R v Apcr R v CP

[2006] NSWDC 12

CITATION:	R v APCR R v CP [2006] NSWDC 12
HEARING DATE(S):	05/04/06, 06/04/06 - 07/04/06
JUDGMENT DATE:	7 September 2006
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Records of Interview rejected
CATCHWORDS:	Criminal law - Arrest - Aboriginal - Juvenile - Admissibility, Record of Interview - Custody Manager Guidelines - Aboriginal Custody Notification - Aboriginal Legal Service (ALS) - representative Aboriginal Service organisation, meaning of - investigation period.
LEGISLATION CITED:	Reg 29 - Crimes (Detention after Arrest) Act (NSW) Crimes (Detention after Arrest) Regulations (NSW) Part 10A – Crimes Act 1900 (NSW). Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). S13(1) Children (Criminal Proceedings) Act 1987 (NSW) S90 Evidence Act 1995 (NSW)
CASES CITED:	R v Collins (1980) 31 A.L.R. 257 R v Phung and Huinh [2001] NSW SC 115 R v Helmhut [2001] NSW CCA 372
PARTIES:	Regina v APCR Regina v CP
FILE NUMBER(S):	06/31/0046; 06/31/0067
COUNSEL:	Regina - L Gray APCR - T Golding CP - M. Cavanagh
SOLICITORS:	Solicitor for Public Prosecutions. Legal Aid Commission Many Rivers Aboriginal Legal Service.

JUDGMENT

1 HIS HONOUR: On the admission and of Records of Interview of each accused.

2 Eva McBride, an eighty-one year old senior was first seen by police lying on the ground being treated by ambulance officers for injuries on her face. The prosecution case is that each of the accused approached Mrs McBride from behind shortly after she had alighted from her car at the Foster Ten Pin Bowling Centre. APC it is alleged ran up, grabbed her handbag, pulling it from her shoulder. She fell to the ground. Both accused then ran from the car park.

3 CP was arrested later that day. He was born in April of 1990 and at the time of his arrest was fifteen and a half years old. He participated in an interview with Detective Elkins at about 3pm that afternoon in circumstances to which I shall later come. The tender of that interview by the prosecution is objected to by the defence. At 3am on the morning following the robbery, APC was arrested, having moments before been asleep in his bed. Five days before the robbery of Mrs McBride, a warrant had issued for his arrest in connection with a charge of entering land with intent to commit an indictable offence. Senior Constable Cunningham, who had been the informant in that earlier offence, woke APC from a sleep and announced there was a warrant out for him and he was under arrest. Thereafter he was handcuffed, placed in the rear of a caged truck and driven to the Taree Police Station where he was charged in relation to the relevant warrant.

4. APC was born in July of 1992. In October of 2005 he was aged thirteen years and three months. APC also took part in an ERISP in circumstances to which I shall return. Again the tender of the ERISP in the prosecution case is objected to.

5 A jury has been empanelled to hear what was said to be a short trial. It was required to attend yesterday and again today. A voir dire was held yesterday. It occupied the Court from 9.30am until 6.15pm. I indicated at the conclusion of the proceedings that I would be ruling to exclude the interview with CP. Insofar as APC interview I indicated, I needed time to consider both the facts and the law before I would rule. Last night I spent considerable time looking at both the facts and the law. I have spent until 2 o’clock today and indeed considerable time in the early hours of this morning writing this judgement.

6 The Court’s task is to examine the facts and circumstances leading to the participation of each accused in his interview. I shall also have regard to the legal principles governing the issues of admissibility, and if appropriate, the exercise of discretion. I propose to review the facts and circumstances relating to the APC interview first.

7. Leading Senior Constable Michelle Cunningham’s evidence was that she and another police officer attended ---- Street, Forster at about 3.10am on 11 October 2005. Her purpose in attending was to arrest APC. The house was in darkness when they approached the front door but it was opened. I have inferred that their arrival was expected. She heard one of the two occupants say “APC is in the bedroom”. She went to the bedroom at the front of the house with two other police officers. There she saw APC asleep in bed. She said, “APC you are under arrest”. He was handcuffed. She then told him he had the outstanding warrant. He was taken from the bedroom to the front of the house. She spoke with the occupants and inquired about the whereabouts of his guardian, one RR. Her inquiries produced no useful information for her.

