R v KS (No 2)

[2023] NSWSC 1475

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v KS (No 2) [2023] NSWSC 1475

Hearing dates:

21 June 2023; 22 June 2023

Date of orders:

22 June 2023

Decision date:

22 June 2023

Jurisdiction:

Common Law

Before:

Yehia J

Decision:

The record of interview conducted with KS on 18 September 2021 is not admissible

Catchwords:

CRIME — Murder — Where the young person is a 16 year-old child — Where the young person has pleaded guilty to murder — Where there is an issue as to the basis of murder — Whether the young person is to be sentenced on the basis of an intention to kill or an intention to inflict grievous bodily harm — Where the prosecution relies upon the Electronically Recorded Interview (ERISP) as part of the evidence supporting an intention to kill — Where the ERISP contains an admission of an intention to kill — Whether the custody manager “assisted” the young person to obtain legal advice — Whether the support person fulfilled that role appropriately — Something more required than a “cardboard cut-out” — Whether the young person was essentially “left to his own devices”— Whether there was an obligation on the police to obtain consent from the young person as to the nominated support person — Whether the evidence was obtained improperly or in contravention of an Australian law — Having regard to the circumstances in which the admission was made, whether it would be unfair to use the evidence — Strict protections afforded by LEPRA provisions — ERISP not admissible

Legislation Cited:

Child Welfare Act 1939 (NSW), s 81C

Crimes Act 1900 (NSW), ss 18(1)(a), 33(1)(b)

Evidence Act 1995 (NSW), ss 4, 90, 138, 138(1), 139

Income Tax Assessment Act 1936 (Cth), s 46(3)

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Pt 9

Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW), regs 24, 25, 28, 29, 30, 37

Children (Criminal Proceedings) Act 1987 (NSW), ss 13, 13(1)(a), 13(1)(a)(i), 13(1)(a)(ii), 13(1)(a)(iii), 13(1)(a)(iv), 13(2), 13(3)

Cases Cited:

Director of Consumer Affairs Victoria v Glenvill Pty Ltd [2009] VSC 76

Em v The Queen (2007) 232 CLR 67; [2007] HCA 46

Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106; [1971] HCA 12

Parker v Comptroller-General of Customs [2009] HCA 7; (2009) 83 ALJR 494

R v Aquilina [1978] 1 NSWLR 358

R v Duncan and Perre [2004] NSWCCA 431

R v Dunn (Court of Criminal Appeal (NSW),15 April 1992, unrep)

R v FE [2013] NSWSC 1692

R v H (AChild) (1996) 85 A Crim R 481

R v Hawat(No 3) [2019] NSWSC 1701

R v Mercury [2019] NSWSC 81; (2019) 276 A Crim R 325

R v MEYN, John Michael (No 1) [2012] NSWSC 1441

R v Phung and Huynh [2001] NSWSC 115

R v Tang [2001] NSWCCA 210; (2001) 122 A Crim R 206

R v Tarantino (No 6) [2019] NSWSC 1174

R v Cotton (1990) 19 NSWLR 593

R v Swaffield; Pavic v The Queen (1998) 192 CLR 159; [1998] HCA 1

R v Williams (Supreme Court (NSW), Roden J, 9 August 1982, unrep)

R v Warren [1982] 2 NSWLR 360

R v Camilleri (2007) 68 NSWLR 720; [2007] NSWCCA 36

Robinson v Woolworths Ltd (2005) 64 NSWLR 612; [2005] NSWCCA 426

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34

Texts Cited:

D Pearce, Statutory Interpretation in Australia (9th ed, 2019, LexisNexis Butterworths)

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 2 March 1977

Category:

Procedural rulings

Parties:

Rex (Crown)
KS (Young Person)

Representation:

Counsel:
L Shaw (Crown)
P Krisenthal (Defence)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid Commission (NSW) (Defence)

File Number(s):

2021/00266751

Publication restriction:

Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), a non-publication order extends beyond the young person’s name, the name of the deceased, the name of BK, to the names of all witnesses who are mentioned during the course of these proceedings, and the name of relatives. The order also extends to the addresses mentioned in the proceedings and any reference to the location of XXX

JUDGMENT

Introduction

1. On 22 June 2023, I ruled that the Electronically Recorded Interview (ERISP) conducted with KS, on 18 September 2021, was inadmissible. These are my reasons for that ruling.

2. KS (also referred to as the “young person” or “child”) pleaded guilty to two offences, namely one count of murder, contrary to s 18(1)(a) of the Crimes Act 1900 (NSW), and one count of inflicting grievous bodily harm with intent to cause grievous bodily harm, an offence contrary to s 33(1)(b) of the Crimes Act.

3. KS pleaded guilty in the Children’s Court and was committed for sentence to this Court. The sentencing proceedings came before me on 21 June 2023. Although a plea of guilty had been entered to both offences and a Statement of Agreed Facts prepared, an issue arose as to the admissibility of the ERISP in the sentencing proceedings. In relation to the offence of murder, KS entered his plea of guilty on the basis that he had formed an intention to inflict grievous bodily harm.

4. The Prosecutor relied upon the ERISP in support of the contention that KS be sentenced on the basis that he formed an intention to kill the deceased. The ERISP was conducted with KS on 18 September 2021, at 2:24am, a short time after his arrest.

5. KS objects to the tender of the ERISP. Mr Krisenthal, on behalf of the young person, relied on three bases for the exclusion of the ERISP:

1. First, a breach of s 13 of the Children (Criminal Proceedings) Act 1987 (NSW) (CCPA).

2. Secondly, the evidence was obtained as a result of an impropriety or in contravention of an Australian law: see s 138 of the Evidence Act 1995 (NSW).

3. Thirdly, having regard to the circumstances in which the admission was made, it would be unfair to the young person to use the evidence: see s 90 Evidence Act.

6. This judgment is concerned with the issue of whether the ERISP is admissible. I direct that the rules of evidence apply in the sentencing proceedings: see s 4 of the Evidence Act.

The Offences

7. On the night of 17 September 2021, at approximately 5:30pm, the deceased and BK attended XXX, near the southern XXX headland, where they had a gathering with a group of friends. The group, including the deceased and BK, were drinking alcohol.

8. At around 7:45pm, the deceased, BK and JT caught a bus from XXX headland to the tennis courts at XXX, and then walked under the highway and into XXX. They were in the area to attend a friend’s birthday party which was being held in the bush near XXX. The bush is located at the western end of XXX. The three decided to stop at LK’s house which is very close to the home of KS.

