R v DN

[2019] NSWDC 492

District Court

New South Wales

Medium Neutral Citation:	R v DN [2019] NSWDC 492
Hearing dates:	29 - 30 April 2019
Date of orders:	01 May 2019
Decision date:	01 May 2019
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	Record of Interview, admissions and journal sought to be admitted are excluded.
Catchwords:	EVIDENCE — Admissions — Criminal proceedings — Improperly obtained EVIDENCE — Discretions — Exclusion of evidence — Admissions CRIME — Child sex offences — young offender
Legislation Cited:	Criminal Procedure Act 1986
Category:	Procedural and other rulings
Parties:	Regina (Crown) DN (Accused)
Representation:	Counsel: M Fox (Crown) P Williams (Accused)   Solicitors: Solicitor for Director of Public Prosecutions (Crown) Jennifer Chalker Lawyer (Accused)
File Number(s):	2018/00043130; 2018/00386382
Publication restriction:	Any identifiers of accused, victims, witnesses

Judgment

1. In any published version of this judgement (other than to the parties or for use in other courts) a pseudonym 'DN' will be used for the name of the accused, who was at the relevant times was a child.

2. Pseudonyms 'AB' and 'CD' will be used for the victims.

3. Pursuant to s15A Children (Criminal Proceedings) Act 1987, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of any child.

INTRODUCTION

4. Application is made for the exclusion of the record of interview conducted by police with the young person on 30 October 2017.

5. The applicant was 12 years of age at the time.  The young person admitted licking AB’s vagina on two occasions and asking his sister CD to suck his penis.  This admission does not form the basis of any count on the indictment.  He said that he did these acts because he was shown by his cousin: question 188 and answer, question 193 and answer.  He told his mother it had been happening to him for three years.

6. In relation to AB, he admitted that three months before, from the date of the interview, she was laying down on her bed and he licked her wee wee:  See question 215 and answer.  At the time he made that admission, he was reading from a note that he had made and was brought to the police station by his mother.  At questions 544 to 550, he told the police that his mother got him to write it and that he did not want to write it, but his mother said he had to write it down so she could understand it.

7. To understand the application, it is necessary to outline a chronology of events.

CHRONOLOGY OF EVENTS LEADING UP TO THE ERISP

8. The day prior to 30 October 2017 the accused admitted to his grandmother, that he had "licked AB’s private part". The grandmother exhorted the accused "to tell the truth otherwise it will keep coming up again": See exhibit VD5 at [8]. The next day 30 October 2017, the mother of the accused collected the accused and took him to the Bega Police Station. The grandmother met them there.

9. On Monday 16 October 2017 Senior Constables Clarke and Jory attended an address in Bermagui as a result of a complaint made by the mother about the conduct of her son DN to AB.  Admissions were made by the young person to the police.  I will deal with those admissions in a separate judgment.

10. Custody management records (Exhibit VD12) indicate the following:  at 11.05am, Sergeant Joanne Mayer, the custody manager, read to the young person and his grandmother the caution and summary of pt 9 (VD9).  It was signed by the young person and the grandmother.

11. I have watched the ERISP and it appears to me the way the young person answered the questions, he may suffer from a cognitive deficit.  It may have been prudent for Sergeant Mayer to have the 12‑year‑old young person read to her the document or part of the document so she could ascertain if he had a cognitive deficit.

12. At 11.43 to 12.07, the young person and the grandmother had a conversation with the Children's Legal Aid Service.  At the completion of that conversation, Sergeant Mayer spoke to Marija Ivanovski, solicitor, and was advised that the young person did not want to be interviewed.