8. APC was taken to the rear of a police vehicle, which, as I understand it, was a caged utility and placed into the back of that by one of the supporting police officers. She asked the accused, “Who can come to the station with you?”. He replied, “Don’t know”. He went to the police station at Taree. On the return journey, I am assuming it was the return journey to Taree, she phoned Detective Elkins, the officer in charge of Mrs McBride’s robbery investigation to inform him of APC’s arrest. At the same time she told him that there was no-one available to be a support person, or words to that effect.

9. Earlier, at 7pm, Senior Constable Cunningham had called in to ---- Street she said to see if the Appellant was there. It would seem Senior Constable Cunningham believed there was in existence bail conditions requiring him to be at that address at that time. However she was unable to identify by way of an offence the particular bail conditions she was alleging had been breached.

10. It is sufficient if I say that I am satisfied the accused was properly arrested pursuant to the warrant and properly informed that that was the purpose for his arrest.

11 At Taree Police Station Sergeant Frank Brown was rostered to perform team leader’s duties between 6pm and 6am. He was also the custody manager. At about 3.50 Senior Constable Cunningham and APC arrived. APC was delivered into the custody of Sergeant Brown, who then began to induct him into the police custody system, pursuant to Part 10 of the Crimes Detention After Arrest Act.

12 Senior Constable Cunningham, probably at the direction of Sergeant Brown, completed a form known as Aboriginal Custody Notification Form addressed to the Taree Aboriginal Legal Service (ALS) office. The form contained details of the date, 11/10/05, time of arrest (3.10am), time of notification (4.10), surname of person in custody (PC), given name (A), date of birth (14/7/92), adult/juvenile (juvenile was circled), home address (---- Street, Foster), home phone number, offences being investigated (warrant). The rest of the notification form was incomplete.

13 Several incomplete headings would have been of relevance, namely expected bail situation (bail was intended to be refused), CAN (a warrant had been issued under s 54(2)/181(2) of the Criminal Procedure Act (1986) in respect of a charge/sequence number each 24697653 sequence 1; first court appearance date; officer in charge of investigation; notifying officer. It is significant to note this notification, as with others later sent, was not marked for the attention of any representative of the ALS. It was simply faxed to and addressed to the Taree ALS.

14 Sergeant Brown notes that as he entered APC into the custody, APC appeared tired and requested to be placed in a police cell. He was so placed at 4.15am. No support person was present. APC was searched, entered into the custody system, and as I say, moved to the cell. Sergeant Brown and Senior Constable Cunningham both acknowledge there were other secure rooms at the police station other than the police cells.

15 I am satisfied neither saw anything inappropriate about keeping a thirteen year old in police cells overnight. I am also satisfied the normal procedure at Taree is to do what Sergeant Brown did on 11 October 2005. I am also satisfied Brown was motivated by kindness in allowing a sleepy boy to head for the police cell. However the housing of youths aged 13 in police cells when other accommodation is available, is wrong. Part 2 of Schedule 1 of the Guidelines for Custody Managers and other Police Officers, to the regulation for the Crimes(Detention after Arrest) Act, clause 5 make this clear:

“5(1) An Aboriginal person or Torres Strait Islander who is a child should not be placed in a police cell except in exceptional circumstances that make it necessary for the wellbeing of the child.

(2) If it is necessary to detain a child overnight in a police cell the custody manager should arrange for a support person to remain with the child unless it is not reasonably practical to do so.

16 I am satisfied the custody manager did not turn his attention to either of those provisions.

17 A Custody Check List and covering sheet was completed, much of it most likely by Sergeant Craigie Hanson, the custody manager who followed Sergeant Brown. It allocates a charge number or event number of 24985736. Sergeant Brown was of the opinion that as the trigger for the arrest was the execution of an arrest warrant,

18 Part 10A of the Crimes Act 1900 did not apply. In my view he was correct. There was no investigating period required at that time.s 356C of Part 10A of the Crimes Act (now s 114 Law Enforcement (Powers and Responsibilities) Act 2002 would appear to make this clear. The latter Act replaced the repealed Part 10A on 5 December 2005. As Part 10A appears to have been the prevailing legislation in October 2005 my references will be to it. It provides, that is, s 356C provides that a police officer may in accordance with this section detain a person who is under arrest for the investigation period provided by s 356D...

(3) If, while a person is so detained the police officer forms a reasonable suspicion as to the person’s involvement in the commission of any other offence, the police officer may also investigate the person’s involvement in that other offence during the investigation period for the arrest.