9. The group, including the deceased and BK, referred to LK’s house as a “trap house” because they believed that drugs were used at the premises. In 2019 and 2020, LK had been warned, and subsequently charged, for the possession and supply of prohibited drugs. KS had visited the house during the day but had since returned to his home.

10. The deceased, BK and JT walked onto XXX Road via a rear lane between XXX Road and XXX Street. The three walked underneath the highway and turned left, taking a rear lane towards XXX Road that runs generally parallel to the XXX. The path ends at XXX Road and leads directly into the end of a cul-de-sac.

11. KS was sitting with his mother and stepfather around the fire inside his own property’s rear yard when the deceased, BK and JT walked down the rear lane behind their property. The three boys could be heard by the people in the backyard.

12. As they approached LK’s house, the deceased, BK and JT, started yelling out words to the effect of “[LK] you dumb drug cunts” and similar abuse, in loud voices. This could be heard by KS, his mother and stepfather. The abuse was periodic and not consistent. KS was warned by his mother and stepfather not to go into the rear lane. He should have listened to them. Instead, he went into the house and took possession of a knife, before leaving the property and heading for XXX Road via this same laneway. Neither his mother nor his stepfather was aware that he had left the house.

13. BK approached the house whilst the deceased and JT remained back in the cul-de-sac near the pathway entrance. BK described the area as really dark and with limited visibility. KS approached them and stabbed the deceased in the chest, causing him to fall to the ground. KS said nothing before stabbing the deceased. The deceased died shortly thereafter, from this single stab wound.

14. KS then approached BK from behind, holding the knife, and stabbed him in the rear left shoulder. BK turned around when he was then stabbed in the left hip.

15. BK tried to run away, jumping a hedge of a neighbouring house, and tried to run westward on XXX Road. He realised the extent of his injuries and stopped running. He sought help at a house nearby and collapsed on the front porch. JT chased after BK. Upon finding him, he called “000” emergency services.

16. KS spoke with LK, the latter noting that KS was “freaked out”. He appeared panicky, was talking fast and shaking. KS said: “[KA’s] been stabbed ... I don’t know what to do”. LK told KS to: “Calm down … I’m sure it will be alright”. At that point, KS was fully aware of what he had done but not aware of the extent of the harm inflicted.

17. After hearing the commotion, KS’s mother and stepfather entered XXX Road. They found the deceased lying on the road and attempted to perform cardiopulmonary resuscitation (CPR) on him, with the assistance of a female neighbour. Tragically, the attempts to save him were unsuccessful.

Psychological Assessment

18. Dr Collins, Clinical and Forensic Psychologist, conducted an assessment of KS and prepared a report dated 5 June 2023. Dr Collins noted that most of the witness statements described KS as “gentle” and that he was known to experience mental health symptoms. Others described him as “shy” and “nerdy”, and someone prone to be bullied. Dr Collins made the following observations:

“I observed [KS] interacting with a staff member while we were waiting to exit the visits area. The interaction was appropriate and mild mutual fondness was observed, however [KS] conducted himself in a playful manner. Overall, the contact appeared immature and more consistent with an individual who is considerably younger than [KS], noting that he was almost 18 years old at the time of the interview.”

19. Having been specifically asked to comment on KS’s level of maturity, Dr Collins stated:

“Maturity refers to a range of behavioural, cognitive and emotional skills that a young person should develop. These include the capacity to regulate one's emotions, demonstrate behavioural self-control, perspective take, problem solve, consider the consequences of one's actions, and identity formation. It is my view that [KS’s] maturity is below what would be considered typical for his age. He has shown difficulty regulating his emotions and behaviour as well as considering the consequences of his actions. He has struggled with identity formation, with problems forming relationships with others and experiences of bullying. He has struggled to resolve problems and issues, leading to impetuous behaviour. He can also act in a playful manner that would suggest he is younger than his actual age.”

The ERISP

20. At 9.55pm on 17 September 2021, Senior Constable Edwards and Senior Constable Yeo arrived at Belmont Police Station with KS. KS was placed into the custody of Sergeant Steven Carlos, the appointed custody manager. The custody management record notes the following:

1. pending custody was submitted at 11:11pm on 17 September 2021;

2. the young person was not affected by intoxicating substances;

3. there is a reported history of having attempted self-harm in the past; and

4. this was the first time that the young person had been arrested and placed in police custody.

21. At 12:40am on 18 September 2021, Mr Andrew Stewart, the young person’s uncle, entered the charge room and spoke to Sergeant Carlos. Sergeant Carlos completed a form titled “Role of Support Person Form” and asked Mr Stewart to sign the form.

22. Andrew Stewart had been contacted by the young person’s mother, Andrew Stewart’s sister, at 1am on 18 September 2021. She did not tell him the details of what had happened except to say that KS had been involved in something “really bad” and she needed him to attend Belmont Police Station to be with KS.

23. Mr Stewart made a statement to the police, dated 10 April 2023, in which he set out the contact he had with his sister and his attendance at Belmont Police Station. Mr Stewart stated that the custody manager explained to him that KS had been arrested for murder and that Mr Stewart was being asked to act as his support person. Mr Stewart understood that his role was to assist KS in making decisions and to make sure that KS understood what was happening.

24. At about 12:45am, Sergeant Carlos handed KS a Form 31 Summary of Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA). This form was read and explained to KS by Sergeant Carlos. While reading the form to the young person, Sergeant Carlos said: “While in police custody, you do not have to say or do anything but, anything you do say or do may be used in evidence. Do you understand that?” The young person responded: “Yes”, and then signed the form. Mr Stewart also signed the form.

25. Sergeant Carlos then said to the young person: “I am able to call the youth legal aid hotline so you can speak to them for some legal advice”. The young person responded: “No thanks”. Sergeant Carlos said: “Are you sure? It is a free service. I can call and you can just speak to them”. The young person responded: “No, I don’t want to”.

26. Sergeant Carlos then left Mr Stewart and the young person alone to speak to each other. In his police statement, Mr Stewart said that the custody Sergeant asked him if KS wished to make a call to a lawyer. Mr Stewart spoke to KS who was “really quiet”. Mr Stewart told police that he was confident that KS understood what was happening and what was being explained to him. KS told Mr Stewart that he did not want to speak to a lawyer.

