Nicholls v Woods

[2000] WASCA 373

NICHOLLS -v- WOODS [2000] WASCA 373

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 373
Case No:	SJA:1144/2000	Heard:	16 NOVEMBER 2000
Coram:	MILLER J	Delivered:	1/12/00
No of pages:	11	Judgment Part:	1 of 1
Result:	Appeal allowed Decision of learned Magistrate set aside Ordered to be retried in the Children's Court before a different Magistrate
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Parties:	PETER JOHN NICHOLLS GERALD TREVOR WOODS
Catchwords:	Criminal law Children Whether requirement to caution Giving suspect opportunity to explain Whether confessional statement should have been excluded Whether need to contact responsible adult before any question asked
Legislation:	Weapons Act 1999, s 8(1)(a), s 8(2), s 10(3), s 10(5) Young Offenders Act 1999, s 20
Case References:	Azar v R (1991) 56 A Crim R 414 Baldock v Douglas (1953) 56 WALR 82 Dolan v The Queen (1992) 58 SASR 501 Harling v The Queen (1997) 94 A Crim R 437 R v Swaffield (1998) 192 CLR 159 Van der Meer v The Queen (1988) 62 ALJR 656 Ellery v R, unreported; SCt of WA; Library No 960598; 27 September 1996 Foster v The Queen (1993) 67 ALJR 550 Frijaf v R [1982] WAR 128 Holmes v R, unreported; SCt of WA; Library No 970457; 12 September 1997 Peters (1987) 23 A Crim R 451 R v Ireland (1970) 126 CLR 321 T (A Child) v Wornes, unreported; SCt of WA; Library No 970486; 25 September 1997

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : NICHOLLS -v- WOODS [2000] WASCA 373 CORAM : MILLER J HEARD : 16 NOVEMBER 2000 DELIVERED : 1 DECEMBER 2000 FILE NO/S : SJA 1144 of 2000 BETWEEN : PETER JOHN NICHOLLS

Appellant

AND

GERALD TREVOR WOODS
Respondent

Catchwords:

Criminal law - Children - Whether requirement to caution - Giving suspect opportunity to explain - Whether confessional statement should have been excluded - Whether need to contact responsible adult before any question asked

Legislation:

Weapons Act 1999, s 8(1)(a), s 8(2), s 10(3), s 10(5)

Young Offenders Act 1999, s 20

Result:

Appeal allowed

Decision of learned Magistrate set aside
Ordered to be retried in the Children's Court before a different Magistrate


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Representation:

Counsel:

Appellant : Mr B P King
Respondent : Mr I D Hope

Solicitors:

Appellant : State Crown Solicitor
Respondent : Aboriginal Legal Service

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

Azar v R (1991) 56 A Crim R 414
Baldock v Douglas (1953) 56 WALR 82
Dolan v The Queen (1992) 58 SASR 501
Harling v The Queen (1997) 94 A Crim R 437
R v Swaffield (1998) 192 CLR 159
Van der Meer v The Queen (1988) 62 ALJR 656

Case(s) also cited:

Ellery v R, unreported; SCt of WA; Library No 960598; 27 September 1996
Foster v The Queen (1993) 67 ALJR 550
Frijaf v R [1982] WAR 128
Holmes v R, unreported; SCt of WA; Library No 970457; 12 September 1997
Peters (1987) 23 A Crim R 451
R v Ireland (1970) 126 CLR 321
T (A Child) v Wornes, unreported; SCt of WA; Library No 970486; 25 September 1997

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1 MILLER J: The respondent was charged in the Children's Court at Perth that on 6 May 2000 at Forrestfield Police Station, not being a person exempted under s 10(3) or (5) of the Weapons Act 1999, he possessed an article, namely a folding bladed knife, not being a firearm, a prohibited weapon or a control weapon, with the intention of using it to cause any person to fear that someone would be injured or disabled by its use. The offence alleged was one against the provisions of s 8(1)(a) of the Weapons Act. The respondent pleaded not guilty to the charge and it came on for hearing before Mrs Gordon SM in the Children's Court at Perth on 9 August 2000.

2 The respondent was born 28 March 1984 and was thus just over the age of 16 years when the alleged offence occurred. He did not appear in the Children's Court on 9 August but was represented by counsel. A plea of not guilty was entered on his behalf and evidence adduced from two police officers. No evidence was adduced on behalf of the respondent and after hearing submissions the learned Magistrate proceeded to dismiss the complaint on the basis that no caution had been administered to the respondent before he made a statement to an investigating police officer in relation to the purpose for which he had a knife in his possession.

