Police v DM and SKL - [2008] NTMC 67

CITATION: Police v DM & Police v SKL [2008] NTMC 067

PARTIES: DAVID STEVEN MOORE

DAVID STEVEN MOORE

SKL

TITLE OF COURT: YOUTH JUSTICE COURT

JURISDICTION: Criminal

FILE NO(s): 20809826 and 20809501

DELIVERED ON: 16 October 2008 (in Chambers)

DELIVERED AT: Darwin

HEARING DATE(s): 21-24 July 2008 and 1-4 September 2008

JUDGMENT OF: Ms Sue Oliver SM

CATCHWORDS:
CRIMINAL LAW – Evidence – Admissibility of Records of Interviews - Support Person – Legal Advice and Representation
Youth Justice Act ss15, 18, 22 and 35, Division 2 of Part 2 “Police powers and obligations”.

REPRESENTATION:

Counsel:
Informant: Mr Usher and Ms Nobbs
Defendant: Mr Powell for DM
Mr Johnson for SKL
Solicitors:
Informant: ODPP
Defendants: NTLAC

Judgment category classification: A
Judgment ID number: [2008] NTMC 067
Number of paragraphs: 66

IN THE YOUTH JUSTICE COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA

Nos 20809826, 20809501
[2008] NTMC 067

BETWEEN:

DAVID STEVEN MOORE
Informant

AND:

DM
1st Defendant
&
SKL
2nd Defendant

REASONS FOR DECISION

(Delivered 16 October 2008)

Ms Sue Oliver SM:

1. The defendants are two of seven youths charged with various violence offences whose matters have been heard together. The offences allegedly arise out of an incident at the Hibiscus Tavern and Shopping Centre car park on 29 March 2008, in which a large group of youths and young adults are alleged to have assaulted a group of older patrons from the Tavern.
2. The admissibility of recorded interviews by Police with the defendants SKL and DM was challenged and evidence on the voire dire given in respect of those challenges. DM gave two interviews with Police, both taking place on the same day prior to DM being charged, while SKL participated only in a single interview. In the course of the hearing I ruled each of the interviews as inadmissible. I now provide my reasons for those rulings.
3. The prosecution must show on the balance of probabilities that the statements were made voluntarily. Voluntary does not mean volunteered, it means made in the exercise of a free choice to speak or be silent (R v Lee (1950) 82 CLR 133 at 149). Essentially the rule expresses and protects the privilege against self incrimination. If voluntariness is established then the onus shifts to the defence to show exclusion is required on grounds of unfairness or within the broader public policy discretion. Unfairness requires a showing, not that the evidence was unfairly obtained, but that it would be unfair to use the evidence against the defendant. The fairness discretion focuses on whether the impropriety has affected the particular accused person. It is a question of whether a fair trial process can be based on evidence improperly or unlawfully obtained because a statement obtained in those circumstances may not be reliable. (R v Swaffield; R v Pavic (1998) 192 CLR 159 at 189).
4. In circumstances where unfairness is said to arise out of procedural impropriety, i.e. that there has been unlawfulness or improper conduct associated…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NTMC 67
Decision Date: 16 October 2008 (in Chambers)

CaseChat Overview and Summary

In the case of Police v DM and Police v SKL, the Youth Justice Court was required to determine the admissibility of recorded interviews conducted by the police with the defendants, DM and SKL, in relation to a violent incident at the Hibiscus Tavern and Shopping Centre car park. The defendants were two of seven youths charged with various offences arising from the incident. The court had to decide on the challenges to the admissibility of the recorded interviews, which were based on alleged procedural improprieties and whether the interviews were conducted in a fair and appropriate manner.

The court found that the interviews with both defendants were inadmissible due to various procedural issues and unfairness. In relation to SKL, the court found that the support person present during the interview was not suitable as they did not understand the role they were meant to play and were not given an opportunity to properly fulfil that role. Additionally, the police failed to advise SKL of his right to access legal advice and representation, and they proceeded to charge SKL at the police station instead of releasing him and proceeding by way of summons, which was not in line with the requirements of the Youth Justice Act.

In relation to DM, the court found that his mother, who was present as the support person during the interviews, was not suitable for the role due to her limited understanding of the English language and the privilege against self-incrimination. The court also found that the police failed to advise DM of his right to access legal advice and representation, and they proceeded to charge DM at the police station instead of releasing him and proceeding by way of summons. Furthermore, the court found that the police's conduct during the first interview with DM was oppressive and challenging, which may have affected the voluntariness of his admissions in the second interview.

In conclusion, the Youth Justice Court ruled that the recorded interviews with both DM and SKL were inadmissible due to procedural improprieties and unfairness. The court exercised its public policy discretion to exclude the evidence in order to preserve the administration of justice as a whole and to ensure that the court is not seen to condone improper or unlawful conduct by law enforcement officers.

Orders