27. At about 2:10am, Detective Sergeant Bowden and Detective Senior Constable Newton spoke to the young person, in the presence of Mr Stewart, and then directed them from the charge room to the interview room.

28. The interview commenced at 2:24am. The young person had been told that he was entitled to speak to Juvenile Legal Services and subsequently declined the offer.

29. KS was asked a number of questions about what had occurred the previous evening. By this time, he was aware that KA had died. KS told police some of the background that had led to the assault upon KA and BK, including that KA, BK and JT had attended the house of LK, where he could hear them yelling.

30. KS appeared more comfortable answering questions about general matters leading up to the killing. However, when asked specific questions about the events that constituted the offences, he appeared less willing to respond. His apparent unwillingness to answer questions is demonstrated not only by what he said but by his demeanour. There were long pauses on some occasions before he answered. On other occasions, KS did not answer at all.

31. When asked what he did when he heard the group yelling, there was a long pause before KS indicated that he did not want to answer questions, stating: “enough’s been said, hasn’t it”.

32. Detective Senior Constable Newton responded:

“Q90   I don’t think so, no. Again, I just, we just want to know the truth. And to get to the truth, we need to ask everyone their side of the story and figure out who’s telling the lies, who’s telling us what happened. From what we know, [KS], you were, you were there. You saw what happened. You’re the best one to fill in those blanks for us, let us know what actually happened and why it happened, more importantly, why. Did you go to [XXX] at [XXX] when you heard those three guys walking up there, yelling at [LK]?

A   Yes.

Q91   And, and what did you see?

A   (NO AUDIBLE REPLY)

Q92   When I found you hiding in the garden at [XXX], um, you told me that you’d hid, hid the knife. Where did you get the knife from?

A   (NO AUDIBLE REPLY)

Q93   Is there anything that you want to tell us that you don’t think, that you think that we might not already know?

A   (NO AUDIBLE REPLY)

Q94 Something that might shed a bit of light on the situation.

A   No.” (As heard in recording)

33. Although the transcript records “no audible reply” to questions 91–93, the recording in fact reveals long pauses in which KS makes no response. At question 94, a question seeking further information from the young person to “shed light on the situation”, the young person clearly indicates by his response that he had no further information he wanted to give to the police.

34. The questions then focused on the young person’s relationship with LK and the fact that he felt protective of LK and his family. KS continued to answer questions about the build-up of hostilities between the deceased and LK, and how he came to be involved. In response to question 134 and following, KS said:

“A   And I heard them yelling all the way up the tunnel, and I was in my back yard, actually, listening to them from the tunnel, because we were just having a fire in my back yard.

…

Q136   Yeah. And what did that make you feel?

A   I knew something bad was about to happen, so, and I know that they were, I asked Mum where they went, and she just said, [y]eah, they went up there. And I was, like, [f]uck, because I only, I know bad shit happens when they fucking go to his house. They just cause havoc and get away with it so often, like, it’s unfair.

…

Q138   Yeah. Had you, um, had you drawn a line in the sand where you thought it’s not gunna happen anymore?

A   We can never be certain of that. It’s just, they’re just wild. It’s fucking not fair … we haven’t even done it, we never done anything to them. They just, they made life so fucking difficult for us for no reason.”

35. KS was then asked about the knife. He told police that he got the knife from his garage. When asked what he was thinking when he took possession of the knife, KS responded: “… I was only thinking bad shit’s going to happen”. KS was also asked what happened when he got to the front of LK’s house. He responded: “That’s enough details”.

36. When asked how he felt after stabbing KA, KS responded:

“I don’t know, to be honest. I don’t have any remorse for him. He’s a fucking little shit that deserved it. I feel bad for [BK], but he shouldn’t have been there.”

37. KS was asked about his intention when he armed himself with a knife and proceeded to LK’s house. He said: “I did intend it to be for self-defence, but then it wasn’t really”. KS was asked about his intention when he stabbed KA. He responded: “I was gunna kill him.” KS was also asked about his intention when he stabbed BK, to which he responded: “I didn’t want to kill him, but he was just there”.

38. The Crown relies upon a number of circumstances to establish that when KS stabbed KA, he did so with an intention to kill him. In addition to the representations in the ERISP, the Crown relies upon the following matters:

1. There had been a prior episode of violence between KS and KA in which they engaged in a fight which KS lost. That fight took place in July 2021.

2. KS was observed by his parents to keep a knife under his bed, which was confiscated.

3. KS purchased another knife online and made representations that he intended to use it if there was a further physical confrontation with KA.

4. The knife was of a kind that was likely to cause serious injury.

5. On the night in question, the likelihood of a physical altercation occurring if KS left his home was self-evident.

6. The directness of the assault and the location of the stab wound, namely to the chest of the deceased, is not consistent with the knife being carried for defensive purposes.

7. The subsequent stabbing of BK demonstrates the degree of violence and an ongoing intention.

39. The fact that KS kept a knife under his bed, and purchased another after the first had been confiscated, is consistent with his desire to protect himself, given the background of previous tensions and, in particular, the physical altercation with KA in July 2021. I accept that the knife was of the kind that was likely to cause serious injury and that the directness of the assault negates self-defence. However, notwithstanding the location of the wound, there was only one stab wound as opposed to multiple wounds inflicted upon the deceased.

40. I am not persuaded that these factors, viewed in combination, establish beyond reasonable doubt an intention to kill on the part of KS, as opposed to an intention to cause grievous bodily harm. The circumstances relied upon by the Crown are equally consistent with an intention to cause really serious bodily harm to KA.

41. That then leaves the representations made by KS in the ERISP which are relied upon by the Crown to establish an intention to kill.

Evidence on the Voir Dire

42. The Crown has tendered a number of documents on the voir dire. The Crown relies upon the statements of: Detective Senior Constable Newton; Leading Senior Constable Jay Chapman; Andrew Stewart; Sergeant Steven Carlos; the Form 31 together with the custody management record; and the “Role of Support Person Form”.

43. The Crown has also tendered the recording and transcript of the ERISP and the conversation with KS captured on body-worn camera at the scene. The footage captured on the body-worn camera was played in court during the voir dire. I have also viewed the footage of the ERISP.

44. In addition to this material, three witnesses gave evidence.

Detective Senior Constable Newtown

45. Detective Senior Constable Newton gave evidence on the voir dire. When police attended the scene, they became aware that KA was deceased and BK was being treated by paramedics. By that time, police located KS hiding in a backyard, they were already aware that KS had been nominated as the perpetrator.