3 From the learned Magistrate's decision the respondent was on 11 September 2000 given leave to appeal to this Court. The grounds upon which leave was granted were that the learned Magistrate erred in law and in fact in the following respects:

"(a) in not considering the matters required to be considered by the court in deciding on the admissibility of evidence;

(b) in finding that the statement was inadmissible simply on the basis that no caution was given;

(c) in failing to consider whether the admission of the statement would amount to unfairness to the defendant;

(d) alternatively, finding that admission of the statement would cause unfairness to the defendant in the absence of any evidence to suggest that the statement was made in circumstances where its admission would be unfair; and

(e) in failing to find that the statement was admissible."

4 The evidence adduced at the hearing before the learned Magistrate was that of two police officers who had apprehended the respondent in the

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High Wycombe area. Constable Peter John Nicholls who was an officer stationed at Forrestfield Police Station, testified that at about 2.45pm on 6 May 2000 he and two other officers were on patrol in Sorenson Road, High Wycombe. Constable Nicholls saw the respondent, whose identity he knew. He stopped with the intention of speaking to him about a matter, but the respondent ran down Sorenson Road. He was chased by Constable Nicholls into and along Dundas Road and was eventually stopped by the officers in the patrol car who had also joined in the pursuit. He was arrested, handcuffed and conveyed to the Forrestfield Police Station where he was placed in a holding cell. There, Constable Nicholls asked the respondent to empty out his pockets and out of one of his pockets was produced a knife described as "a metal folded bladed knife approximately 100mm in length". The knife was tendered in evidence and was produced at the hearing before me. It is an "Excalibur" folding knife, the total length of which is 22cm. The blade when folded out is 10cm in length.

5 Constable Nicholls testified as to words which were then spoken by himself and the respondent. They were:

"I said to the defendant, 'What's the knife for?' The defendant replied, 'I need a knife because I've got enemies in High Wycombe'."

Constable Deslea Patricia Sloan, who also gave evidence, testified that she heard the conversation in these terms:

"Whilst at the charge counter I heard Constable Nicholls ask Gerald Woods to, 'Please empty your pockets'. And then very shortly after I heard Constable Nicholls say, 'What's this knife for?' Gerald Woods then said, 'I need this; I've got lots of enemies in High Wycombe'."

6 No objection was taken by counsel for the respondent to the evidence of either Nicholls or Sloan, but in submissions to the learned Magistrate counsel for the respondent raised the question of what was termed the "confession" of the respondent. He said (inter alia):

"MR HOPE: Your Worship, any confession is weightless if it's not preceded by a caution save for one exemption and that exemption is a situation in which a person blurts out a confession and then in the course of blurting it out, it is incumbent - as we all know - for the officer to try to interrupt

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that person as quickly as possible and then caution the individual.

…

Now for what it's worth, that is inadmissible. So there is no explanation which is admissible for the court's attention because there was no caution issued. And that applies of course to the evidence of both officers and effectively they confirm that because as I pressed upon them, I requested the entire disclosure of all that was said and the caution was not said by either of them at any stage."

7 The learned Magistrate accepted the submission of counsel for the respondent and gave very short reasons for dismissing the complaint. They were as follows:

"HER WORSHIP: The only thing which comes out of all that --- and Mr Hope is of course correct; there was no caution given to this young person, regardless of both officers Nicholls and Sloan saying that the boy is known to them. A caution is required and he was --- what I understand from Constable Nicholls's comments, I thought - and correct me if I'm wrong, senior, that the boy was strip-searched.

PROSECUTOR: That's correct, your Worship.

HER WORSHIP: Right. So regardless of whether the knife was there for an intention to harm somebody or what the boy supposedly had said, no caution has been given to this boy; he just comes out with something after he's been asked. And I really am obliged to make sure that cautions are given. I will stay with what I've said, that Mr Hope did give second witness Constable Sloan an extremely hard time. And obviously he has reasons for that, but I didn't think it's exactly called for. So based on what I've just said, I'm not satisfied - because a caution wasn't given with this particular charge, senior."

8 The learned Magistrate in dismissing the charge made no reference to the provisions of s 8(2) of the Weapons Act. For convenience I set out the provisions of s 8(1) and (2) as follows:

"(1) Except as provided in subsections (3) and (5) and section 10, a person who carries or possesses an article,

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not being a firearm, a prohibited weapon or a controlled weapon, with the intention of using it, whether or not for defence -

(a) to injure or disable any person; or

(b) to cause any person to fear that someone will be injured or disabled by that use,

commits an offence.

Penalty: $4000 or imprisonment for one year.