19 It seems to me that this was not an arrest for that purpose but rather one relating to the execution of a warrant.

20 At 6am Sergeant Brown’s shift as custody manager finished. Sergeant Hanson took over. Sergeant Hanson was not called by the Crown to give evidence. Custody records were tendered through Sergeant Brown. By 4.12am Sergeant Brown had found the following property on APC: $39.55, a pair of shoe laces and one black tracksuit top. The $39.55 may have had some significance inasmuch as my understanding of the evidence is that Mrs McBride had about $150 stolen from her and it was the prosecution case that the loot contained in the bag had been divvied up between the two offenders shortly after the offence. The black tracksuit top ultimately was entered into an exhibit book at 1.51pm. Its significance may have related to the McBride robbery in which case then its entry into the exhibit book would have constituted part of the investigative procedure.

21 At some time around 5.30am a Fact Sheet for the bailing hearing was prepared for the Taree Children's Court, in relation to the warrant and the charge of breaking and entering with intent. Significant to this matter says the defence is the following paragraph contained in the statement:

“At 3.10am on Tuesday 11 October police were invited into the premises situate at ……………. Street, Forster. The young person, APC, was located by police in a bedroom of the residence. The young person was arrested by police and conveyed to Taree Police Station. The young person was entered into custody. At the time of the arrest of the young person no suitable support persons were available to be with the young person. The young person is to be interviewed in relation to other serious offences of a violent nature on 11/10/05.” (emphasis supplied by me)

22 At 6.15, 7.03, 7.35 and 8.22 APC was disturbed from his sleep, spoken to and made no complaints. Custody records show that at 8.45 APC was re-arrested by Detective Senior Constable Elkins in relation to the assault and rob matter at Forster on Mrs McBride. The record notes Detective Senior Constable Elkins had also brought the child’s mother from Foster to Taree to enable a “10A” interview process to be completed.

23 It was at 8.45am, then, that APC was regarded by police as being subject to 10A of the Crimes Act. Between 8.50 and 8.55 APC’s auntie, RR, made personal contact with him. I note the “end” time entry was made about two hours after the visit had been completed. What is peculiar is that the “start” time for the visit was also made after the visit had been completed but was made at 8.57.

24 It would appear to me that no inquiries from APC were made as to who he would like to be his support person. I am satisfied from the evidence of Senior Constable Cunningham that there were tensions in the house at ---- Street. Whether those tensions extended to Auntie RR or not has not been established by the evidence. I would have thought the onus was on the Crown to satisfy me that Auntie RR was a suitable person to be a support person.

25 APC was given breakfast at 9.08 to 9.20 after a 10A Summary of Rights was administered by custody manager, Craigie Hanson. It is unclear to me whether Craigie Hanson is a man or a woman. When I began writing the judgment it appeared to me that she was a woman but as matters proceeded, particularly given that the caution was said to be given by a “he” it may well be that Sergeant Hanson is a male. If Sergeant Hanson is a female then some person other than the custody manager would appear to have administered the cautions. At least that is what I take from the interview.

26 I am also at a loss as to how somebody can be fed at 9.08 to 9.20 and at the same time have his caution and summary rights administered. I would have thought, reading the Act but not being seized with any protocol that is used, that the administering of a caution and the explanation of the rights would have taken a substantial time in its own right. One or other or both of those procedures, that is breakfast and the setting out of the appropriate obligations may well have been rushed.

27 The evidence as to the time of the interview is confused. The videotape encryption shows the interview commencing at about 10.01 and concluding at 10.24. The clock on the wall at the rear of the interview room shows the interview starting at what would appear to be either 9.40 or 10.40 and concluding at 10 or 11 o’clock. Detective Elkins makes the comment in the interview and I am prepared to accept it, that the interview finished at 10.02. The accused was taken to the dock at 10.13.

28 A second Aboriginal Custody Notification Form was sent to the Taree ALS by fax at 9.20a.m. Again it was not addressed to any representative of the ALS. A third Aboriginal Custody Notification Form was sent to the Taree ALS at 9.23a.m. Just what effect it was thought could be achieved by sending the notice minutes before the interview was to begin is unclear and was not explored in the evidence.

29 The accused was interviewed by Detective Elkins and Detective Sergeant Laura Thurtell in the presence of his mother. He agreed he had been advised of his rights by the custody manager and he (the custody manager) read a form out explaining the rights. When asked whether he understood he had the right to contact a solicitor and tell him where he was, his answer, which was in my view equivocal, was interrupted by his auntie who said “Yeah, he read it out to you this morning”. His auntie RR then repeated herself. The accused was then asked whether he understood his rights. The sense I got at that point in time in the interview was that the accused felt pressure both from his auntie and the police officer to answer “Yes” and he did.