46. KS’s mother and stepfather were spoken to at the scene and were required to provide witness statements. KS’s mother was told that she had to organise someone else to attend the police station as her son’s support person. Detective Senior Constable Newton agreed that he did not ask KS who he wanted as his support person, nor did he obtain his consent for Andrew Stewart to be his support person.

47. Detective Senior Constable Newton was aware that the young person was given an opportunity to obtain legal assistance but declined. He agreed with the proposition that before the interview commenced, police had enough evidence to charge KS with murder and the stabbing of BK, regardless of what the young person said in the interview. He also agreed that the young person would be bail refused. Although there was no urgency in interviewing KS in the early hours of the morning of 18 September 2021, it was police practice to interview suspects as soon as practicable following their arrest.

48. He agreed, however, that generally speaking, police can interview a suspect days after arrest by making arrangements to visit the correctional facility and interview the suspect there.

Sergeant Stephen Carols

49. Sergeant Carlos was the custody manager at the relevant time. He gave evidence that he explained the contents of the Form 31 to KS including his right to silence. He said he was careful to explain his rights to him because of his age. He denied the proposition that the young person was timid. His impression was that the young person was not shy but rather confident and assertive.

50. He said that he repeatedly told the young person that he was entitled to legal assistance and would be afforded the opportunity to obtain legal advice. Sergeant Carlos also gave evidence that he told the young person that he thought it would be a good idea for him to obtain legal advice. I pause to note that these conversations are not contained in his statement, dated 18 September 2021, which is an account made if not contemporaneously, only a few hours after the events in question. In his statement, the only mention of advising KS of his entitlement to legal assistance is as follows:

“I said to the young person, ‘I am able to call the youth legal aid hotline so you can speak to them for some legal advice’.

He said, ‘No thanks’.

I said, ‘Are you sure? It is a free service. I can call and you can just speak to them’.

He said, ‘No, I don’t want to’.”

51. I do not accept that Sergeant Carlos repeatedly advised the young person that he was entitled to legal assistance, nor am I satisfied that he told the young person that it was a “good idea” for him to obtain legal assistance. Neither his statement nor the custody management records contain reference to multiple conversations about legal assistance or a conversation in which the officer actively encouraged KS to take up the offer of legal assistance. I proceed on the basis that Sergeant Carlos had a conversation with KS as set out above at [50].

52. I accept that Sergeant Carlos provided Andrew Stewart with the “Role of Support Person Form”, reading out the form to Mr Stewart and then asking him to sign it. He was satisfied that Mr Stewart understood the role of a support person.

53. Sergeant Carlos was the independent officer called into the interview room following the interview. The following exchange took place:

“Q220   Have you participated in this interview of your own free will?

A   Mmm, well, no. I got dragged here in a paddy wagon. What do you mean?

Q221   OK. So when you say that, um, you, you were arrested and brought to the police station?

A   Yeah.

Q222   OK. So - - -

A   So about as free will as it gets.

Q223   OK. So when you say that, were you then, ah, ah, cautioned that you, ah, were not obliged to take part in this interview if you did not wish to?

A   Say it again.

Q224   Were you then cau, were you cautioned before you came in here, in here that you weren't obliged to say or do anything as anything you did say or do may later be used in evidence and that you didn't have to take part in this interview?

A   Well, I did have to take part in it.

Q225   You did?

A   Well, I couldn’t just say, No.

Q226   Um, do you agree, though, that you were cautioned - - -

A   Yes.

Q227   - - - ah, that you didn’t have to take part in this interview if you didn’t wish to?

A   I could have just said nothing, but, like, would have just sat here for hours.

Q228   OK. Um, all right. So - - -

A   It's 3.00am. I want this motherfucker to go home. I feel so bad for him.”

54. Sergeant Carlos did not accept that these answers demonstrated that the young person did not participate in the interview voluntarily. He understood the young person’s answers as reflecting the fact that he was placed under arrest and forcibly brought to the police station, as opposed to reflecting an absence of free will in participating in the interview.

55. I reject that interpretation of the answers given by the young person. He was asked in the clearest terms whether he participated in the interview “of your own free will”. It was in response to this question that the young person responded: “… well, no. I got dragged here in a paddy wagon.” He repeated that he believed he had to take part in the interview and could not just say “no”.

56. I do not accept that the young person had a true appreciation that he could refuse to enter the interview room and participate in an interview with police. In reaching that conclusion, I have taken into account that the young person was only 16 years old and had never been arrested or come to the notice of police previously. Furthermore, he had not availed himself of the opportunity to obtain legal advice.

57. During his evidence on the voir dire, Sergeant Carlos claimed that the young person said he was happy with having his uncle present. I am not satisfied that the young person was asked or gave consent to his uncle being his support person. There is no reference in the statement of Sergeant Carlos, or in the custody management records, to the young person being asked for his consent to the nominated support person. Furthermore, Detective Newton gave evidence that he did not ask the young person who he wanted to be his support person or whether he was happy for Andrew Stewart to be his support person.

Andrew Stewart

58. Andrew Stewart gave evidence on the voir dire. He received a call from his sister, the mother of the young person, in the early hours of 18 September 2021. He was told that KS was in “big trouble” and that an adult was required to sit with the young person at the police station. He agreed that he was provided with the Support Person Form. He could not remember the form when it was shown to him during his evidence but accepted that his signature appeared on the form. He could not remember reading it but recalled that a police officer had given it to him before he signed it. He believed that he had to sit with KS so that there would be an adult present with him, in the event the police “bullied” or tried to force KS to do something he did not want to do. Other than that, he was not “real sure” of what his role entailed.

59. In cross-examination, Mr Stewart said that he knew that something “bad” had happened and that he had to go to the police station to be with KS. When he arrived at the police station he had “no idea” whether it was preferable that KS obtained legal assistance, nor did he suggest to KS that he should. Mr Stewart gave evidence that he was “running on 20 minutes [of] sleep”. He accepted the proposition that he had “no idea” what to do.

60. When KS said that he did not want a lawyer, Mr Stewart did not try to change his mind. He described KS as quiet and agreed that at one stage KS complained that he was cold.

61. Mr Stewart had no prior contact with police. This was the first time he had attended a police station. When asked about his occupation he responded: “I build sheds”. He agreed that he had not turned his mind to whether KS should be interviewed. He did not know what to do. He said that during the interview he was sitting behind and to the left of KS, making direct eye contact impossible.