13. Shortly after that conversation, Ms Ivanovski sent an email to Sergeant Mayer:  Exhibit VD10.  The email reads:

"Dear Sergeant Mayer (CM at Bega Police Station) re DN currently at Bega Police Station.  This letter is to confirm what I have just told you in a telephone conversation.  The young person DN does not wish to be interviewed and will not provide any form of written statement.  The young person does not wish to record his refusal to be interviewed electronically on ERISP or handheld voice video recorder or otherwise.  The young person does not wish to make any written or oral statement or comment about the allegations.  The young person wishes to exercise his right to silence.  We note that the New South Wales Police Force Code of Practice for Crime states, 'You do not have the power to compel or intimate to the suspect that they must participate in an electronic recorded interview for the purposes of recording their refusal.  Record the refusal in your notebook.'  We also note Police Circular 05/02 attached for your reference.  Please ensure that no questioning, interview or recording takes place with this young person.  If there is any problem or change to these instructions, then please contact the Legal Aid Youth Hotline as any change must be confirmed after further legal advice.  Please ensure a copy of this letter is noted in the custody management record.  Yours faithfully Marija Ivanovski, Solicitor, Youth Hotline."

14. There is a conflict in the evidence as to what happened next.  That conflict is between the mother and grandmother.  It is not necessary for me to resolve this conflict for reasons which will become apparent.

15. The mother, in exhibit VD5, at [10] says:

"I remember that DN had a phone call from Legal Aid.  He spoke with that person on the phone and then I spoke with that person also.  After the phone call, I went and spoke to [the grandmother].  (I was upset by what the Legal Aid person said).  I wanted to be sure that this was the right thing to do."

16. On the voir dire, she said that the upset was "the term that they said he could be sentenced for":  see T45, line 44.  The grandmother spoke to her daughter, then returned to the room with DN.  They then went to an interview room and the interview commenced.

17. Sergeant Mayer in her evidence yesterday conceded that VD10 was a clear instruction that the young person wished to exercise his right to silence and that if that position changed, then the Legal Aid Youth Hotline must be contacted and any change must be confirmed after further legal advice.  She further conceded that she did not contact Ms Ivanovski again and she did not know why she did not, but agreed that she should have done so.

18. At 12.07, the police were told by the young person's lawyer he was not to be interviewed and if that position changed, that the lawyer was to be contacted.

19. After a discussion with his grandmother, who had been nominated as the support person for the young person by the mother, and without further reference to the lawyer, the young person was taken to an interview room at 12.15.  At 12.28 the interview commenced.  It did not cease until 13.49.  At 13.03 Sergeant Mayer received the confirmatory email.  I note that in her evidence she told the Court that she spoke to the lawyer and spoke to the lawyer in essence about what was then sent later as the confirmatory email therefore she having knowledge that the young person was not to be interviewed and if that position changed then the youth hotline had to be contacted.  Sergeant Mayer believes that she showed that email to Detective Emerton:  T68, lines 31 to 37.

20. Detective Emerton gave evidence that she spoke to Sergeant Mayer. She could not recall the exact conversation which was minimal but the young person had received advice not to be interviewed:  T79, lines 27 to 44.

THE INTERVIEW

21. The interview commenced at 12.28pm and concluded at 1.49pm.  The young person was asked 589 questions.  In the interview he was asked about the documents read to him by Sergeant Mayer.  At question 10 he was asked this, "Yep do you know what those documents were?"  Answer, "Um, something to do with it or something."  He was then asked a number of questions about legal advice.  At questions 29 to 32 the following occurred. 

Question 29

"Q.  All right, and that you may seek legal advice if you want to?

A.  Yeah.

Q.  Okay, and do you understand what I mean by that?

A.  No.

Q.  Okay, so that means that you can get some advice from somebody if you want to?

A.  Okay.

Q.  Do you agree that your grandma was with you when this was read out to you?

A.  Yes."

22. At question 37 he was asked this, "And so do you agree that when you were talking to Sergeant Mayer that you actually did get some legal advice?"  Answer, "Yes".  At questions 47 through to 53 the following took place:

Question 47,

"Q.  When that happened,"

23. And I interpolate here he was being asked about the legal advice,

"Q.  Okay, all right, so when you spoke to Marija she explained to you your rights?

A.  Yes she did.

Q.  She did?  And did you understand those?

A.  Yes.

Q.  All right, so again I'll just reiterate that you don't have to say anything if you don't want to.  Did she discuss that with you?