30 Detective Senior Constable Elkins never sought to test that understanding by asking the thirteen year old to explain the right back to him, see R v Collins, per Brennan J, as he then was. Given that exchange set out in the interview, it would be difficult to be satisfied the accused knew what right he had in respect of having a solicitor present. When asked how long he had been at school APC said he did not know. Again his aunt RR volunteered. She said the only school he would have been to had been in homes.

31 APC admitted that he and his co-offender had wanted money so went to the car park. Detective Elkins indicated he had seen the video, thereafter placed hearsay evidence onto the record of what he had seen in the video and asked the accused to comment as to who it was who he, Detective Elkins had seen in the video grab the lady’s handbag. APC’s response was that it was he. Detective Elkins then continued what was hearsay evidence of what he had seen on the video, namely that he had seen the lady fall when the person grabbed the handbag and then asked the offender whether he saw that happen.

32 What relevance Detective Elkins saw on the video has to do with the issues in the trial is beyond me. I doubt that those who instruct him in questioning techniques or interviews would approve this approach. Had I been asked, I would have seriously considered rejecting the questions. It had the effect of getting hearsay evidence before the jury. It seems to me it requires the subject of the interview to trust the detective as to (a) that he had actually seen the video; and (b) that he had accurately, fairly and fully described what he had seen and (c) that the oral description as understood by Detective Elkins was equally understood in the same terms by the thirteen year old lad who was hearing the description. True they may, if accurate, have been one and the same thing but that is still no guarantee that it would have been understood by the interviewee in those terms.

33 Further, when it comes to the tender of the tape of the incident there is a real prospect, of transference of what the detective saw or thought he saw on the video, to what the jury members see or believe they see when they review or recall the tape. To me it is an extremely dangerous practice. Of course APC, aged thirteen, would have been unaware the questioning procedure being used was so tainted.

34 Likewise questions 50 and 51 indicate the detective had been told that APC ran away and hid in the bushes, going through the lady’s handbag and taking money. What Detective Elkins had been told could not have been relevant evidence against APC standing on its own. The answer “Yes” is relied upon as an admission, yet analysed APC is doing no more than agreeing that Elkins had been told something. His answer simply was “Yes”.

35 The effect of questions 46 to 51, that is the questions about the tape, and the questions about what he had been told, places Elkins in a position not only of power in respect of the accused but also with superior knowledge in respect of the events that he is questioning the thirteen year old Aboriginal boy about. While such questioning may be useful and indeed perhaps even admissible towards the end of an interview after a suspect has given his account, and there is a factual basis contained in the interview for asking such questions, the method as used was unfair, being at the commencement of the interview, because it simply reinforced the power imbalance between the thirteen year old and two trained and experienced detectives.

36 At the time the interview was being conducted, therefore at some point between, say, 9.30am and 9.55am on 11 October 2005, Mr Christopher O’Brien, a solicitor of the Supreme Court of New South Wales, a well known practitioner in the Taree region, approached the front desk at the Taree Police Station. The police station is next door to the Court. O’Brien is a frequent visitor to the Taree Police Station where from time to time he sees or interviews his clients in custody.

37 He was greeted by a male police officer. He is now unable to identify or describe that police officer. O’Brien asked whether there was a young person in custody named APC. The officer said “Yes”. He asked could he see the young person in custody. The police officer replied “He’s being interviewed, you can’t see him at this stage”. O’Brien said “I want to convey something about his rights”. The police officer gave the same answer he had just given. O’Brien left the police station.

38 APC had in the past been and could still be regarded as being O’Brien’s client. On this evidence I am prepared to find O’Brien did not identify himself as a solicitor, or that APC was his client. He was, of course, dressed in a suit, he used the term “young person” and “conveying something about his rights”. That surely would have identified him as being a person at least involved in the administration of criminal justice and open to the real likelihood of his being a solicitor. O’Brien had been notified by the ALS solicitor, Mr North, that APC was in custody.

39 There are a number of matters of concern relating to the interview. Some occur before the interview but set a background against which the police conduct is to be assessed:

• The arrest of the accused at 3am. I am satisfied the accused was not available for arrest at 7pm on 10 October nor do I make any criticism of Senior Constable Cunningham for conducting the arrest at this time. Nonetheless being awoken, handcuffed, transported in the rear of the caged truck demonstrates a no-nonsense and tough approach by the police to the accused.

• Housing the accused in police cells with no support person, contrary to the regulation guidelines, or even having regard to the existence of the guidelines when a secure room was available. I accept that it was necessary to keep the accused overnight, and I accept that it may have been difficult, if not impossible to have found a support person, but I am satisfied no thought was given to the latter.