62. I accept Mr Stewart was an honest witness. He impressed me as an unsophisticated man who had only a limited understanding of his role. He understood that he was there to sit with KS and ensure that he was not bullied.

63. I am far from satisfied, however, that he understood the importance of legal assistance being provided to KS and I am not convinced that he appreciated that his role as a support person was to actively assist KS, as opposed to sitting passively during the interview.

Submissions on Behalf of KS

64. KS objects to the tender of the ERISP on the following grounds:

1. First, an objection is taken pursuant to s 13 of the CCPA on the basis that the police failed to comply with s 13(1)(a)(iii), because they did not obtain the consent of KS to Andrew Stewart acting as his support person.

2. Secondly, an objection is taken pursuant to s 138 of the Evidence Act. The asserted impropriety relied upon in support of this application includes the failure by police to have an adequate support person present; the failure on the part of the custody manager to assist KS in exercising his rights pursuant to reg 29 of the Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) (LEPRR); the failure to stop the interview when KS indicated that he did not wish to provide any further information; and, the asserted exploitation by police of KS’s vulnerability.

3. Thirdly, the combination of all of the factors itemised in (ii) is such that the exclusionary provision under s 90 of the Evidence Act is enlivened to exercise my discretion to exclude the evidence.

65. Mr Krisenthal submitted that s 13 of the CCPA has not been complied with. Section 13(1)(a)(iii) of the CCPA relates to a child who is of, or above, the age of 14 years. As KS was over the age of 14, namely 16 years old, section 13(1)(a)(iii) applies and the nominated person must be an adult, present with the consent of KS. Consent was not obtained and therefore the police failed to comply with the relevant section, rendering the admissions inadmissible.

66. In addition (or in the alternative), Mr Stewart did not adequately fulfil the role of a support person. Apart from announcing his name at the commencement of the interview, he played no further role until the adoption questions at the end of the interview. It was submitted that despite his nephew making what can be considered to have been graphic and detailed admissions against his interests, Mr Stewart sat mute. He made no attempt to speak to his nephew or to provide any form of counsel. KS was essentially left to his own devices.

67. The problem is said to be compounded by the fact that KS did not have the benefit of any legal advice prior to the interview commencing. In that regard, reg 29 of the LEPRR places a positive obligation upon the custody manager to assist a vulnerable person to exercise their rights. The custody manager was required to do more than simply advise KS of the availability of the Legal Aid Youth Hotline service. He had an obligation to encourage the young person to engage with that service, or at least make contact with the service.

68. KS submitted that in the event this Court is satisfied there has been non-compliance with s 13 of the CCPA, the evidence is inadmissible. If the strict terms of s 13 have not been breached, but there has been a failure to comply with reg 29 of the LEPRR, the representations should be excluded because they were obtained improperly or in contravention of an Australian law: see s 138(1) of the Evidence Act. Alternatively, the ERISP should be excluded because, given the combined circumstances in which the admission was made, it would be unfair to use the evidence: see the Evidence Act s 90.

The Crown’s Submissions

69. The Crown submitted that s 13 of the CCPA has been complied with. The Crown contends that the four subsections of s 13 do not operate exclusively. Instead, s 13 allows for the admission of a confession, where any of the applicable subsections have been complied with, subject to any other grounds of objection not being met.

70. With respect to the role of a support person, the Crown submitted that a support person is not akin to the role of a legal advisor. Mr Stewart attended the interview at the request of the young person’s mother and his role as support person was explained to him.

71. The Crown acknowledges that a support person is not a “cardboard cut-out”. Instead, a support person has an obligation to assist the young person and to observe whether or not the interview was being conducted properly and fairly, identifying any communication problems with the young person.

72. The Crown submitted that KS understood the process and demonstrated the capacity to decline to answer questions on occasion. He was not overawed by the occasion and understood his rights. Furthermore, he was advised that he was entitled to contact the Legal Aid Youth Hotline but declined to do so.

73. In those circumstances, the young person has not established that the contents of the ERISP were obtained improperly or in contravention of an Australian law. The Crown submitted that the interview was fairly conducted. KS was aware of his rights, including his rights to legal advice and to remain silent. Ultimately, the Crown submitted that the circumstances in which the admission was made do not give rise to unfairness.

Relevant Safeguards for Children

74. An understanding of the rationale for s 13 of the CCPA is assisted by looking at the cases relating to s 81C of the Child Welfare Act 1939 (NSW), the predecessor to s 13. In R v Mercury [2019] NSWSC 81; (2019) 276 A Crim R 325, R A Hulme J considered the rationale for s 13 and, in doing so, referred to some of the relevant cases. Although I do not intend to reproduce that analysis here, it is pertinent to refer to some of the previous cases to demonstrate the more expansive view that has developed with respect to the various legislative provisions affording safeguards to children who find themselves under arrest and in police custody.

75. There was appellate consideration of s 81C of the Child Welfare Act, in its original form, in the case of R v Aquilina [1978] 1 NSWLR 358 at 362 where Street CJ observed that “the legislative intention … expressed in the Child Welfare (Amendment) Act, 1977, was to provide protection for children and young persons while being questioned at police stations”.

76. In the Second Read Speech to the Child Welfare (Amendment) Bill, the main object of the legislation was discussed at 4709 as follows:

“The Government considered it desirable also to include in these amendments provisions relating to the interrogation of juveniles in police stations, to demonstrate its concern that youngsters in such situations should have special protection which can be adequately given only by statute … Nevertheless, most young people who are brought to police stations are apt to be frightened and confused or, if they are aware of their rights, they are diffident about asserting them … But one of the best safeguards of the rights of a child in such circumstances is to have his parent or guardian there while the questioning is going on or, if that is not possible or practicable, someone else nominated by the parent or the guardian.”

77. Subsequent cases stated that s 81C was concerned with the admissibility of confessions rather than laying down a procedure or code of conduct for police: see R v Williams (Supreme Court (NSW), Roden J, 9 August 1982, unrep) (Williams) at 7–8; R v Warren [1982] 2 NSWLR 360 (Warren) at 367.

78. However, a more expansive view of the need for safeguards was discussed in R v Dunn (Court of Criminal Appeal (NSW),15 April 1992, unrep) (Dunn) where Caruthers J said:

“The presence of an adult in these circumstances is required to ensure that there [is] no unfairness or unconscionable conduct in the interview so far as the child is concerned.”

