. She understood the reply as that she had to remain as her son was there. She asked to speak with an interpreter from her 'cult', and gave police the telephone contact details for an interpreter. She was able to speak with that person. I will say more about what she understood that person said to her below.
It was not in contest before me that the police did not provide to Ms A any information as to her role in the interview that about two hours later was conducted with her son in her presence. Nor was there an interpreter present during that interview, although as I have indicated her son could speak his mother's language. At a number of points early in the interview her son had exchanges with his mother in that language. Also, Ms A said a number of words in English to the interviewers, again early in the interview. However, for the remainder of the interview, her son said nothing to Ms A, and she said nothing to him or the interviewers. She did, however, from time appear to react either to what was said in the interview, or to her situation.
The bases for the objection to any receipt into evidence of any of the video record of interview with G are, as I understand those bases, two.
One basis is the involuntariness of the confessional material in the video recorded interview.
The other basis is that the court should exercise its discretion to exclude such material because its use at the trial would be unfair to G.

The applicable principles

There is a recent review of the principles of law applicable to the bases for objection in this case in Tofilau v The Queen [2007] HCA 39, [245] - [248] (Callinan, Heydon and Crennan JJ) (footnotes omitted):
In order to appreciate the significance of the appellants' arguments, it is desirable to place them in the context of the law relating to the admissibility of confessions as a whole. An admission by an accused person 'must be voluntary in order to be admissible'…. It is common to divide involuntary statements into two categories. One concerns the 'inducement rule': an admission by an accused person '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'… The other category concerns those caught by the 'basal involuntariness' rule, to be discussed below... But even if an admission is voluntary, it may be excluded on 'discretionary' grounds. In R v Swaffield … Toohey, Gaudron and Gummow JJ grouped these 'discretionary' grounds under three heads.
The first in time to emerge was that which was stated in the cases summarised by Lord Sumner delivering the advice of their Lordships in Ibrahim v The King … about impropriety in police questioning. The correctness of excluding evidence on this ground in Victoria was left open in Cornelius v The King …, but was approved for New South Wales by Dixon J in McDermott v The King … Dixon J said of it:
"there has arisen almost in our own time a practice in England of excluding confessional statements made to officers of police if it is considered upon a review of all the circumstances that they have been obtained in an improper manner."
In R v Lee … Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ declined to interfere with the Victorian Full Court's recognition of the discretion in that State. The application of this head was given fresh life from 1982, for in Cleland v The Queen … the discretion to exclude illegally or improperly obtained real evidence enunciated in Bunning v Cross … was applied to confessions. It has since been common to refer to this as a 'policy' discretion.
The second 'discretionary' head to emerge arose where it could be said of a voluntary confession that 'in all the circumstances it would be unfair to use it in evidence against' G. The words are those of Latham CJ in McDermott v The King … summarising R v Jeffries …, but they were approved by Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ in R v Lee …. This is commonly called a 'fairness' discretion.
The third 'discretionary' head to emerge was the application to confessions of the 'discretion' to exclude evidence the prejudicial impact of which is greater than its probative value, which had begun to be recognised in R v Christie … and continued to develop in various fields of the law of evidence throughout the 20th century. The application of that principle to confessions, but not its description as a 'discretion', was accepted as legitimate by Toohey, Gaudron and Gummow JJ in R v Swaffield…
See also as to the first two 'discretionary' grounds Em v The Queen [2007] HCA 46, [54] (Gleeson CJ and Heydon J); Vale v The Queen [2001] WASCA 21, [16] – [26] (Malcolm CJ), [59] (Ipp J) and [60] (Wallwork J).
I understood the discretionary ground relied upon to be the second discretionary ground, the fairness ground, above. I did not understand the objections in this case to be based on the first or third discretionary ground.
However, I further note Binning v Lehman [2002] WASCA 255, Wheeler J at [12], where her Honour indicated that on the authorities the issues under the first two discretionary grounds tend to overlap in many cases. I note this is particularly the case where unlawful or improper conduct of the police is relied upon. That is because under the fairness' discretion the court in considering whether it would be unfair to an accused to use their statements against them should have regard to 'the conduct of the police and all the circumstances of the case': R v Lee (1950) 82 CLR 133, 154 (Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ). I will say something on that account later in these reasons.