• The continual disturbance of the accused’s sleep from 6am to 8am apparently to see if there was any matter he wished to complain about. Sleep disturbance and deprivation would not be conducive to the accused’s wellbeing and one would imagine that it ought to have some better purpose than to see if he wanted to complain. I note that Sergeant Brown has not recorded as having deprived the accused of sleep. It is accepted there may be instances where continual disturbance may be necessary but a sleeping youth who is not a suicide risk and is not ill does not appear to me to be one of them.

40 The notification to the Taree ALS subsequent to the accused’s re-arrests needed to comply with the

requirements of Regulation 28 of Part 10A. It’s in these terms,

“If a detained person is an Aboriginal person or a Torres Strait Islander, then unless the custody manager is aware that the person has arranged for a legal practitioner to be present during the questioning of the person, the custody manager must:

a) immediately inform the person that a representative of an Aboriginal Service
organisation will be notified that the person is being detained in respect of an offence;
and

b) notifies such a representative accordingly. (my emphasis)

41 The obligation upon the custody manager is to notify a representative of the Aboriginal Service organisation. Such an obligation is different from notifying an Aboriginal Service organisation in that it requires notification to a person who “represents” the organisation. Such a person is more than a mere employee. He or she is a person capable of representing the ALS. The protocol of faxing notifications to the Taree ALS falls far short of notifying a representative of the ALS.

42 It relies upon the person who clears the fax machine, if he or she is not such a representative to find the representative and bring the fax to the attention of the representative. Such procedure may involve delay. I do not know which notification for instance, whether it was the 4am, 9.20 or 9.23 one that caused Mr North to notify O’Brien. However, if North had been notified directly then he could have directed the custodial manager to O’Brien and O’Brien would have been notified earlier. Clearly this is one of the values of personal notification.

43 Personal notification also plays a part in the CP case, to which I will come later.

44 There is an apparent failure of the custody manager, or interviewing police, to establish who the accused desired for a support person, that he had the right to select someone he chose as a support person for the interview, or that he could have chosen a barrister or solicitor to be present. Detective Elkins claims he believes s 13(1) Children (Criminal Proceedings) Act 1987 sets out a hierarchy commencing with the person responsible for the welfare of the child at the time. I note there is no such Provision in the section.

45 What the section in fact says is this,

“13(1) Any statement, confession, admission or information made or given to a member of the police force by a child who is a party to criminal proceedings should not be admitted in evidence in those proceedings unless:

a) There was present at the place where and throughout the time during which, it was made or given –
(i) a person responsible for the child;

(iii) in the case of a child who is above the age of sixteen years – an adult (other
than a member of the police) who was present with the consent of the child; or
(iv) a barrister or solicitor of the child’s own choosing; or

b) the person acting judicially in those proceedings
[comes to a view of one sort or another].

46 I disagree with Detective Elkins. There are four options. The use of the word “or” in the section does not connote a hierarchy. I seriously doubt his true belief is as he claims in evidence.

47 Whether the task of offering selection is the responsibility of the custody manager alone puts the question too narrowly. The police officer in charge of the interview should satisfy himself or herself before the interview proceeds past the formalities that the suspect understood his or her right to freely select and experience the right. That was not done in this case.

48 I have viewed parts of the interview. I concede I have not viewed it all. To me the accused appears tired, unsure of what is meant by a number of formal questions at the beginning and conclusion of the interview. Persuaded to answer “Yes” to the question about understanding his rights to have a lawyer present when he still appeared unsure.

49 Continuing the matters of concern include the decision made at the front desk to deny the accused access to a professional person who had come to the station specifically to advise the accused of his rights. Had Mr O’Brien been earlier notified by the custody manager, or Detective Senior Constable Elkins, I am satisfied he would have been afforded the opportunity of explaining to the accused his rights. It is also possible he may have supported the accused during the interview, had the accused chosen in the face of the solicitor’s advice to participate in an interview. Any solicitor permitting a thirteen year old client to participate in an interview without seeking to accompany him or her would in my view be sailing close to professional callousness and negligence. Having seen this accused in the interview I would strengthen this comment.

50 Defence counsel has invited me to find there was an abuse of the investigating period provided by s10. That claim has not been made out.

51 The seminal cases setting out the law and discretionary principles I apply are R v Phung and Huinh[2001] NSW SC 115 and R v Mark Helmhut[2001] NSW CCA 372. From those cases I distill the following principles.