A.  Yes.

Q.  Yeah, and did she explain to you that there are different rules for young people?

A.  Yes.

Q.  Yeah, can you tell me about that?

A.  Mm.

Q.  Do you remember what she said?

A.  No, quite, but it was something to do because I'm only 12.

Q.  Yeah?

A.  Years old, it, ah, something to do with I can't I, sorry, I can't remember."

24. That exchange indicates to me that there may have been a cognitive deficit on the part of the young person in that he was unable to recall the substance of a recent conversation.

25. A further example is found at question 435 and the answer thereto when the young person was asked about right and wrong behaviour and said this,

"Right behaviour because you're thinking about well if you would get in trouble, I don't atch [sic], if it, if, if it was wrong you would do it.  But if you were thinking about it then do it, it's still wrong but if you thought about it and you did do it that was right, mean, I dunno." 

26. The Crown submitted that this answer showed great intellect on the part of the young person.  I disagree.  It suggests to me cognitive deficiencies on the part of the young person.

27. During the course of the interview there were several occasions where the young person looked at his grandmother for affirmation and support.  On each occasion the grandmother was in tears and looking at the floor.  I do not need to decide the point but she may not have been an adequate support person for the young person, particularly in light of her exhortation to the young person the previous evening where she said, "Mate, you have to tell the truth otherwise it will keep coming up again":  Exhibit VD5, para 8.

THE SUBMISSIONS

28. Mr Williams relied upon s 90 and s 138 of the Evidence Act for exclusion of the ERISP.  The Crown submitted that it was a balancing exercise and the evidence had high probative value and was important.  I have during the voir dire, considered admissions made by the young person to his mother and grandmother about his conduct to AB.  I have ruled that the Crown can adduce those admissions.

CONSIDERATION

29. A 12 year old boy was about to be interviewed by police about sexual penetration of a person under 10 years.  The offence is held to be of such seriousness that parliament has mandated a statutory maximum penalty the same as murder, namely life imprisonment. 

30. Any accused person has the right to remain silent.  The young person wished to exercise that right after he had sought legal advice.  His lawyer made it clear to the custody officer that the young person was not to be interviewed.  His lawyer further stated, "No questioning interview or recording takes place with this young person if there is any problem or change to these instructions then please contact the legal aid youth hotline as any change must be confirmed after further legal advice." 

31. There was a discussion between the young person and the grandmother who had previously delivered an exhortation to the young person and the mother who had insisted he write an admission against his interests that was to be used against the young person.  After that discussion he submitted to an interview.

32. No attempts were made by the police as a result of the change of his position to contact the legal aid youth hotline to confirm such a change after further legal advice.  The police were aware of this requirement but pressed ahead without attempting to contact legal aid.  The young person should have been afforded the ability to seek further advice before the interview commenced.

SECTION 138 CONSIDERATION

33. Obtaining evidence in a deliberate, wilful or even reckless disregard of an individual's rights is a strong factor against the exercise of the discretion to admit the evidence.  I find contrary to the legal aid request that they be contacted due to any change and their requirement to give further legal advice to the young person that this was not done.  It was done so recklessly without thinking through the consequences.  It disentitled the young person to exercise his important right of the right to silence.  The police acted improperly.  This was not a mere oversight.

34. Section 138 is designed to think through and balance those consequences when an individual's rights have not been adhered to due to improper conduct on the part of the police.  It is a balancing exercise and I take into account s 138(3) and all of the matters listed therein and more particularly the following matters,

1. The age of the young person.  He was 12, he was a child. 

2. The seriousness of the charges. 

3. As to the importance of the evidence I have over objection ruled in the admissions made by the accused to his mother and grandmother as to his purported criminal conduct to AB and the admission contained in the document found by SB.

35. As I have previously stated the actions of the police were reckless but they denied the young person of a fundamental and important right to remain silent.  Such a right should not be eroded by conduct that was reckless or any other form of conduct.  The right is so significant and even more so when a 12 year old child is involved.  Children require protection and that is why we have statutory safeguards.  As a minimum standard our society expects that a child should not lose his rights by those we entrust with powers of law enforcement.  The conduct of the police was clearly inconsistent with those standards. 