It is trite law that, if the issue is properly raised, the burden of proof on the ground of voluntariness rests with the prosecution, and if voluntariness is not shown the confessional material must be excluded: see LexisNexis Butterworths, Criminal Law Western Australia (at 25 October 2007) [99,085.15]. It was not contended by the prosecution in this case that the issue of voluntariness was not properly raised.
It is further trite law that the burden of persuasion of the court that the discretion to exclude for unfairness should be exercised is on the defence: Criminal Law Western Australia [99,085.15]. Counsel for the defence did not contend otherwise. I proceed then to consider the two bases for exclusion contended for by the defence.

Whether voluntariness has been shown

I did not understand it to be contended by the defence that any threat, inducement or promise had been used by the police in or in relation to the interview to procure the confessional material the video record contained. Nor did I find any such police conduct in the interview when I reviewed it after the initial viewing of it at the hearing before me, and when I reviewed the transcript of the interview.
However, as the quotation from Tofilau indicates, voluntariness subsumes more than the absence of any threat, inducement or promise. It also includes other conduct by which the will of G is overborne.
A commonly cited description of the conduct caught is in Tofilau, [327] (Cullinan, Heydon and Crennan JJ):
In R v Lee Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ said, adopting the words of Dixon J in McDermott v The King [[1948] HCA 23; (1948) 76 CLR 501 at 511], that an admission by an accused person is not admissible[[1950] HCA 25; (1950) 82 CLR 133 at 144]:
"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 G has been overborne or his statement made as the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure."
Whether or not the latter part of that statement exhausts the situations where the will of G has been overborne may not be altogether clear from Tofilau. It would appear that in least in some cases of trickery or deception there may be scope for a conclusion that the will of a person being interviewed by the police was overborne: see [359] ‑ [360] (Callinan, Heydon J and Crennan JJ); compare [19] (Gleeson CJ).
However, in this case I do not consider that G's will was overborne.
My review of the video record of interview and its transcript does not indicate responses from G to his interviewers' questions suggesting that his will was overborne.
As will become apparent, he was able to resist propositions put to him when he considered that to be appropriate, and decline to comment on one matter at the end of the interview. When the interviewing police officers, at the outset of the interview, cautioned him that he did not have to say anything unless he wished to, and anything he did say would be recorded and might be used in evidence against him, he appears to me to indicate his understanding of the caution. He did this in two ways. He described the caution in somewhat different language from that used with him but to the same effect, in reflecting it back to his interviewers, and, it would appear, in seeking to interpret what was said to him for his mother's benefit (ts 4 ‑ 5). Further at the end of the interview, when asked if he wanted to say 'anything else' about his interview, he appears to apply what he had been told some time earlier in the interview: he says 'no comment' (ts 46), which I take as an application of what the caution indicated to him he could do.
While the contrary was put to me, I do not see this material as parroting what he was told.
It was not suggested there was any trickery or deception practised on G in this case, and I could find no evidence of it in the video record of interview. I note that, notwithstanding what one of the interviewers said in the interview, that once the paperwork was completed after the end of the interview, 'then you two can leave', there is evidence Ms A at least did not leave the police station until 6 am the following day. However, there is no other evidence of any deception in the interview, nor is it clear that this was a deception, without more evidence as to what caused the delay.
As to evidence of 'duress, intimidation, persistent importunity or sustained or undue insistence or pressure', counsel for the defence directed my attention to the following exchange at the end of the interview (ts 44 ‑ 46):
Q. Okay. Um, all right. Just go through this to make sure we've covered everything. Okay. Ah, just ask you has the interview been of your own free will?
A. My interview?
Q. No, has this interview ‑ talking to us ‑ has that been ‑ have you done it freely ‑ have you done it of your own free will?
A. Well, I've done it and in a kind of way I've been pressured.
Q. Okay, tell me how you've been pressured.
A. This is like the way that you guys like every time I'm trying' to talk to you and look in your eyes, you know ---
DET SNR CONST MCNEVIN: Oh, okay.
DET SGT LETESSIA: All right. Okay.
DET SNR CONST MCNEVIN: So you mean ‑ sorry. So you mean that the way – the way that we look at you in the interview ---
A. Yeah, yeah, the interview ---
Q. --- um, is it because we're staring at you?
A. Yeah, it's just like I'm feeling all pressured, you know?
Q. I understand what you're saying. I think ‑ I think probably because we ‑ the interviews we're used to looking people in the eye.