• It may be accepted that the purpose of the legislative regime that applies to the interviewing of children, and particularly those in custody following arrest, is to protect them from any disadvantage inherent in their age as well as to protect them from any form of police impropriety. As to the former, what is required is compliance with procedure laid down, so as to prevent the young, or vulnerable, accused from being overawed by the occasion of being interviewed at a police station by detectives, who are likely to be considerably older and more experienced than they are.

• It is important that police officers appreciate that the regime now established is designed to secure ethical and fair investigations, as well as the protection of individual rights of some significance which attach in particular to children. Those rights obviously are of great importance, when a child is facing a charge as serious as murder or armed robbery.

• The provisions (relating to questioning and arrest) need to be faithfully implemented and not merely given lip service or imperfectly observed. The consequence of any failure to give proper regard to them is to risk the exclusion of any ERISP, or the product of any investigative procedure, which is undertaken in circumstances where there has not been proper compliance with the law.

• There is a positive obligation under the legislation to ensure that the child or vulnerable person can understand what is being said. For example see Regulation 29(Crimes)(Detention after Arrest) Act. That makes sense of satisfying themselves. Regulation 29 may well relate to interpreting but nonetheless for young people it still stands. Some of the formal questioning may need explanation. The regulations give rise to a positive obligation to assist a vulnerable person in exercising his or her rights, see Regulation 20.

• The role of a support person is to act as a check on 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 to provide that comfort which accompanies knowledge that there is an independent person present during the interview.

• The custody manager is required to explain to the support person that his or her role is not confined to acting merely as an observer, but also extends to doing the other things specified.

• Some human beings are more vulnerable in facing police interrogation than others. Many factors bear upon an individual’s vulnerability. Age, education, personality and general experience of life are some that are relevant to an individual’s capacity to deal with police questioning. Plainly that capacity varies from individual to individual. That means a contravention of any of the obligations, including the obligation to notify a representative of the ALS may have different consequences, depending upon the particular characteristics of the individual who is being interviewed by the police.

• The consequences in question may make it unfair for the evidence to be admitted.

52 I am satisfied that there have been a number of irregularities in complying with the statutory regime and guidelines put in place to ensure fairness to vulnerable persons. These include the failure to house the accused overnight with a support person and in a secure place other than a police cell; the failure to notify a representative of the Taree ALS; the failure to provide the accused access to Mr O’Brien and the failure to formulate appropriate questions as the front part of the interview on the offence itself commenced.

53 I am satisfied there was no thorough investigation of whether the accused understood his rights and I am also satisfied that he did not understand them. I have not been satisfied that the support person was properly instructed by the custody manager.

54 I am satisfied the interview proceeded because an unfair and unethical advantage was taken by Detective Elkins. I accept that the investigation of crime in this region is no easy task. I accept that the provisions such as those required by Part 10A and the various regulations are frequently regarded by police as a roadblock impeding effective police investigation.

55 Nonetheless as Wood J, Chief Judge at Common Law, has said, what is now demanded by our law makers is not only effective but ethical policing. I am satisfied Detective Elkins attempted to comply with Part 10A and the Regulations to the extent that the compliance he gave would, he thought, have been acceptable to the Court.

56 I am satisfied APC was a vulnerable person, indeed a textbook example of vulnerability, young in age, overawed in the power imbalance with no personal resources to deal with his questioners and the strong likelihood that the support person was not much better equipped than he. He was grossly uneducated, probably less than of average intelligence (at least his answers would tend to demonstrate this), poorly supported by a support person who I have inferred from the evidence of Senior Constable Cunningham, may have been, I do not say was, antagonistic towards him.

57 It is likely she did not know the extent of his (the accused) rights, and thought all that was necessary was that someone read them out to him, and he would understand them, notwithstanding the formal language in which they are couched.

58 I am satisfied the admissions made in the interview are likely to be true, at least insofar as the activity of the accused APC is concerned. It may be that he has overstated his co-offender’s role but that evidence could not have been used against CP in any event.

59 I am satisfied the admissions are crucial to the Crown Case. I have been told the Crown case cannot succeed without them.

60 I am conscious in the balancing that must be done, proper weight must be given to the public interests in seeing offenders brought to account for their crimes in courts of law and that that applies with greater emphasis the more serious the crime. I recognise such a policy has application in matters involving children.

61 s 90 of the Evidence Act 1995 is in the following terms,

Discretion to Exclude Admissions

In a criminal proceeding the Court may refuse to admit evidence of an admission or refuse to admit the evidence to prove a particular fact if:
(a) ...
(c) the evidence is adduced by the prosecution;
(d) having regard to the circumstances in which the admission was made it would be unfair to a defendant to use the evidence.