(2) A person is presumed to have had the intention referred to in subsection (1) if -


(a) the article was carried or possessed in circumstances that give reasonable grounds for suspecting that the person had the intention; and

(b) the contrary is not proved."

9 I leave to one side the question whether irrespective of any statements made by the respondent there was sufficient evidence to establish the offence with which he was charged. The presumption of intention contained in s 8(2) requires the court to consider whether or not in the circumstances there were reasonable grounds for suspecting that the person had the intention set out in s 8(1) and if such grounds exist, consideration has to be given to the question whether there was evidence disproving that intention. Although in this case the appellant sought in submissions to persuade me that the charge against the respondent was proven on the evidence because there were reasonable grounds for suspecting that the respondent had the requisite intention and he produced no evidence to prove that he did not have that intention, this issue is not the subject of the grounds of appeal. In any event, it is unnecessary for me to deal with that question because of the view I take in relation to the learned Magistrate's conclusion on the question of caution.

10 The central issue for determination in this appeal is whether it was a case in which a caution was required at all. The evidence reveals merely that Constable Nicholls, whilst requesting the respondent to empty his pockets, saw a knife and asked the simple question what it was for. To that question he received a reply which prima facie constituted an offence by the respondent against the provisions of s 8(1) of the Weapons Act.

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11 Leaving aside the question of the respondent's youth, there is clear authority that whilst an investigation is merely at the stage at which a police officer is gathering information or giving a possible suspect the opportunity of clearing himself, there is no need for a caution to be administered. It was put by King CJ in Dolanv The Queen (1992) 58 SASR 501 at 505 in these terms:

"It has always been accepted that while the investigation is at the stage at which the police officer is simply gathering information or giving possible suspects the opportunity of clearing themselves, there is no need for a caution. At that point there can be no question of involuntariness or unfairness arising out of omission of the caution."

This passage was followed in Harling v The Queen (1997) 94 A Crim R 437. There, a police officer upon searching premises, asked the appellant "do you have any drugs here?" in response to which the appellant answered "Yes". It was argued that a caution should have been administered to the appellant before she was spoken to at all. Anderson J (at 441) said:

"As to whether evidence of the appellant's confessional statements should have been excluded in the exercise of the discretion to exclude evidence on the broader ground of unfairness. I am not persuaded there was any unfairness. It is true the appellant was not cautioned, but the occasion had not arisen for a caution to be administered. The appellant was not in custody. There is no evidence that her liberty was under restraint. The detectives had obviously been led to the house at which they found the appellant, by the address on the parcel. No doubt they expected to locate the parcel or the remains of it and hoped to encounter and question Gibbons and it may be presumed they intended to look for other evidence of drugs and drug dealing at, or from, the premises. However, there is no evidence they went to the premises with a view to obtaining evidence against the appellant or even that they knew she would be there. Accepting that by that stage Gibbons was a suspect, the activities of the detectives in relation to the appellant were still part of their general inquiry as to what might be going on at the premises and as to who else might be involved in any criminal conduct. Having found the appellant at the address it would be startling if they could not ask her the questions that were asked even if her presence there and her retrieval from

(Page 8)

behind the wooden chest of the pipe and cannabis leaf made her a possible suspect."

12 In Baldock v Douglas (1953) 56 WALR 82, the appellant was in custody on a charge when he was taken by investigating detectives to premises where he resided. At the back of those premises some wooden blocks were found and the appellant was questioned about them in response to which he made admissions implicating him in having stolen those blocks. He was thereupon charged with unlawful possession of the blocks, a quite separate charge from that for which he was originally in custody. It was argued that the evidence of admissions made to the detectives was inadmissible by reason of the fact that the appellant was in custody at the time and had been given no warning. Virtue J (at 87) said:

"In the present case no objection was taken to the evidence until it had, in fact, been given, and I am satisfied that the magistrate was justified in disallowing the objection when it was made. Applying the tests enunciated by Dixon J; I would say that the character of the questions, the absence of any insistence or pressure in putting them, the fact that no questions were put directed to breaking down or destroying the prisoner's answers and no attempt to entrap, all assist to negative any impropriety. It is true that no caution was administered to the accused, but in my opinion, under the circumstances of the case, none was demanded. The accused was a prisoner in custody but he was in custody on quite a different charge from that which the detectives were investigating and it would, in my opinion, be somewhat startling if police officers were precluded from giving evidence of inquiries made into an offence by reason of the fact that the person from whom they were making enquiries was in custody on an entirely different charge."