A. Yep.
Q. An [sic] sometimes people do feel under pressure. Um, what ‑ what ‑ what the Sarg was tryin' to say is that, um, did you feel threatened by that at all as in physically threatened like you were in danger?
A. Oh, no, no.
Q. Okay. You ‑ you just felt ‑ are you saying that you just felt a bit nervous because we were looking at you ---
A. Yeah, cos the way that ‑ yeah.
DET SGT LETESSIA: Okay.
DET SNR CONST MCNEVIN: Sorry, mate.
DET SGT LETESSIA: All right. Nah, that's okay. Um, all right have we promised you anything for ‑ for talking to us? Have we promised you anything in return for talking to us?
A. (No audible response)
Q. You know, have we said, um, look here we'll give you something if you talk to us. Have we offered to pay you anything for talking with us?
A. No, no, no. Just it was ‑ the ‑ yeah, if I come out and tell exactly, you know, the truth and everything it'll be much better off (indistinct)
Q. Yeah, that ‑ that's fine.
DET SNR CONST MCNEVIN: It is true. Exactly.
DET SGT LETESSIA: As I said ‑ I said earlier, you tell the truth and the truth comes out then, um, ‑ but you ‑ you knew ‑ you knew before you started talking that you didn't have to talk to us didn't you?
A. Yeah, I knew, yeah. I'm not saying that.
Q. Okay. Um, have you got any complaints about the way we treated you today?
A. Ah, no, no.
Counsel for the defence put to me that I should weigh what was said in that exchange with the fact of G's ethnic and social background, his age, his lack of a police record (suggesting this was his first encounter with police questioning of this sort), and the position of physical and social (including racial) authority occupied by the police interviewing him.
Undoubtedly, particular care must be taken to determine, in light of a child's lesser understanding of their rights and lesser capacity to protect themself, whether or not the statements made by a child under police questioning were voluntary: see 'T' (A Child) v Wornes (Unreported, WASC, Library No 970486, 25 September 1997), at 13 (Walsh J).
However, I have already indicated why I consider G understood, and was able to act on his understanding of, the caution he received.
Further, I consider I should weigh his origins and social background having regard to the fact he had been in this country since the age of 5, and had received his primary and secondary education here. Further, he was 15 years and 10 months old at the time of the questioning, and his English, intellectual and social skills were not, it seems to me, deficient for the purpose of understanding and responding to the questioning he received.
In addition, the indications in the video record of interview were that he was not intimidated, under duress, persistently importuned or unduly pressured.
For the purpose of that conclusion, I note that when it was put to him that others had said he had been talking about doing more than one robbery, and that he had said he had done five robberies, he clearly denied that he had said any such things (ts 14 ‑ 15).
The matter was returned to a short time later, after G had indicated he had been asked by another several times to come 'gangking' with him, but only gone once, and G had said 'like first the one that we did he ‑ I came' (ts 17). G was asked by one of the interviewers whether he would 'tell me about the other times' (ts 17). G then had no obvious difficulty clarifying that he meant the first and only time he had come 'gangking' (ts 17 ‑ 18).

The matter was returned to again, when G had put to him that G's use of a 'nickname' like 'gangking' to refer to robberies indicated he had 'knowledge of it previously' (ts 24). However, again G emphasised he had not done a 'gangking' more than once (ts 24 ‑ 25).
He was also able to be indicate, when it was put to him he was an active participant in the robbery he did commit, on the 'gangking' he did do, that he 'just came', and that he had not seen himself playing a role as a lookout for all of those involved (ts 26 ‑ 27).
While I do not consider that this material indicates the will of G was overborne, I do consider it contains troubling lines of questioning. I will have occasion to return to it when I consider the unfairness discretion.
I conclude that the prosecution has discharged its burden of proof in relation to the issue of voluntariness.

Whether the confessional material should be excluded in the exercise of the fairness discretion

For the purpose of persuading me that it would be unfair in all of the circumstances to use the confessional material in evidence against G, counsel for the defence relied upon what she said was the general policy of the law in this state, that police questioning of young people under 18 should, absent special circumstances at least, only take place in accordance with principles like those embodied in the Commissioner of Police's Manual Operational Procedures (the COP's Manual), in the procedures set out in section OP‑24, Juvenile Offenders, OP-24 (the Procedures).
