R v C

[1997] QCA 82

[1997] QCA 82

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 437 of 1996

Brisbane

BeforeFitzgerald P.

McPherson J.A.
Helman J.

[R. v. C]

THE QUEEN

v.

C

Appellant

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 22 April 1997

This is an appeal against the appellant’s convictions in the District Court on 1 October 1996 of two offences of wilful damage and one offence of stealing.  The offences all related to vandalism and the theft of minor items of property from a golf course.  The appellant, who was born on 16 April 1982, committed the offences shortly before his fourteenth birthday.  The prosecution case against him depended on evidence of incriminating admissions which he made on 7 April 1996, a day or two after the offences.  His appeal is based on the proposition that that evidence should not have been admitted.

Police officers had little difficulty in locating the appellant; he had scratched his first name and his mother’s surname on the golf course.

Police officers who suspected the appellant attended at the home of his mother and stepfather.  Although the appellant did not live with his mother, he was present at her residence when the police arrived.  The appellant walked outside, two of the three police officers followed him and began to question him, and the appellant made incriminating admissions.

In referring to those initial admissions by the appellant, the trial judge said:

“Apart from acknowledging he knew about the incident and being asked his name, address and age, he was not questioned further about the incident outside the house.”

However, that statement does not completely describe the effect of the statements made at that time by the appellant, according to the evidence on voir dire of a police officer, Constable Bycroft, whom his Honour accepted as reliable.  In the course of his evidence, Constable Bycroft said:

“Well, tell us what you told him?-- I said that ‘We’ve had a wilful damage or a series of damage caused to the Mount Warren Park Golfing Course.’  I said, ‘Do you know anything about this?’  That’s the effect of it, I’m not sure of the exact words that took place.

And this was outside the house whilst his mother was present just inside?- - Which conversation are we talking about, when we initially arrived at the house?

No, I’m talking about--------?-- Oh, outside the house without the mother present, certainly yes.  There may have been some mention of why we were there by Senior Constable Collins upon our arrival.

And what answer did you get from him when you asked him about the incident at Mount Warren Park Golf Course?-- He said a few things, basically he said that he had been to the course and just started to describe what he had done.

And this is all outside the house in the absence of the mother?-- Yes.

What did he say he’d done?-- Just that he’d been to the course and caused a bit of damage, I think ‘trash’ was the word he used, I can’t recall.”

The prosecution did not lead evidence of those statements by the appellant at his trial.

The appellant and the police officers to whom he had made the initial admissions then went into the house and joined the appellant’s mother and stepfather and the other police officer who had been speaking to them.  The appellant’s mother questioned him in the presence of the police officers and he made further incriminating admissions.  No attempt was made to warn the appellant and his mother that the appellant was incriminating himself by responding to his mother’s questions.  Evidence of these admissions was admitted at the appellant’s trial.

The appellant was next taken to a police station.  His mother was invited to accompany him but preferred to attend a barbeque in accordance with a previous arrangement.  While neither the appellant nor his mother objected to his being taken to the police station when he was asked whether he was willing to go with the police officers, they were not informed that he was not obliged to do so.  After being taken to the police station, the appellant was taken to the golf course and questioned on videotape and then returned to the police station where he was formally interviewed and the interview was again videotape-recorded.  The appellant was not informed at any time while in the company of police officers that he was free to leave.

It is convenient to quote a passage from the trial judge’s ruling allowing evidence to be adduced by the prosecution of the admissions made by the appellant in answer to his mother’s questions at her house, in the videotaped interview of the appellant by police on the golf course which he had damaged, and finally in the other videotaped interview at the police station. It was only in that final interview that the appellant made admissions which were necessary for the prosecution to establish that, when he committed the offences, he knew that he ought not to do what he did: Criminal Code, s. 29. His Honour said:

“On arrival at the police station, the police sought to contact C’s foster parents to have them present when he was interviewed. The foster parents were absent from their residence and could not be contacted. The police then sought to contact a number of independent persons to sit in whilst C was being interviewed. After a number of unsuccessful attempts, they managed to obtain the services of Mrs Van Gaveren. Mrs Van Gaveren had the necessary qualifications prescribed by section 36(2) of the Juvenile Justice Act, and although she was not Constable Collins’ first choice, I am satisfied that there was nothing untoward or suspicious in the police obtaining her services. I say that because, in hindsight, she was not a good choice. I accept that when she came to give evidence here in Court, she was racked with pain and that may have affected her thinking processes and the content of her evidence. Although she is a qualified Justice of the Peace, I do not consider that she is a person who should be used to sit in an interview with juveniles. She is not a person who, in my view, fully understands the right of a suspect when being interviewed.

In this case, however, I am satisfied that she did inform the accused that he did not have to answer questions.  Although, as I have stated, the accused was only 13 years of age when interviewed and had finished his schooling halfway through year 7, I am satisfied that, as his mother said, he is bright and street‑wise.  Having seen the videos when he was interviewed on two occasions and having observed him give evidence here in Court, I am satisfied that, despite his age and lack of education, he had no difficulty understanding what was occurring and was not overborne in the presence of the police officers or in giving evidence in this Court.