79. Wood CJ at CL succinctly summarised the principle he derived from Warren, Williams, R v Cotton (1990) 19 NSWLR 593 and Dunn in R v Phung and Huynh [2001] NSWSC 115 at [34]:

"[34]   It may be accepted that the purpose of the legislative regime, that now applies to the interview 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 the 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."

80. Wood CJ at CL also spoke (at [36]) of the role of the support person during the police interview of a child:

"[36]   The role of the support person is to act as a check upon 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 also to provide the comfort that accompanies knowledge that there is an independent person present during the interview. That role cannot be satisfactorily fulfilled if the support person is himself or herself immature, inexperienced, unfamiliar with the English language, or otherwise unsuitable for the task expected, that is, to intervene if any situation of apparent unfairness or oppression arises, and to give appropriate advice if it appears the child needs assistance in understanding his or her rights."

81. While in that case, Wood CJ at CL was sitting at first instance, his observations were adopted by the Court of Criminal Appeal in R v Tang [2001] NSWCCA 210; (2001) 122 A Crim R 206 at [59] and in R v Duncan and Perre [2004] NSWCCA 431 at [259].

81. As is evident from this brief overview of past cases, a more expansive view has developed about the intent of the statutory provisions governing the treatment of children upon arrest, which include stringent requirements that a child be informed of his/her rights. The requirements are not, however, limited to simply informing a child of their rights. They extend to assisting a child who is under arrest in exercising those rights. The requirements must be implemented in a meaningful, as opposed to a perfunctory way.

82. These requirements are in place for good reason. A child is lacking in maturity and a reduced capacity for careful consideration and reflection about the consequences of his/her decisions. Children are generally more impulsive and reactive than adults. Their position is inferior to that of police officers, not only by virtue of their age and immaturity, but also by virtue of the difference in power between persons in positions of authority and individuals in subordinate positions that result in vulnerability on the part of the subordinate.

83. The experience of being arrested for a criminal offence, in this case, the most serious criminal offence of murder, would be a daunting one for any adult, let alone a 16-year-old child. Children are in a special category by virtue of their vulnerability. The relevant legislative regime is designed to recognise and protect their interests and places a heavy responsibility on police (in particular custody managers) to ensure that those protections are implemented in a meaningful way.

84. In Williams at 7–8, Roden J said the following of the precursor to s 13 of the CCPA, s 81C of the Child Welfare Act:

“It is based, I believe, upon the proposition that children and young persons require special protection, and by that I mean protection from themselves rather than from any impropriety on the part of the police … The Child Welfare Act provision, as I understand it, recognises what could be described as a rebuttable presumption that, within the context of the interview by adult police officers in a police station, a child or young person would be likely to be overawed and to feel at a considerable disadvantage.”

86. The role of police in investigating offences includes, but is not limited to, an examination of the crime scene, canvassing the area, speaking to witnesses, and, upon the arrest of a suspect, endeavouring to question that suspect in connection with the investigation. The investigatory process will often require interviewing suspects in a timely fashion, to obtain a contemporaneous account, uncontaminated by the passage of time. However, there must be a balance between the investigator’s objective of obtaining an account from a suspect, and the protection of a suspect’s right to silence.

87. This is particularly so where the suspect is a child. A child’s particular vulnerabilities are a matter that should remain at the forefront of consideration when determining an application such as this. The balancing exercise that is required can involve a tension between the investigatory process on the one hand, and the protection of the rights of the child suspect on the other.

88. The provisions protecting the rights of a child in police custody are purposive. The sleeve intent is directed to achieving a particular aim, namely, protecting children, not simply from police misconduct or impropriety, but from their own immaturity, impulsivity and reduced capacity for consequential thinking.

89. It is against this background that I have considered the issues raised on this application. The three primary ways in which it is contended the police failed to properly implement the relevant legislation include, an asserted failure to obtain the consent of KS in relation to Mr Stewart being his support person and the related issue of whether Mr Stewart was, in truth, fulfilling that role appropriately. The second issue relates to an asserted failure by the custody manager to assist KS with receiving legal advice before he was interviewed. The third issue relates to the failure to cease the interview following long pauses by the young person and his refusal, at one point, to provide further information.

Inadmissibility Pursuant to s 13(1)(a)(iii) of the CCPA

90. The first basis upon which objection is taken to the ERISP is s 13 of the CCPA. Essentially, Mr Krisenthal submitted that the police failed to comply with its requirements because they failed to obtain the consent of KS to the presence of Mr Stewart as a support person.

91. Section 13 of the CCPA provides the following:

13   Admissibility of certain statements etc

(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 shall not be admitted in evidence in those proceedings unless—

(a)  there was present at the place where, and throughout the period of time during which, it was made or given—

(i)  a person responsible for the child,

(ii)  an adult (other than a member of the police force) who was present with the consent of the person responsible for the child,

(iii)  in the case of a child who is of or above the age of 14 years—an adult (other than a member of the police force) who was present with the consent of the child, or

(iv)  an Australian legal practitioner of the child’s own choosing, or

(b)  the person acting judicially in those proceedings—

(i)  is satisfied that there was proper and sufficient reason for the absence of such an adult from the place where, or throughout the period of time during which, the statement, confession, admission or information was made or given, and

(ii)  considers that, in the particular circumstances of the case, the statement, confession, admission or information should be admitted in evidence in those proceedings.

(2)  In this section—

(a)  a reference to a person acting judicially includes a reference to a person making a determination as to the admissibility of evidence in committal proceedings, and

(b)  a reference to criminal proceedings is a reference to any criminal proceedings in which a person is alleged to have committed an offence while a child or which arise out of any other criminal proceedings in which a person is alleged to have committed an offence while a child, and

(c)  a reference to a person responsible for a child does not include a member of the police force (unless he or she has parental responsibility for the child).

(3)  Nothing in this section limits or affects the admissibility in evidence in any criminal proceedings against a child of any statement or information that the child is required to make or give by virtue of the provisions of any Act or law.

92. The section is in mandatory terms. An admission shall not be admitted in evidence where it was made to a member of the police force by a child who is a party to the proceedings unless police comply with the requirements of the section. Section 13(1)(a) contains four subsections. The issue in these proceedings is whether, in the case of a child who is 14 years of age or above, the subsections are exclusive or whether each applies to the nomination of a support person.