I was provided with a copy of the Procedures (Exhibit VD2). The Procedures caution that unless an 'independent person' was 'present' any 'statement, confession, admission or information given to a police officer by a young person who is party to criminal proceedings may be held inadmissible in court'.
It was not in contest that the Procedures had been complied with at least to the extent that police had approached G for him to identify an 'independent person' for the purposes of an interview with him, that Ms A was a person to whom G directed police, and that Ms A was qualified under the Procedures as an 'independent person', being 'a person responsible for the young person'. Shortly I will return to the question whether Ms A was nonetheless not an 'independent person' for other reasons.
It was also not in contest that the Procedures had not been complied with, in at least one respect. That was the provision prior to the interview to the 'independent person' of a copy of 'A guide for independent persons at police interviews'. A 'sample' is included in the Procedures. Although the 'sample' is not part of Exhibit VD2, a single page document headed 'Guide for Independent Persons prior to Interview' was provided to me by the defence in her closing without objection from counsel for the prosecution. Indeed I understood it was common ground that that single page document was that 'sample' (the Guide).
I also understood the evidence of one of the interviewers, Detective Senior Constable Allan McNevin, to be that he had not himself, and was not aware any one else had, provided to Ms A prior to the interview any information of the sort in the Guide in any other way. Detective Senior Constable McNevin was one of the two witnesses who gave evidence before me.
The Guide indicates it is 'to be read by independent persons prior to interview', and that a police officer 'will explain it to you, if required'. It is prefaced by the statement that the independent person's 'presence at this interview is to evidence the proper conduct of the interview'.
The Guide states among other things that the 'independent person' is to 'establish in yourself' a number of matters, including the independent person's 'ability to communicate with the young person', as well as the 'the young persons [sic] understanding of proceedings, charge/s, privacy if required'. The Guide also states 'the child is extended the right to' a number of things, including the '[r]ight to speak or remain silent except as provided in part 5 below'. That part indicates 'the obligations of child' to supply their name and address, answer any other statutory obligations or requirement and undergo any lawful examination or search.
The other relevant evidence before me, which is from Mrs A, who, testifying in large part through an interpreter, was the only other witness at the voir dire, is also that she was not provided prior to the interview with any of the information just described as set out in the Guide in any other way.
Counsel for the defence also submitted that the fact that Ms A had limited English language skills and a social background meant she could not, absent at least the support of an interpreter, provide the support to her son the 'independent person' under the Procedures including the Guide was meant to provide.
This submission drew on what was described as the wider context to the principles in the Procedures that underlay in particular the provisions for the 'independent person'. This resort to that wider context appeared to be in part at least because the Procedures do not make explicit the role of the 'independent person'.
My attention was drawn to the Australian Law Reform Commission, Seen and heard: priority for children in the legal process, Report 84 (1997), pars 18.9, 18.63 and 18.119, concerning Australia's international obligations in respect of its standards for juvenile justice, and what are described as strained relations between police and young people generally, and the special vulnerabilities for young people from non-English speaking backgrounds, and for those who are recent migrants or refugee children who have experienced abuse in their own countries.
I also note Report 84, [18.103], which indicates that provisions for 'interview friends' like those in the legislation elsewhere in Australia are to compensate for the 'disadvantage experienced by young people when being questioned by the police'. As I will indicate below, that legislation has parallels with, but also differs from, the Procedures, not least in being in statutory, rather than guideline, form.
However, in this case, I was not directed to any particular international obligation that had a bearing on the role of an 'independent person' in the questioning of a young person by police.
Further, there was no evidence that G had been involved in strained relations with the police in the past, or that he had seen others of his acquaintance so involved. Indeed, the defence reminded me he had no prior criminal record.
Also, G was not a recent migrant, nor was there evidence he had had experience of abuse, direct or vicarious, in his own country. It is true Ms A had come to this country as a refugee. However, when asked about her experience with figures of authority including police in her home country, she said she had had none, having been a 'housewife'.
However, counsel for the defence also drew my attention to the provisions of the Young Offenders Act 1994 (WA) concerning 'responsible adults', defined in s 3 as a 'parent, guardian or other person having responsibility for the day to care of the young person', with an exclusion it was not suggested to me was applicable.