13 In Van der Meer v The Queen (1988) 62 ALJR 656, Mason CJ (at 661) pointed out that there would be certain circumstances in which police officers, believing a suspect to be guilty of a crime, will wish to ascertain whether he has an answer to the suggested case against him before making a decision to charge. In those cases, a caution may well be required. What his Honour said was:

"I do not doubt that in some situations the police, though believing a suspect to be guilty of the crime, wish to ascertain whether he has an answer to the suggested case against him, before making a definitive decision to charge him. But,

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recognition of the right to silence and considerations of fairness to the suspect demand that, in these situations, the police should issue a caution and that they should not whittle down the effect of the caution by pressuring or cajoling the suspect into speaking once he has clearly indicated his wish to remain silent. Whether the suspect wishes to take advantage of the opportunity given to him is a matter for him to decide. And it is vital that the law should ensure that his freedom of choice is respected. It follows that the police will be acting improperly if they attempt to use the occasion as an excuse for attempting to break down a prior voluntary account given by the suspect of his relationship with the critical events in relation to the crime. The injunction, expressed in the Judges' Rules and elsewhere, that a person arrested or in custody must not be cross-examined, means no more than that. As Williams J observed in McDermott (at 517):

'But the mere asking by the police of a question which would only be asked in cross-examination at the trial does not, in my opinion, amount to cross-examination … A cross-examination for this purpose would be an examination intended to break down the answers of the accused to questions put by the police to which they had received unfavourable replies.' "

This, however, is an entirely different situation to that in which the respondent was here placed. In my view, no caution was required in the circumstances of this case. All that the police officer did was ask a neutral question in relation to the knife which had been produced from the respondent's pocket. It cannot be the case that merely seeing the knife should thereupon have put the officer on notice that a caution should first be administered before asking any question in relation to it. The respondent may well have had an entirely innocent explanation for possession of the knife. It could have been related to his work, leisure activities or anything else.

14 Having reached this conclusion, it is unnecessary for me to consider the wider issue of admissibility of any confessional statement made in circumstances where there was an absence of a caution which should properly have been given. It is of course the case that a confessional statement made to a police officer is not automatically rendered inadmissible merely because no caution has been administered: Azar v R (1991) 56 A Crim R 414 per Gleeson CJ at 420. Absence of a caution which should properly have been given will trigger the exercise of a

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discretion to exclude what was said but does not require exclusion: R v Swaffield (1998) 192 CLR 159 at 202.

15 There is, however, a live question whether the age of the respondent put the case into some special category which required the investigating officer to first notify a responsible adult person before asking any questions in relation to the alleged offence. As I have pointed out, the respondent was only just over the age of 16 years and the charge sheet reveals that the responsible adult person for him was Kayleen Riley of 9 Sorenson Road, High Wycombe. The provisions of s 20 of the Young Offenders Act 1994 require a police officer who has apprehended a young person for the commission of an offence to notify a responsible adult before asking questions about the offence or any other offence that has been or is suspected of having been committed unless a responsible adult cannot be found, or in the circumstances such notification would be inappropriate.

16 In this case there was clearly no attempt made to notify any responsible adult person before the critical question was asked of the respondent. However, it is my view that the provisions of s 20 of the Young Offenders Act had not come into play in this case. The officer was not asking questions about any offence when he put the question to the respondent "What's the knife for?" It was a neutral question and did not point necessarily to any offence at all. Once the respondent had answered, it would then have been incumbent upon the officer to have complied with the provisions of s 20 of the Young Offenders Act before pursuing any further questions in relation to the matter. However, he refrained from asking any further questions and therefore it was unnecessary for the section to be complied with. I cannot accept the submission of counsel for the respondent that from the moment the arresting officer first saw the knife he was obliged to say nothing but to contact a responsible adult before asking any question whatever. In my view police enquiries and investigation would be entirely thwarted if that were the situation in relation to every case in which a child was questioned.

17 I should also mention that I was told by counsel for the respondent that his client was of aboriginal origin. The learned Magistrate made no reference to this, but I was assured that everybody in the court appreciated that the respondent was an aboriginal. Nothing in my view turns upon this fact. It was not referred to by the learned Magistrate and there is no reason to treat the case any differently from that which would apply in the case of any 16-year-old youth.

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18 I am therefore of the view that the learned Magistrate erred in concluding that because no caution was administered by Constable Nicholls, that fact of itself required the charge to be dismissed. It was not a case in which any caution was called for, even if a caution had been called for, the learned Magistrate still failed to appreciate that absence of a caution required her to exercise a discretion to exclude before excluding the evidence of the respondent. However, it is unnecessary to deal with that issue. I would allow the appeal, set aside the decision of the learned Magistrate dismissing the charge against the respondent and order that it be retried in the Children's Court at Perth before a different Magistrate.