93. There is little authority on this issue. Section 13 of the CCPA was considered in R v H(A Child) (1996) 85 A Crim R 481 (R v H) (Hidden J). In that case, the young person was 17 years old at the relevant time. He was arrested in relation to a charge of murder and taken to Moruya Police Station where a record of interview was conducted. The young person’s father was a person responsible for him within the meaning of s 13(1)(a)(i) of the CCPA, whereas his sister was not.

94. The young person’s father was present in the interview room initially but was ejected because the police formed the view that he was being aggressive and obstructionist. The young person’s sister remained in the interview room. The interview contained admissions that the Crown sought to rely upon. Given the young person’s age, he was a “child” within the meaning of the CCPA and the admissibility of the evidence was subject to compliance within s 13 of the CCPA.

95. In excluding the evidence, Hidden J was satisfied that the young person’s father was a person responsible for him within the meaning of s 13(1)(a)(i), whereas his sister was not. She had attended the police station with her father out of concern for the young person but was not considered by anyone as assuming the role of an adult in the statutory scheme. When the young person’s father was ordered out of the interview room, the interview continued in the presence of the young person’s sister. However, she was not there with the consent of the person responsible for the child, and she was not there with the consent of the child.

96. Hidden J at 487 observed that consent, “whether it be of a person responsible for the child pursuant to subpar (ii), or of the child himself or herself under subpar (iii), must be given in light of the protective purpose of the legislation”. His Honour went on to say that there cannot be consent in the relevant sense when the child (or a person responsible for the child) has had no opportunity to select a person considered appropriate for that purpose.

97. His Honour was dealing with a situation where, on any interpretation, the young person’s sister was not a support person as comprehended by the legislation. His Honour did not deal specifically with the question as to whether a child of or above the age of 14 must consent to the particular individual nominated as the support person.

98. The Crown relied upon the judgment of Adamson J in R v FE [2013] NSWSC 1692 (FE), where subs (ii) was applied to a child who was above the age of 14, namely 15 years old at the time of the interview. Without consulting the accused, the police selected her mother as the support person. Her Honour found that the section was complied with as the child’s mother was present, despite the child saying she would have preferred her sister to be present.

99. Although at first blush, FE provides some support for the Crown’s position, it is not authority one way or the other in relation to the point taken here. The question as to whether the consent of the child (where the child is 14 years or above) is necessary, was not the subject of comprehensive argument and/or consideration. Her Honour instead rejected the admissions made by the young person in the first interview because, having regard to the circumstances in which they were made, it would have been unfair to the accused to use the evidence.

100. Mr Krisenthal called in aid reg 30 of the LEPRR, submitting that the regulation allows for any one of the nominated persons being acceptable by virtue of the inclusion of the word “or” between the subsections. The absence of that word in s 13 of the CCPA, renders a different and more stringent test to be applied under that Act. Regulation 30 of the LEPRR relevantly provides:

30   Support person

A person may be a support person for a detained person or protected suspect who is a vulnerable person for the purposes of this Division only if the first-mentioned person is aged 18 years or over and is—

(a)  in the case of a detained person or protected suspect who is a child—

(i)  a parent or guardian, or a person who has the lawful custody of the child, but not a parent of the child if the parent has neither guardianship nor custody of the child, or

(ii)  a person who is responsible for the care of the child, or

(iii)  an adult (other than a police officer) who has the consent of a person referred to in subparagraph (i) or (ii) to be the support person for the child, or

(iv)  if the child is aged 14 years or over—an adult (other than a police officer) who has the consent of the child to be the support person for the child, or

(v)  a legal practitioner of the child’s own choosing, or

(b)  in the case of a detained person or protected suspect who is not a child—

(i)  a guardian or any other person who is responsible for the care of the detained person or protected suspect, or

(ii)  a relative, friend or any other person (other than a police officer) who has the consent of the detained person or protected suspect to be the support person for the detained person or protected suspect, or

(iii)  if none of the persons mentioned in subparagraph (i) or (ii) are applicable or readily available—a person (other than a police officer) who has expertise in dealing with vulnerable persons of the category, or a category, to which the detained person or protected suspect belongs.

101. Mr Krisenthal’s submission that reg 30 of the LEPRR and s 13 of the CCPA ought to be contrasted insofar as they are “basically in the same terms”, is not persuasive. There is no authority to support the view that delegated legislation should be taken into account to aid in the interpretation of an unrelated Act. In Director of Consumer Affairs Victoria v Glenvill Pty Ltd [2009] VSC 76 at 30, Kaye J said the following:

“[30]   In general, it is not permissible to have regard to the contents of delegated legislation made under An Act of Parliament in order to interpret that statute itself. That proposition has even greater force where, as here, the delegated legislation, relied on, is made, not under the statute which is to be interpreted, but under another statute.” (Footnotes omitted)

102. The starting point to ascertain the meaning of a statutory provision was discussed in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 (SZTAL), where the plurality (Kiefel CJ, Nettle and Gordon JJ) at [14] said:

“[14]   The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.” (Footnotes omitted)

103. The application of this approach will in most cases lead to a Court having to make what is referred to as a “constructional choice”. In SZTAL, Gageler J said at [37]–[39]:

“[37]   The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility ‘if, and in so far as, it assists in fixing the meaning of the statutory text’.

[38]   The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised. More commonly, the choice is from ‘a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural’, in which case the choice ‘turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies’.

[39]   Integral to making such a choice is discernment of statutory purpose.” (Footnotes omitted)

104. I am not persuaded that the absence of the conjunctive at ss 13(1)(a)(i)–(ii) means that those subsections do not apply in the case of a child who is of or above the age of 14 years. Drafting conventions and expressions were the subject of consideration in the text by D Pearce, Statutory Interpretation in Australia (9^th ed, 2019, LexisNexis Butterworths). For present purposes, a relevant drafting convention is the use of the implied conjunction.

105. Where a series of paragraphs within a section are either all cumulative or all alternatives, the conjunction “and” or “or” may be included only at the end of the penultimate paragraph. Thus, the form:

• (a)…

• (b)…

• (c)… or

• (d)…

means that the word “or” is to be read as if it were included at the end of each paragraph. Similarly, if paragraph (c) concluded with the word “and”, the conjunction should be read as if it appeared at the end of each paragraph.

106. Failure to understand this form of drafting led to difficulties in the interpretation of s 46(3) of the Income Tax Assessment Act 1936 (Cth). This difficulty was resolved by the High Court in the case of Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106; [1971] HCA 12.