I note that the only provision in the Young Offenders Act which appears to be directed to the role of the 'responsible adult' with possible application to police questioning (compare s 20) is s 8, which provides as follows:
While observing the general principles of juvenile justice as required by section 7, a person performing functions under this Act is also to have regard to the principles that ‑
(a)responsible adults have an important responsibility for the behaviour of young persons under their care;
(b)responsible adults should be involved in the disposition, by a court or otherwise, of allegations of offences by the young persons under their care and in their punishment or management as a result of having offended;
(c)a responsible adult should be notified as soon as practicable after a young person is taken into custody or otherwise dealt with under this Act and, if the young person is in custody, should be kept informed as to the whereabouts of the young person; and
(d)in determining the degree of responsibility expected of a responsible adult the age, intellectual and emotional maturity of the young person and the fact that the young person is in employment or is living independently shall be taken into account.
It might be suggested that the questioning of a young person is within s 8(b)'s 'the disposition … of allegations of offences by young persons under their care'. However, there is nothing in Young Offenders Act s 7 or elsewhere in the Act that makes explicit what form the involvement of the responsible adult in questioning should take.
Further, I note the provisions of s 8(d), on determining the degree of responsibility expected of a responsible adult. In this case, G had moved out of his mother's home at age 14, and gave the impression in his video record of interview, as indicated by his responses to the questioning I have earlier described, of not insignificant levels of intellectual and emotional maturity.
However, counsel for the defence directed me to authorities on legislation in New South Wales and Victoria which has parallels with the Procedures in this State.
That legislation, in Victoria, Crimes Act 1958 (Vic) (Victorian Act) s 464E(1), provides that police must not question a person under the age of 18 unless there is also present a parent or guardian, or, if a parent or guardian is not available, an independent person. This rule does not apply in the circumstances, in s 464E(2), where compliance would result in the escape of an accomplice, or 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.
The legislation, in New South Wales, Children (Criminal Proceedings) Act 1987 (NSW) (NSW Act) s 13(a), provides that
any statement, confession, admission or information made or given to a member of the police office by a child who is a party to criminal proceedings shall not be admitted in evidence in those proceedings
unless there was present, at the place where and time when the statement, confession, admission or information was made or given, a 'person responsible for the child' or any others referred to in the provision.
However, the statement, confession, admission or information may be admitted if the person acting judicially in the proceedings is satisfied there is 'proper and sufficient reason' for the absence of 'such an adult' and considers that 'in the particular circumstances of the case' the statement, confession, admission or information should be admitted in evidence: NSW Act s 13(b).
I note that these provisions, and in particular those of the NSW Act, are, altogether apart from being legislative provision, and not guidelines, are in rather stronger form than the Procedures, which indicate, as I have said, that, unless there is an independent person present, the 'statement, confession, admission or information' given to the police officer by a young person 'may be held inadmissible' (my emphasis). Examples are given of cases where notwithstanding the absence of the independent person 'the court may regard such evidence as admissible' (emphasis in the original) which include those provided for in the Victorian Act s 464E(2), but go further.
However, it appears to be well established that a failure to follow the guidelines like those in the Procedures may be relevant to the exercise of the unfairness discretion: see Cox v The Queen [2002] WASCA 358 at [54] (Olssen AUJ), [1] (Anderson J) and [2] (Templeman J). Indeed in that case, concerning an Aboriginal young person, one of the breaches of the guidelines of which the Court took account was the failure to supply that person's mother who attended the interview in question with a copy of the 'guidelines concerning her proper role, as envisaged by the so-called "Cop's Manual''': [18] (Olssen AUJ).
The position under the Victorian Act appears to be that breach of s 464E is relevant to the exercise of the fairness discretion: Director of Public Prosecutions v Toomalatai (2006) 13 VR 319, [48] (Bell J). The position under the NSW Act is of course stronger. However, as I will explain shortly, the authorities under that Act have been treated as relevant to the exercise of the unfairness discretion in Victoria.
I consider then that I can take account of the authorities on the New South Wales and Victorian provisions so far as they concern the role of the person the Procedures call the 'independent person' and the Young Offenders Act calls the 'responsible person'. That role was described in Toomalatai [61], [62] (Bell J: see also [63]), quoting from R v Phung [2001] NSWSC 115, [36] (Wood CJ at CL) and R v H (A Child) (1996) 85 A Crim R 481, 486 (Hidden J), as follows (footnotes omitted):
In R v Phung and Huynh, … 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. … 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."