62 I am satisfied the admissions are voluntary in the sense they were not forced out through threats or importuning or bribery. However the effect of the failure to follow procedures put in place for vulnerable people has denied to this accused matters to which he was properly entitled. Because of his vulnerability, - unprotected as he was by the legislative regime that was supposed to provide protection for him, a confession came into existence. I am satisfied it would be unfair to the accused pursuant to the criteria I should consider under s 90 to permit the admission of the evidence.

63 The offence that occurred on 10 October was targeting an eighty-one year female by at least one, and on the Crown case two, youths. The handbag was snatched and she fell injuring herself. The fall and injury would appear not to have been intended, but nonetheless are consequences of the robbery. The victim was hospitalised, although on the evidence before me it is unclear how long. I am aware that there was at least one wound to her face and that the face was substantially damaged.

64 The two young persons are being tried according to law. I have sought to balance public interest against fairness to the accused.

65 It appears to me the breaches have an aura of endemic about them. I have earlier referred to Sergeant Brown’s decision to place the thirteen year old in the cells as a matter of course. I refer to the failure to recognise the young person’s right to the choice of a support person likewise appears to have an aura of endemic about it. The failure to notify a representative has been established as a protocol, although no doubt not deliberately so.

66 All of these failures remain notwithstanding Woods’ J decision in Phung and Huinh earlier referred to and the clear admonition issued in 2001 by him, and later by the Court of Criminal Appeal applying Phung and Huinh in Helmhut’s Case. Well, I am concerned of course only with consequences in this case. It is against that background that I assess them. I would exclude the ERISP in the exercise of my discretion created by s 138 of the Evidence Act.

67 I now turn to the interview of CP. CP was arrested by Senior Constable Russell in close vicinity to the crime scene. He was placed in the rear of a caged vehicle. At the time of his arrest $50 was on him. As I earlier mentioned Mrs McBride’s wallet had contained something in the order of $150. Leading Senior Constable Michelle Eggert who was at the scene when the accused was arrested, assumed the role of custody manager at the Forster Police Station.

68 Initially attempts were made to contact the accused’s mother, MT. These attempts were unsuccessful. The evidence is unclear as to who was seeking to make contact, how he or she was seeking to do so and what level of success, if any, that person or persons had. It is to be remembered the Crown bears the onus of proof in compliance with Part 10A in the relevant provisions.

69 CP was entered into custody at 10.50. He had been arrested at 10.30 and conveyed from the arrest scene at 10.45. Detective Elkins and other investigators arrived at Forster Police Station at 11.05. Once it was established the accused’s mother or any other adult could not be contacted, “Legal Aid” was informed.

70 The accused is an indigenous Australian who identifies as an Aboriginal. He was aged fifteen at the time of his arrest. On two bases then he qualifies as a vulnerable person.

71 At 12.25 Peter North from the ALS made telephone contact with the accused. North advised him. As a consequence of that advice and on instructions from the accused North told Detective Senior Constable Elkins the accused would not be participating in an interview. North had sought to give this information to the custody manager but had been told by Elkins she was unavailable, thus he communicated directly with Elkins requesting him to convey the message to the custody manager. That interchange was completed by 12.30. The accused confirmed that the was not interested in making an interview. Elkins then made the decision to terminate the investigation period. He was entitled to do so.

72. s 356D (Crimes Act 1900) sets out the parameters of the investigation period:

1) The investigation period is a period that begins when the person is arrested and ends at
a time that is reasonable having regard to all the circumstances, but not exceeding the maximum investigation period.
2) The maximum investigation period is four hours or such longer period as the maximum
investigation period may be extended by a detention warrant. s356E sets out the criteria for
determining what is a reasonable time
3) 356E Determining reasonable time:
i) ...
ii) In determining what is a reasonable time for the purposes of s 356E(1) all relevant
circumstances of a particular case must be taken into account.
iii) Without limiting the relevant circumstances that must be taken into account the
following circumstances (if relevant) are to be taken into account:
(a) the person’s age, physical capacity and mental capacity and condition...
(d) whether the person has indicated a willingness to make a statement or to
answer any questions.

73. S 356G provides the circumstances in which an investigation period may be extended.

74. S 356G detention warrant to extend investigation period:

1) A police officer may, before the end of an investigation period, apply to an authorised justice

for a warrant to extend the maximum investigation period beyond four hours.