He has had experience with police in the past and I am satisfied that without any advice from Mrs Van Gaveren, he knew that he did not have to answer any questions asked of him by the police.  Indeed, I am satisfied that not only was he aware that he didn't have to answer any questions and that he willingly did answer questions, he was so confident in the presence of the police that he was able to ask them about his pending Court commitments and continually asked them during the course of the investigation what offences he was to be charged with.

I do not accept that Mrs Van Gaveren told the accused that it would be best for him to cooperate with the police or that he could be charged with perjury.  Neither of those matters were referred to by the accused in evidence.  In addition, I am satisfied that the accused never indicated by what he said or what he did, that he was other than cooperative and on no occasion would have arisen the necessity for Mrs Van Gaveren to suggest to C that he should be cooperative with the police.  I am satisfied that when Mrs Van Gaveren attended at the police station, she was given an opportunity to talk to the accused and that he was aware that she was there to look after his interests.  I am satisfied that whilst he was aware of that, his attitude and approach was that he really did not need her assistance or advice.

I am satisfied that before the field interview was undertaken, he was advised that he did not have to take part in it and that he signed Exhibit 1 with that knowledge.  I am further satisfied that at the commencement of the field interview, he was warned in appropriate terms that he did not have to answer questions.  The evidence of those present satisfies me that such a warning was given at a time when the video recorder was malfunctioning.  After the fault was detected and the recording proceeded, the warning was not repeated, but he was asked, ‘Do you agree that you came down here of your own free will?’, and he was further asked, ‘Was there any threat, promise or inducement to bring you here today?’

At the conclusion of the interview at the golf course, the accused was again asked, ‘Do you agree that you came here of your own free will?’, to which he replied, ‘Yes’, and was asked, ‘Has there been any threat, promise or inducement to make you come here or help us out today?’, and he replied, ‘No.’  After the interview at the golf course had concluded, the accused was conveyed back to Beenleigh Police Station where he was interviewed in a more formal record of interview. The accused gave evidence that prior to being interviewed, he was told that he might not be charged and that if he cooperated, the police would reduce the number of charges.

In considering all of the evidence given by C, I have kept in mind throughout that at the time of these offences, he was 13 years of age, that he is now only 14 years of age, that he has had limited schooling, that he cannot read and has difficulty writing, and that these events occurred over six months ago.  Having considered the evidence of Constables Bycroft and Collins, Mrs Van Gaveren and the accused, I am satisfied on the balance of probabilities that no such statements were made to the accused.  As I have previously stated, there was no occasion on which the accused indicated any unwillingness to cooperate with the police and there was accordingly no logical reason for the police to state to the accused that they may not charge him after his original admissions to his mother at the house, or that to get his cooperation they would charge him with less offences.

I have little doubt that the accused’s evidence as to being charged with lesser offences stem from questions he asked the police as to what he was going to be charged with and how many charges he was going to be charged with.  Nothing the police said at the time would have conveyed to him that if he cooperated, they may charge him with lesser offences or a less number of offences.

I am satisfied from the evidence of not only the police witnesses, but the evidence of the accused himself that he was cautioned on a number of occasions.  At the very least, he was cautioned before they left his mother's residence, at the police station before leaving for the golf course, which caution was set out in a document signed by the accused after that document had been read over to him, and explained both by the police and Mrs Van Gaveren prior to the commencement of the interview at the golf course, and finally, at the commencement of the formal record of interview.

On a number of occasions during his evidence, the accused stated that he knew he did not have to answer the police questions and that his answers could be used in Court.  There is no reason whatsoever to suggest that that wouldn't have been his factual understanding of the situation as at the 7th of April this year.  Indeed, when asked by the police in the record of interview to explain what the caution meant, C said, ‘I don’t have to say anymore and that those tape things, they can be used at Court from me.’  Again, at the conclusion of the formal record of interview, he was asked questions about voluntarily taking part in the record of interview and agreed that he had done so.  In particular, he was asked, ‘Did you feel like you had to answer these sort of things, have you been pressured into answering?’, and he answered, ‘No.’

In all of the circumstances, I am satisfied that the admissions made by the accused, both at the house, at the golf course and at the Beenleigh Police Station, were at all stages voluntarily made in the exercise of a free choice to speak or remain silent and are admissible as voluntary admissions.  There is nothing in the circumstances of this case which would lead me to exclude the admissions in the exercise of my discretion.”

(Other evidence given by Mrs Van Gaveren, including evidence that she advised the appellant to answer questions quickly and that, “if he didn’t answer questions in the right way, then he could be held for perjury in Court”, was rejected or disregarded.)

Earlier, the trial judge had said:

“As the accused was only 13 years of age at the time the admissions were made, it is also necessary to consider section 36(1) and (2) of the JuvenileJustice Act, together with the police commissioner’s instructions relating to the questioning of children.”

However, his Honour’s reasons for ruling that evidence of the appellant’s admissions ought be received involved no discussion of those provisions beyond what has been quoted.