In R v H (A Child), … 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."
The role of the independent person is thus an active, not a passive, one: Toomalatai[64].
Was Ms A 'suitable for the task expected' in this case?
On the evidence of both witnesses who testified to the matter, considered with the material in the video record of interview itself, the answer is, no. However, as I will indicate, I consider that it is the possible effect of that state of affairs on what happened at the interview that is decisive in this case.
Detective Senior Constable McNevin, who was one of the two police officers who conducted the interview in question, testified she presented to him as some one who did not have 'a great knowledge of English personally', although she 'could understand in brief'. This is consistent with the request made of G, by the other police officer, at the beginning of the interview, to explain to Ms A that there would be a recorded interview where G did not have to answer the questions asked. At the same time Ms A is shown in the video record responding immediately after the interpretation to the question 'do you understand that ‑ understand what we're doing?' without further exchange with her son, 'Yeah, we do'. Further, she is shown in that record able to give her name and address without interpretation by her son.
For the defence it was contended that she had insufficient English language skills to appreciate, during the interview, that her son had been taken into custody in connection with certain robberies. In her evidence she clearly and consistently denied any such appreciation, while also testifying that she had not been informed prior to the interview that it was to address those matters.
The prosecution called my attention to certain conduct of Ms A during the interview, both verbal (in her own language, which was interpreted by the interpreter sworn before me) and behavioural (or 'body language'). That conduct it was said showed she understood that her son was at the least being interviewed in connection with an offence or offences of the commission of which he was suspected.
I do not doubt that she was throughout the interview aware that her son was in some difficulty with the police, saying at one stage in her testimony 'when you are in a police station there is something ‑ because of a problem there is some sort of' and later, saying of her son, 'if he didn't do something wrong, how did he be there?' However, I consider it has been shown that she was not aware, at least until some time into the interview, of any thing as to the nature of the problem or wrongdoing with which the police believed he was associated. In particular, she was not aware until then it concerned events in King's Park, an aerial photograph of the relevant part of which was displayed during the interview, an aerial photograph which she testified she had noted at the time.
There was also evidence before me that Ms A had obtained a driver's licence in this State. However, that evidence did not in my view indicate anything of significance for my purposes as to Ms A's language skills, in view of the way in which Ms A said she had qualified for the licence, by recognition of diagrams, and by the use of her daughter as an interpreter. In any event, counsel for the prosecution did not press any argument otherwise.
There was no interpreter present at any time during G's interview. She testified that the telephone interpreter she spoke to did not describe what her son was in custody for, but only that Ms A had to remain with him.
On a few occasions, early in the interview, G spoke with his mother, apparently in their African language. The transcript indicates this by the legend 'A (In own language).' Such indications are, however, few, in an interview which ran over 46 pages of transcript, and concluded at about 9 pm. There are no such indications after page 9 of the transcript.
The corresponding passage for his mother in the transcript of the interview immediately following or preceding one of these few indications that G spoke their language with her appears alongside the entry '[Ms A]'.
One of the indications that he spoke his 'own language' with his mother followed an indication from the interviewers that G might wish to explain a matter raised by them with her.
The other indications appear to have been unprompted exchanges with his mother, apparently arising out of or at least coinciding with something the interviewers said to him. In some cases it appears G initiated the exchange. In other cases, his mother said something to him, to which he responded. One of those latter cases was when the interviewers asked G whether he understood he did not have to answer a question. The indications are in the transcript are that G understood what had been said to him, but that his mother first said something to him after the matter had been put to him by the interviewers.
There appear to be no examples of any more than very short exchanges by the mother with the interviewers, the longest of which I have already quoted.

It is evident from the transcript that G has a reasonable command of English, and it is common ground he is able to speak his mother's language. However, he is not a trained interpreter. In any event, there are no indications he interpreted any more than a small proportion of what was put to him during the interview, or indeed that he was in a position to do so. Nor as I have said are there any indications of many exchanges between him and his mother, and what there were took one of the forms indicated.
Further, as I have indicated, Ms A was fasting at the time of the interview, and that, combined with her concern for her daughter to which I also referred earlier, appears to explain much of her behaviour during the interview.
