R v JPD
[2001] VSC 202
•3 April 2001
| SUPREME COURT OF VICTORIA | |
| CRIMINAL DIVISION | Not Restricted |
No. 1446 of 2000
| THE QUEEN |
| v. |
| JPD |
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JUDGE: | VINCENT, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF RULING: | 3 APRIL 2001 | |
CASE MAY BE CITED AS: | R. v. JPD | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 202 | |
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CATCHWORDS: Police interview – Voluntariness – Young offender – Practicability of arranging attendance of parent or guardian – Appropriate presence of independent third person – Section 464E Crimes Act 1958 – R. v. Warrell [1993] 1 VR 671; Collins v. R. (1980) 31 ALR 257; R. v. Anunga (1976) 11 ALR 257.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. W. Morgan-Payler QC | Office of Public Prosecutions |
| For the Accused | Mr. Graham Thomas | Victoria Legal Aid |
HIS HONOUR:
Prior to the empanelment of the jury in this matter, objection was taken to the introduction into evidence in the trial of the fact and substance of a conversation conducted between the accused and investigating police members at the offices of the Frankston Criminal Investigation Branch.
Although it was asserted in an outline of argument that the objection was directed to the voluntariness of the interview and the fairness of the admission of any statement made by the accused, together with an argument based upon public policy, as I now understand counsel's submissions essentially reliance is placed upon the proposition that there has not been strict or proper compliance with the statutory provisions governing the conduct of police interviews with persons of the age of the accused. There is in place, the argument proceeds, a statutory regime designed to ensure that any admissions made or statements uttered by a young person in the course of an interview can be perceived clearly as voluntary, that there is no unfairness attached to the circumstances in which they were obtained and ultimately, that the investigative process and any conviction which may result from it possess moral as well as legal integrity.
Reference was made in this context to some remarks made by the Court of Criminal Appeal in R v. Warrell.
I have had the opportunity of hearing from a number of police members who were involved in the interview process, as well as Mr Blake, who participated in the role of an independent third person. I have also heard from the accused and his father. Although counsel did not persist with an argument that the Crown had not established that the statements made by the accused were voluntary, I have nevertheless directed attention to that question. Without setting out the detail of the evidence on this aspect, the course that I consider is appropriate where issues of credibility arise on a voir dire is that it is sufficient to say that I do not accept the assertions of the accused that statements attributed to various members of the police force and Mr Blake can be accepted. I am satisfied on the balance of probabilities that the accused well understood that he had a choice to speak or remain silent and that he adjudged it to be in his interests to provide a version in which he attributed responsibility for the death of the deceased falsely to two specific individuals. There is nothing in the circumstances which would justify the exclusion of the evidence either on the ground of unfairness or on the basis of public policy considerations.
I will address in due course the specific assertions that have been made with respect to compliance with the statutory regime when I provide a formal statement of reasons. However, I do not believe that it has been demonstrated that there has been in any event any deliberate noncompliance with the relevant statutory provisions, nor do I consider that the inference could be properly drawn that the investigating members acted with wilful blindness or in disregard of the rights of the accused. As indicated, I will provide a more satisfactory exposition of my reasons in some more recognisable form of the English language in due course.
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CERTIFICATE
I certify that this and the 1 preceding page is a true copy of the reasons for ruling of Vincent, J. of the Supreme Court of Victoria delivered on 3 April 2001.
DATED this 3rd day of April 2001.
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Associate
FURTHER STATEMENT OF REASONS FOR RULING
HIS HONOUR:
Prior to the empanelment of the jury in this matter, objection was taken to the introduction into evidence, in the trial of the fact and substance of a conversation conducted between the accused and investigating police members at the offices of the Frankston Criminal Investigation Branch.
It was asserted in an outline of argument, which is attached as an appendix to this statement of reasons, that the objection was directed to the voluntariness of the interview and the fairness of the admission of any statement made by the accused, together with an argument based upon public policy.
As I now understand counsel's submissions, however, reliance is essentially placed upon the proposition that there was no proper compliance with the statutory provisions governing the conduct of police interviews, with persons of the age of the accused. Parliament has put in place, the argument proceeds, a statutory regime designed to ensure that any admissions made or statements uttered by a young person in the course of an interview, can be perceived clearly as voluntary; that there is no potential unfairness associated with their admission, having regard to possible sources of unreliability and the circumstances in which they were obtained; and ultimately, that the investigative process and any conviction which may result from it, possess moral as well as legal integrity. This last consideration raises, it is said, an important question of public policy in the context of the present case.
Reference was made to support these arguments to some remarks made by the Court of Criminal Appeal in R. v. Warrell [1993] 1 V.R. 671 where it was said:
"The basic proposition was stated clearly by Dixon J (as he then was) in McDermott v R. (1948) 76 CLR 501 in the following terms, at 511:
'At common law a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made. This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary.'
When considering the application of that test in any given situation, it is important to keep in mind the much later expression by Brennan J of the Federal Court (as he then was) in Collins v R. (1980) 31 ALR 257, at 30; that, 'Voluntariness is not an issue to be determined by reference to some hypothetical standard: it requires a careful assessment of the effect of the actual circumstances of a case upon the will of the particular accused'.
A little earlier in his judgment, his Honour had remarked, at 307:
'The conduct of police before and during an interrogation fashions the circumstances in which confessions are made and it is necessary to refer to those circumstances in determining whether a confession is voluntary. The principle, focusing upon the will of the person confessing, must be applied according to the age, background and psychological condition of each confessionalist and the circumstances in which the confession is made.'
Superimposed upon this framework are principles of fairness and public policy, the application of which may result in the exclusion of a voluntarily made statement in the exercise of judicial discretion.