75. One issue raised in this case is whether the investigation period, having been ended can be reactivated. I have no doubt the investigation period was ended. Detective Sergeant Elkin says he was in the process of charging the accused with a charge, but not the charge he presently faces. The custody record shows the charging process commenced at 12.31 and was stopped at 12.35 because it was determined to wait for the mother. That 12.35 entry was made at 14.47, that is two hours and 12 minutes after the charging process had stopped.

76. On my reading of Part 10A there is only one way to extend a investigation period and that is by means set out in 356G. The investigation period having finalised I am of a view that it was no longer open to the detective to avail himself of s356G.

77. Detective Elkins claimed he stopped the charging process because he felt s 13(1) Children (Criminal Proceedings) Act 1987set up a hierarchy of support persons and that the mother took precedence over the lawyer. I have already indicated my attitude to that claim. In my view Detective Elkins, when told the mother was on her way saw a potential advantage to his investigation. He recognised immediately she was not a trained solicitor, that there was a strong likelihood she would be more malleable than a trained criminal lawyer, possibly take a different view about the accused participating in an interview. I am satisfied it was because he saw a potential advantage to his investigation that he stopped the charging process.

78. I have not been satisfied he was consciously acting in breach of any regulation or statute, simply that he sought the advantage. Had the matter stopped there, notwithstanding that I have held his conduct may have been unacceptable, it may well be the discretion properly exercised at that point would have seen the interview admitted.

79. Upon arrival of the mother however he went too far. I shall return to this.

80. At 3.30 the accused’s mother arrived. Again the mechanism by which the police became aware the mother was travelling to Foster from Taree is unclear. It was their belief she was hitchhiking. She was afforded the opportunity of speaking to her son. It is unclear exactly where but it may have been in an interview room. Upon her arrival at the police station MT spoke to an officer at the front desk who connected her with Detective Elkins. She said to Detective Elkins, “I’m CP’s mother, I want to see my son”.

81. Detective Elkins took her to the interview room and said to her that her son had hit the big league this time. She said “What do you mean”. He said, “The lady received injuries”. She said, “CP wouldn’t do anything like that. I want to see my son”. He said, “CP is all right. He spoke to someone at Legal Aid”. Thereafter she saw her son and then subsequently spoke to Detective Elkins.

82. It would appear that there were intermittent meetings with Detective Elkins. One such time was when she was upset and he took her to the police courtyard to allow her to smoke a cigarette there. On this occasion he said to her, “The solicitor said not to do an interview”. He told her that he, Detective Elkins had seen video footage of the incident. CP’s role was very minor, hiding in the bushes. She asked if she could see the footage. He said “No, it’s at the ten pin bowling alley”. He continued, “It would be in CP’s best interests to do an interview now and get it all cleared up”.

83. MT remarked that the detective seemed friendly. She returned to the interview room. She said in her evidence that as a consequence of the conversation with Detective Elkins she felt she bullied CP into the interview. She also said that CP did not want to do the interview.

84. While all of this conversation was not put to Detective Elkins in cross-examination, it was put to him that he had spoken to MT and had told her CP should do the interview. He denied he had spoken to her in those terms. I am equally satisfied he would have denied the balance of the conversation and I take him to have done so.

85. However I am satisfied it is more probable than not the conversation set out by MT is true. I am satisfied Detective Elkins had seen the video footage by the time he was ready to interview the accused. I am satisfied the accused was at some stage hiding in the bushes. I am satisfied Detective Elkins saw the arrival of MT at the police station as a potential advantage to his investigation. I am satisfied he saw that advantage as bearing upon the potential for her son to take part in an interview. I am satisfied his conduct had the consequence of putting pressure on the accused through the medium of the accused’s mother. I am satisfied that pressure was applied to circumvent the advice given by Mr North and intended that the accused would follow the urgings of his mother. I am satisfied the accused determined to follow the advice of his mother and that his will was overborne by his mother’s importuning.

86. In this sense I am not satisfied the interview was voluntary. I would exclude it upon that basis.

87. I recognise significant admissions were made in the interview. I would also exclude it pursuant to s90 of the Evidence Act. I echo here the relevant discretionary considerations I earlier referred to in the case of APC. I would exclude it under s 138 as being improperly obtained by the application of pressure and importuning. Again I echo the relevant discretionary considerations earlier referred to in APC’s Case.

88. Having looked at the accused’s custody record and the time lag between events and entries made, I would recommend to the powers that be that greater pressure be put upon custody managers to comply with their obligation enshrined in the regulations to make entries into the custody record contemporaneously.

89. The ERISP of CP is rejected.

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