36. Accordingly I exclude the record of interview.

37. I note that the young person subsequent to this interview in November 2017 attended the Narooma Police Station for further interview. 

"He spoke to the custody manager, he got legal advice, he decided he didn't want to be interviewed anymore and he told me that he didn't want to be interviewed anymore":  Detective Emerton, Transcript 73, lines 3 to 6. 

38. This is an example of how it should have been.  The accused gave Detective Emerton a note, exhibit VD13 at Narooma. 

39. I also exclude that note, the young person exercised his right to remain silent and the note should never have been received.

40. I note also that the young person attended for an interview in December in the company of his father who has supported him and sat with him throughout the trial.  On that occasion he exercised his right to silence.  The right to silence is a fundamental right and assumes high importance with a vulnerable child, as the accused is, who after advice exercised that right on two separate occasions.  His rights were disregarded and overridden on 30 October 2017.

41. If I had not exercised my discretion under s 138, I would have excluded the interview under s 90 as unfair to use it against the young person.  The term "unfairness" is an amorphous term whose metes and bounds cannot be described exhaustively, but suffice to say, in taking into account all of the circumstances in which the admissions were made, it would be unfair to admit this evidence.

42. The accused makes application to exclude admissions made to Senior Constables Jory and Clarke on 16 October 2017 at the home of the young person.  The police attended as a result of a complaint made by the young person's mother about the conduct of the young person towards his sister, AB. 

43. Senior Constable Clarke gave the young person what might be described as a cursory warning.  He said, "Oh, okay, you know you don't have to talk to me if you don't want to and if you do, Rob here will write down what we say which can be used in Court."  He said, "Yeah." 

44. Senior Constable Clarke failed to ask the child what he understood by this warning.  He then proceeded to ask a number of questions which elicited the following responses: 

"During the conversation I asked DN, 'Why did you do that to your sisters?', and he replied, 'Because I was sexually abused and it made me feel bad and when I get angry, I want to make them feel bad by doing that.'  I said, 'By doing what?', and he replied, 'When they were sleeping, I licked my sister.  She didn't like it.'  DN also told me at some point in the discussion that he kept a journal.  I asked him if I could have a look at it and he showed me.  In the journal it said that he felt bad about licking his sister and that he did it because he was angry.":  VD16 paras 11 to 12.

45. Senior Constable Jory took notes of the conversation and recorded the following:  "Whilst at the kitchen table DN admitted to the earlier incident with his sister, AB.  DN stated, 'I licked her, mum.  I enjoyed it.'  DN further admitted that about three months ago, AB had come out of the bathroom naked past DN.  He said, 'She made feel funnily, so I put AB in her bedroom and licked her.  She didn't like it.'  During our discussion, DN also admitted to assaulting both his sisters, because he had been sexually assaulted himself.":  VD6 para 10.

46. Senior Constable Jory gave evidence on the voir dire.  He did not read his notes to the child, nor did he have the child sign the notes as being true and correct.  Senior Constable Jory had a DVEC camera on him.  He had used it on previous occasions, but he did not see fit to use it on this occasion to ensure a transparent electronic record as to what took place.

47. Section 281 of the Criminal Procedure Act 1986 is applicable. That section applies to admissions. The admissions were made in the course of official questioning by an investigating official and it related to an indictable offence that could not be dealt with summarily: s 281(1)(a)-(c).

48. Section 281(2) prohibits the admissibility of the admission unless there is available to the Court a tape‑recording of the interview: s 281(2)(a)(i). This was not done, but could have been done or the prosecution can establish a reasonable excuse as to why the recording could not be made: s 281(2)(a)(ii).

49. No reasonable excuse is proffered on behalf of the Crown, nor could it be.  The police had the ability to record it, but they did not turn their minds to it.  This is not a reasonable excuse.

50. The admissions could have been confirmed in the interview on 30 October 2017 which would have made them admissible: s 281(2)(a)(ii). They were not confirmed in the ERISP.

51. Accordingly, the admissions are excluded, as is the journal shown to Senior Constable Clarke.

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Decision last updated: 18 September 2019