…
These concepts of voluntariness, fairness, and public policy are integral to the operation of our criminal justice system. They are designed to ensure that any finding of guilt arrived at, on the basis of confessional evidence, is not only reliable but that the evidence itself has been obtained in a socially acceptable fashion. It is important to keep in mind, in this context, that they are concerned not only with the recognition and protection of the rights of those who may be suspected of the commission of criminal offences, but that any such finding is not surrounded by an aura of possible injustice which compromises both the system and the society which supports it.
It is against this background that, over recent years, there has been increased attention given to the problems encountered by specific groups within our community with respect to our investigative and legal processes. The need for the adoption of special procedures when dealing with children has long been accepted. In certain parts of the country, guidelines have been developed for the interrogation of aboriginal offenders: see R. v Anunga (1976) 11 ALR 412, where the need for additional care to be taken in the interviewing of persons whose ethnic background may place them at significant disadvantage to other members of the community, was also identified.
More recently, the special position of the intellectually disabled has been receiving increased attention. The particular instructions, to which attention has been directed in the present case, represent part of a process which has been underway for some time to ensure that the principles that we have earlier mentioned have practical operation with respect to the interrogation of intellectually disabled persons and that the rights which the law states are possessed by every member of the community can, as a matter of practical reality, be exercised by those who are so disadvantaged." per Phillips, C.J., Hampel and Vincent, JJ. at pp.679-682
I have had the opportunity of hearing from a number of police members who were involved in the interview process, as well as Mr. Blake, who participated in the role of an independent third person. I have also heard from the accused and his father. Although counsel did not persist with an argument that the Crown had not established that the statements made by the accused were voluntary, I have nevertheless directed attention to that question. Without setting out the detail of the evidence on this aspect, the course that I consider is appropriate where issues of credibility arise on a voir dire is that it is sufficient to say that I do not accept that the assertions by the accused, concerning conduct which he attributed to various members of the police force and Mr. Blake, can be accepted. I am satisfied on the balance of probabilities that the accused well understood that he had a choice to speak or remain silent, and that he adjudged it to be in his interests to provide a version in which he falsely and deliberately placed responsibility for the death of the deceased upon two specific individuals. I also consider that there is nothing in the circumstances which would justify the exclusion of the evidence either on the ground of unfairness or on the basis of public policy considerations.
With respect to the assertions that there was no compliance with the statutory regime applicable to the conduct of interviews with young persons, I do not consider that this complaint has been made out. Section 464E of the Crimes Act requires that:
"464E.
(1)If a person in custody is under the age of 17 years, an investigating official must not, subject to sub-section (2), question or carry out an investigation under section 464A(2) unless –
(a)a parent or guardian of the person in custody or, if a parent or guardian is not available, an independent person is present; and
(b)before the commencement of any questioning or investigation, the investigating official has allowed the person in custody to communicate with his or her parent or guardian or the independent person in circumstances in which as far as practicable the communication will not be overheard.
…"
The evidence discloses that the investigating police members were conscious of their obligations under this provision and some endeavours were made to secure the attendance of a parent of the accused. I accept that the impression was formed that, for one reason or another, this was unlikely to be arranged. I am satisfied that the steps which were taken in this regard were reasonable in the circumstances as was the decision to secure the attendance of an appropriate independent person. As counsel for the accused accepted in his submissions, the availability of a parent or guardian is essentially a question of fact but it does involve the assessment of the practicability of arranging attendance in the particular circumstances having regard to the situation of the young person and the investigation. In the present matter, when it appeared that the presence of a parent could not be secured, at least for some time, a clearly appropriate independent person was contacted.
Even if I am incorrect in my understanding of the terms and effect of s.464E, the participation in the interview by the accused was voluntary and I am able to see no justification for the exclusion of the evidence in the exercise of discretion. It has not been demonstrated, in my opinion, that there has been any deliberate non-compliance or wilful blindness or casual disregard of the rights of the accused or any other consideration present which would require the exclusion of the evidence on public policy grounds. There was nothing in the circumstances as disclosed by the evidence given on the voir dire, that would enliven the discretion to exclude the evidence on the basis of the unfairness of its admission in the trial. And finally, the impugned evidence possesses probative value and there is no counter-balancing prejudicial impact capable of affecting the situation.
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APPENDIX
The Director of Public Prosecutions v. JPD
Outline of Argument
Section 464E of the Crimes Act 1958 requires "a parent or guardian" to be present before questioning commences. It is only if a parent or guardian is not available that an independent person is a statutory alternative.
Availability is a question of fact, but it is submitted
(a) wilful blindness by police as to availability;
(b) indications to police that a parent is on his/her way to a police station where questioning is to occur;
are matters which are relevant to this question.
The principles in relation to the questioning of young persons embodied in s.464E, which includes the right to have a parent present rather than an independent third person when available should be supported as a "practical reality".
R. v.Warrell (1993) 1 V.R. 671 at p.681
DPP v. Blake (1989) 89 Crim. App.R. 179 at p.187
Non-compliance with s.464E gives rise to the common law discretion to exclude the interview. The authorities in relation to non-compliance with s.464C are relevant, but with an extra element in that a young person with both s.464E and s.464C rights is being questioned.
R v. Perecep (1993) 2 V.R. 109
Questions of fact as to conversations with police and the independent third person may arise, and together with the answer made by the accused to Question 4 in the initial interview of 30/11/99 may give rise to a question of voluntariness and/or the fairness discretion. These issues are the product of non-compliance with s.464E and it is submitted go the seriousness of the breach.
In the alternative, the interview should not be admitted into evidence as it is involuntary, and/or should be excluded in the exercise of the fairness discretion.
R. v. Li (1993) 2 V.R. 80
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