Section 3 of the Juvenile Justice Act 1992 sets out its principle objectives which include:

“(b)to establish a code for dealing with children who have, or are alleged to have, committed offences; ...”

Further, sub-s. 4(b) states that one of the general principles underlying the operation of the Act is that:

“(b)because a child tends to be vulnerable in dealings with a person in authority a child should be given the special protection allowed by this Act during an investigation or proceeding in relation to an offence committed, or allegedly committed, by the child; ...”

Section 9E (formerly s. 36) provides:

“(1)In a proceeding for an indictable offence, a court must not admit into evidence against the defendant a statement made or given to a police officer by the defendant when a child, unless the court is satisfied that there was present at the time and place the statement was made or given, a person mentioned in subsection (2).

(2)The person required to be present is -

(a)a parent of the child; or

(b)a legal practitioner acting for the child; or

(c)a person acting for the child who is employed by an agency whose primary purpose is to provide legal services; or

(d)a justice of the peace other than -

(i)      a justice of the peace who is a member of the Queensland Police Service; or

(ii)     a justice of the peace (commissioner for declarations); or

(e)an adult nominated by the child.

(3)Subsection (1) does not apply if -

(a)the prosecution satisfies the court that there was a proper and sufficient reason for the absence of a person mentioned in subsection (2) at the time the statement was made or given; and

(b)the court considers that, in the particular circumstances, the statement should be admitted into evidence.

(4)This section does not require that a police officer permit or cause to be present when a child makes or gives  the statement a person whom the police officer suspects on reasonable grounds -

(a)is an accomplice of the child; or

(b)is, or is likely to become, an accessory after the fact;

in relation to the offence or another offence under investigation.

(5)This section does not limit the power of a court to exclude evidence from admission in a proceeding.”

In our opinion, the trial judge was not prohibited by s. 9E from admitting any of the evidence of admissions by the appellant which was received. All of the material admissions were made in the presence of either the appellant’s mother or a justice of the peace who was not excluded by sub-s. 9E(2)(d)(i) or (ii). There is no sufficient reason for implying qualifications into the categories of adult person who must be present by reference to the competency of that person, or his or her capacity to provide useful advice or assistance to the child, or to remember what occurred in his or her presence, including questions asked and the answers given. Any defect or deficiency in the role played by the adult person present, who obviously is intended to support the child, falls for consideration in the exercise of a court’s general discretionary power to exclude confessional evidence in a criminal proceeding, the applicability of which is recognised by sub-s. 9E(5).[1]

[1]See also sub-s. 4(e)(i).

In his ruling on the voir dire examination the learned trial judge recorded his conclusions that Mrs Van Gaveren was not a “good choice” to act as a person referred to in s. 9E of the JuvenileJustice Act 1992, and that although she was a qualified justice of the peace, he did not consider she was a person who should be used to “sit in an interview with juveniles”. She was not a person, his Honour said, who in his view fully understood the rights of a suspect being interviewed. Further, his Honour found Mrs Van Gaveren to be an unreliable witness. She gave evidence that she had told the appellant that if he made a statement to the police “it could be held in Court, and if it’s incorrect, it’d be - a charge of perjury maybe laid, and the best is to co-operate with the police ...”. His Honour rejected that evidence, as appears from a passage in the ruling quoted. Mrs Van Gaveren also said in evidence - and this evidence was not rejected by his Honour - that by the time she arrived at the police station she was a “nervous wreck”, that she was feeling “[a] bit annoyed because we were just about to have Easter dinner” (it was Easter Sunday), and was in “great pain”. She said, “I usually take pain tablets before I go out with the police, or if they call me, I take two Panadeine Forte to last me through the interview and to get me home again”.

So this was the justice of the peace: a “nervous wreck”, annoyed at being called out, not understanding the rights of the suspect, and - as if that were not enough - found to be unreliable in giving an account of the events in question.

The most that could be said from this is that the requirements of s. 9E were formally complied with. In fairness to Mrs Van Gaveren it should be observed that she was a less than completely willing participant in these events. In our view the cumulative effects of Mrs Van Gaveren’s shortcomings in her assigned role would have justified the rejection of the evidence of admissions made in her presence. Just as it is necessary that a suspect be in a fit physical and mental condition to be interviewed, so is it necessary for a person present when a child is being interviewed to be in a fit physical and mental condition to act in that role, otherwise formal compliance with s. 9E will be little more than a solemn farce.

Rejection of the evidence of the statements made by the appellant in Mrs Van Gaveren’s presence leads to the conclusion that the appeal should be allowed; as earlier noted, without admissions made in the course of those statements, there was no evidence that the appellant knew that he ought not do what he did when he acted as charged.

However, he should not have been questioned outside his mother’s house, contrary to the intent of the Juvenile Justice Act, and he should have been warned by police that he was not obliged to answer his mother’s questions in their presence.  The learned trial judge’s discretion miscarried in relation to all of the evidence objected to.

The appeal should therefore be allowed, the convictions quashed and verdicts of acquittal entered.