I do not doubt Ms A would have intervened to deal with any inappropriate conduct she saw the police display towards her son, as was considered to be the case with the independent person in Toomalatai [56]. However, the two first described conditions, as well as her lack of English fluency, and her lack of understanding of why she was present at the interview unrelieved by having an explanation prior to the interview of the sort called for by the Procedures, in my view severely impaired her capacity to appreciate what might have been inappropriate conduct, let alone to play an active role, in the interview. Had she at least that prior explanation of why she was present she would have been advised, among other things, to establish whether her son understood what he faced, prior to the commencement of the interview.
That impairment was also the worse for her, because, as she testified, she had had no prior exchanges with police, whether in this country or in her country of origin. This was except for a visit to a police station in this country when her son left home, when she inquired about what she could do to find out where he was. She testified she was told it was his right to live anywhere. It is not evident to me that any such exchange would have given her any information for the purposes of understanding why she had been asked to remain at the police station with her son on the occasion in question.
I do not consider the concatenation of circumstances I have just described necessarily prevented Ms A being an independent person for the purposes of the Procedures or a responsible person for the purposes of the Young Offenders Act: see Toomalai [56] (on the Victorian Act) and R v Coe [1997] 2 Qd R 465, 470 (on Queensland legislation similar to the Victorian Act).
However, I do consider that that concatenation meant she was not in a position prior to the commencement of the interview to advise G of his rights, including to remind him of his right to silence. Of course not long after that commencement she was advised, by her son, in her language, of that right. However, it was almost immediately after that exchange that her son responded to the first substantive question as follows (ts 5):
Q. Okay. Now as I said we're talking about some ‑ some robbery offences that happened in Kings Park. Can you tell us something about that?
A. Ah, all I know is I've done one robbery in Kings Park with a friend named, Haftam (indistinct).
However, as I have noted at a number of points the Procedures required the provision of the information in the Guide prior to the interview commencing.
I have already referred to a number of lines of questioning that appear to me to have proceeded out of the admission by G I have just quoted. Those questions appear to me to have a number of troubling elements, as counsel for the prosecution in fact conceded. I have already indicated that G maintained denials in the face of that questioning. However, in my view that questioning and those denials have the effect of reinforcing the possible relevance of the admission of an offence other than any of the offences charges for which he presently faces.
I do not suggest that Ms A, with a proper understanding of her role, would necessarily have been able to anticipate such questioning, and advise her son prior to the interview of his right not to make the admission on that account. Of course, an exercise of his right to silence so as not to make the admission quoted, for any reason, might have prevented those lines of questioning being undertaken. However, Ms A's lack of understanding of her role, unrelieved to the extent provided for by the Procedures, in my view meant she was in no position to assist him in that way. The effect on G was to make it that much more likely he would make the admission he did, leading to the lines of questioning referred to.
At the same time, it is not clear that the presence of G's mother made his position worse in other respects, as appears to have been the case with the independent persons in each of Toomalai and Cox. In both of those cases the independent person appears, either prior to or during the interview, to have adopted a substantially judgmental and admonitory position with respect to the alleged offending with the young person. There was no such evidence in this case, except for one exchange during the interview between Ms A and her son in which she admonishes him for putting her in the position in which she found herself in the police station. That appears to me to be a much less judgmental or admonitory position than in those two cases.
Nor is there any evidence that G was, age apart, specially vulnerable because of the way he had been dealt with by the police before the interview (compare Cox). As I have explained, I consider he had sufficient ability to understand and to apply the caution he received in the interview (compare Cox). Nor did the way he made the admission he did, or otherwise respond to questions, indicate I should doubt the reliability of what he said. I have already indicated why I did not consider he said what he did because of feeling intimidated by what he faced (compare Toomalatai). Nor was there any evidence here of a willingness to accede to what was put to him by police whether as persons in authority or otherwise. Indeed, as I have indicated, the evidence is otherwise.
It is trite law that the unfairness discretion is not to be seen as providing a sanction for non-compliance with procedural guidelines like those in the COP's Manual: see Lee 154.
However, such non-compliance, as I have indicated, may be relevant to the exercise of the fairness discretion, and the failure to provide the information to the independent person as called for under the Procedures is one example: Cox. The 'focus' of the fairness discretion, where such non‑compliance is relevant, will 'tend to be' on the effect of such non-compliance on the particular accused: Foster v The Queen (1992) 113 ALR 1, at 7 ‑ 8. I have already indicated the respect in which such non-compliance in all of the circumstances of this case could be said to have had an effect on G.
