P v M

[2004] NSWLC 5

Local Court of New South Wales

CITATION:	P v M [2004] NSWLC 5
JURISDICTION:	Children's Court
PARTIES:	P v M
FILE NUMBER:
PLACE OF HEARING:	Campbelltown Children's Court
DATE OF DECISION:	09/17/2004
MAGISTRATE:
CATCHWORDS:	ERISP - Young Person - Decline to Participate in ERISP interview
LEGISLATION CITED:	Evidence Act s 138 s 90
CASES CITED:	R v Phung & Huynh [2001] NSWSC 115 at [52] Foster v The Queen (1993) 67 ALJR 550 at 555
REPRESENTATION:	Sgt Melville Mr Smirilios Mr Leamey
ORDERS:	The tender of the ERISP transcript is rejected

Ruling on the Admissibility of an ERISP Transctript

1    The legal representative of the young person has objected to the tender of the transcript of an ERISP conducted with the young person between about 6.05 am and 6.20 am on 17 March 2004.

2    The objection relies upon the following evidence contained in the prosecution case that the young person did not wish to participate in the ERISP:

Evidence	Source
1	(prior to the taping of the ERISP: Sen Con Gardiner): I said: “Do you agree to be electronically interviewed?”.. The YP said, “No”.	Exhibit 1: Statement of Sen Con Gardiner
2	Q. Do you agree to be electronically interviewed? A. No.	ERISP Q & A No. 9
3	Q. Did you then agree to be electronically interviewed? A. No	ERISP Q & A No. 19 (referring to exchange in Incident 1 above)
4	Q. Its alleged that you and the five others were … at … A. I don’t want to say anything Q You don’t want to say anything. Its alleged that you threw bricks and stones at the taxi driver …	ERISP Q & A Nos 41 & 42
5	Q Who did? A I don’t wish to say. Q Sorry? A I don’t wish to say anything.	ERISP Q & A Nos 46, 47
6	Q You don’t agree you were there? A. No, I’m not agreeing to anything. Q Anything else you want to tell me about this morning? A, No Q Why were you in Liverpool this morning at all? A No.	ERISP Q & A Nos 58-60
7	Q So you can’t tell us anything why, why you were running or hiding from police? A Don’t know. I’m not gunna say nothing.	ERISP Q & A No 62
8	.. The YP declined to be interviewed via ERISP... Charge Reasons: … refused interview… declined to be interviewed.	Exhibit 6 – Police Fact Sheet

3    I note that the only time the young person said yes was at the end when the independent officer asked him “Have you made this interview of your own free will” and the young person replied “Yes”: ERISP Question and Answer no 81. That response is not conclusive of the issue I have to determine.

4    I also note that the support person present was the young person’s mother. There is no record that she said anything during the ERISP.

5    In evidence on the voir dire, Sen Con Gardiner said in answer to questions on behalf of the young person that she continued with the questions because she had a duty to investigate. She said she was allowed to ask a few questions to investigate matters. She said she wanted to get onto tape the fact that the young person said “no” to the invitation to participate in an electronically recorded interview.

6    In answers to questions from the prosecution, Sen Con Gardiner stated that she agreed that she had ensured the young person was fully appraised of his rights.

DECISION

7    I am satisfied that the young person clearly communicated a refusal of consent to be interviewed. I am satisfied that the officers continued to seek answers to questions which went beyond a mere recording of the refusal to be interviewed. The young person announced the exercise of the right not to answer questions, and was ignored by the interviewing officers.

8    Although there was a support person present, they did not undertake the protective role which would be expected: The mere presence of a support person is not by itself sufficient to protect the rights of the young person during questioning: R v Phung and Huynh [2001] NSWSC 115 at [52].

9    It has been put on behalf of the young person that the court should exercise its discretion under Evidence Act s 138 to exclude the ERISP evidence on the ground that it has been improperly obtained. I am satisfied that the material was obtained improperly as a result of continuing police questing of a juvenile who said that he did not want to participate in an interview. I turn then to matters to be considered in the exercise of my discretion to exclude. The evidence in the interview appears to be circumstantial or inferential. The impropriety appears to have occurred recklessly, in that the officer does not appear to have understood or properly considered the proper procedure when a suspect emphatically declines to be interviewed. The rights breached by the impropriety are important, being the rights of the accused to silence.

10    Given the nature of the persistent questioning in this case, I am satisfied that it is appropriate to exercise my discretion to exclude the evidence under s 138.

11    The application was also put on the basis that the confessional evidence should be excluded under Evidence Act s 90. That is, having regard to the circumstances it would be unfair to the accused for the evidence to be admitted. The interview process constituted a significant infringement of a defendant’s rights: Foster v The Queen (1993) 67 ALJR 550 at 555. If I am wrong in excluding the evidence under Evidence Act s 138 I would exclude the evidence under Evidence Act s 90.

12    The tender of the ERISP transcript is rejected.

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