This last point in my view meets a submission made by counsel for the prosecution resting on Em [77] (Gleeson CJ). The effect of the statement there is, in my view, that it is not necessarily unfair to permit the reception of evidence from a person who to the knowledge of the police was operating under a disability. The Chief Justice points out that 'every day police officers take advantage of the ignorance or stupidity of person whom they eventually prosecute'. However, the situation in this case involved more than evidence received in similar circumstances, in view of the Procedures' application to this case.
The effect I have described was not on the reliability of what G said in the interview. Reliability is an important touchstone in the exercise of the fairness discretion; however, it is not the sole touchstone: R v Swaffield (1998) 192 CLR 159, [78] (Toohey, Gaudron and Gummow JJ); see also Em, [73] (Gleeson CJ).
In particular, admission of the material in an interview may put a person at a particular forensic disadvantage that is not easily remedied: Em [111] (Gleeson CJ). That appears to me to describe the effect on G in this case of the non-compliance in all of the circumstances of this case. I consider that there is no easy remedy in relation to the possible entry into evidence of the admission at the outset of the interview in this case, and of at least some of the subsequent exchanges with the police officers, such as that relating to requests made of G to participate in further robberies, as well as the elaborations on the earlier admission. Any such remedy would have to rely, it seems to me, largely on the exercise of the general discretion to exclude evidence whose probative value is outweighed by its prejudicial effect, to which I referred in the present context above. That would not be an 'easy' remedy.
There is a further consideration I must bear in mind in the exercise of the discretion, one emphasised by counsel for the prosecution. That consideration is in the frequently cited passage from Lee, at 155 that
it is in the interests of the community that all crimes should be fully investigated with the object of bringing malefactors to justice, and such investigations must not be unduly hampered.
However, it does not seem to me that the investigation of the present offences would be unduly hampered by the exclusion of the present interview. The confessional material in that interview relates to those offences at most only indirectly. I am not asked to consider whether that evidence should be excluded in any prosecution for the offence which G admitted committing, on 13 April 2006.
I have noted the Western Australian authority to which I was referred on the absence of an independent person, Frijaf v The Queen [1982] WAR 128. I also note R v Peters (1987) 23 A Crim R 451 (CCA WA). In both of those cases evidence of admissions from interviews where there was no independent person present was not excluded under the fairness discretion. In Frijaf, police had improperly isolated G from any such person. However, the 'cogency of the oral confessions' was 'vital' to the ultimate conviction of G of wilful murder: see 143 (Wallace J). I do not consider there is a potential for such cogency in respect of the evidence in this case. In Peters G declined an invitation to have his parents present at the interview, and there was evidence he was 'very calm and collected': see 453 (Burt CJ). There was no parallel set of circumstances in this case. Those cases show the highly fact‑dependent as well as discretionary character of the decision I am called upon to make under the present head.

My conclusion

My conclusion is that in the exercise of the fairness discretion I should exclude the confessional material in the video record of interview. I did not understand that, were that to be my conclusion, there would be any basis for admitting any of the remainder of that interview.
It is important I repeat that I did not reach that conclusion simply because there was non-compliance with the Procedures in the respect I have identified. I have also taken into account the possible significance of that non‑compliance for what happened in the interview.
I have noted the authority of Coe where evidence was excluded because the independent person was not a suitable person to discharge the task. The person concerned was present very reluctantly, and played no active role in the interview. She was, however, not a parent, but a justice of the peace. Coe, to the extent it relates to the fairness discretion, appears to me to rest more emphasis on that lack of suitability than I have done in this case. That difference may rest on the background to that case represented by the Queensland legislative prohibition of an interview without the presence of an independent person that has no counterpart in this state. However that may be, I have not had resort to the analysis in Coe to arrive at my conclusion.
My conclusion is also one not resting on the public policy discretion I previously referred to. As I have indicated, I did not understand that discretion to be invoked in this case. Had it been invoked, it is not clear that the strength of the public policy represented by the Procedures, which as I have indicated is not a legislative prohibition, in the application of that policy to this case, would have produced the same conclusion as I have reached. I do not, however, have to consider the point further.