107. Although the subject matter in that case was very different from the present, the Court was considering the interpretation of s 46(3), which set out the matters about which the Commissioner must be satisfied if he was to allow a further rebate. In that case, the conjunctive “or” appeared in the penultimate paragraph only. However, the several matters specified were held to be separate and alternatives: see at 133 (Windeyer J).

108. I do not accept that the absence of the conjunctive “or” at the end of ss 13(1)(a)(i)–(ii) favours an interpretation that in the case of a child who is of or above the age of 14, consent to the nominated support person must be obtained, even where a person responsible for the child is available, or a person nominated by the person responsible for the child. I do not accept that that was the intention of the legislature given the analysis of the relevant intent at [74]–[89].

109. Rather, the four subsections are in the alternative. A statement, confession or information given to a member of the police force by a child who was a party to the criminal proceedings shall not be admitted into evidence (subject to s 13(1)(b)), unless there was present a person responsible for the child; an adult (other than a member of the police force) who was present with the consent of the person responsible for the child; an adult (other than a member of the police force) who was present with the consent of the child; or an Australian legal practitioner of the child’s own choosing.

110. I am not therefore persuaded that there has been a breach of s 13 of the CCPA.

Section 138 of the Evidence Act

111. Mr Krisenthal has identified a number of factors relied upon in support of the contention that the evidence was obtained improperly, thereby enlivening s 138 of the Evidence Act. These factors include:

1. the failure of the custody manager to assist KS in exercising his rights to legal advice;

2. the absence of an appropriate support person; and

3. the conduct of investigating police in allegedly taking advantage of the young person’s vulnerability by continuing the interview in circumstances where it was clear that KS did not wish to continue to answer questions.

112. Section 138 of the Evidence Act relevantly provides:

138   Exclusion of improperly or illegally obtained evidence

(1)  Evidence that was obtained—

(a)  improperly or in contravention of an Australian law, or

(b)  in consequence of an impropriety or of a contravention of an Australian law,

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2)  Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning—

(a)  did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or

(b)  made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(3)  Without limiting the matters that the court may take into account under subsection (1), it is to take into account—

(a)  the probative value of the evidence, and

(b)  the importance of the evidence in the proceeding, and

(c)  the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and

(d)  the gravity of the impropriety or contravention, and

(e)  whether the impropriety or contravention was deliberate or reckless, and

(f)  whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and

(g)  whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and

(h)  the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

113. The onus of establishing impropriety under s 138(1) rests upon the party seeking the exclusion. If the impropriety is established, the onus falls upon the party seeking the admission of the evidence to establish that the desirability of admitting the evidence outweighs the undesirability of admitting it: see Robinson v Woolworths Ltd (2005) 64 NSWLR 612; [2005] NSWCCA 426 (Robinson) at [33] (Basten JA); Parker v Comptroller-General of Customs [2009] HCA 7; (2009) 83 ALJR 494 at [28] (French CJ); R v MEYN, John Michael (No 1) [2012] NSWSC 1441 at [6]–[8] (Beech-Jones J (as his Honour then was).

114. In discussing the concept of impropriety in Robinson, Basten JA at [23] stated three propositions, the first two are apposite:

“[23]   It follows that the identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as the ‘minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement’. Secondly, the conduct in question must not merely blur or contravene those standards in some minor respects; it must be ‘quite inconsistent with’ or ‘clearly inconsistent’ with those standards.”

115. Later, at [36] his Honour stated:

“[36]   In circumstances where there is no unlawfulness on the part of any law enforcement officer, mere doubts about the desirability or appropriateness of particular conduct would not be sufficient to demonstrate impropriety.”

116. His Honour continued at [37]:

“[37]   Where no relevant pre-existing standard has been breached, it should be a rare case in which impropriety would lead to exclusion.”

117. There is no definition of “impropriety” in the Evidence Act. Specific content to the notion of “impropriety” is provided in ss 138(1) and 139 of the Evidence Act. As Adams J observed in R v Hawat(No 3) [2019] NSWSC 1701 at [27]:

“[27]   Additional examples of impropriety can include breach of internal guidelines by police. It can also include misstatements of fact in affidavits, entrapment, offering an inducement to a witness by telling them that they do not have to give evidence and others.”

118. In R v Camilleri (2007) 68 NSWLR 720; [2007] NSWCCA 36 (per McClellan CJ at CL, with whom Bell J (as her Honour then was) and Howie J agreed) at [31], this Court stated the test in the following terms:

“[31]   The prejudice to the individual accused, which to varying degrees must be present in every case, will rarely be material. It may be of concern if the means by which the evidence was obtained has the consequence that an accused cannot effectively respond to it. There may be other personal considerations in a particular case. However, the fundamental concern of the section is to ensure that, if the law has been breached, or some other impropriety has been involved in obtaining the evidence, this is balanced against the public interest in successfully prosecuting alleged offenders. The competing interests are obedience to the law in the gathering of evidence and enforcement of the law in respect of offenders.”

119. Part 9 of LEPRA, and the regulations made thereunder, apply to persons under arrest. A child, defined as a person under 18 years, is a “vulnerable person”: see the LEPRR reg 24. Regulation 25 imposes an obligation on the custody manager to assist a vulnerable person in exercising a person’s rights under Pt 9, including any right to make a telephone call to a legal practitioner.

120. By virtue of his age, KS was a vulnerable person, as defined by reg 28 of the LEPRR. Accordingly, reg 29 has application. Regulation 29 is in the following terms:

29   Custody manager to assist vulnerable person

(1) The custody manager for a detained person or protected suspect who is a vulnerable person must, as far as practicable, assist the person in exercising the person’s rights under Part 9 of the Act, including any right to make a telephone call to a legal practitioner, support person or other person.

(2)  In particular, the custody manager must ensure that the caution and summary required by section 122(1) of the Act is given to the person.

121. I am satisfied that Sergeant Carlos said to KS: “I am able to call the youth legal aid hotline so you can speak to them for some legal advice”. KS declined the offer. Sergeant Carlos asked: “Are you sure? It’s a free service that I can and you can speak to them”, to which KS responded: “No, I don’t want to”.

122. Regulation 29 places a positive obligation upon a custody manager to assist a vulnerable person to exercise their rights. The rationale for the regulation is protective, seeking to safeguard the rights of vulnerable young people. It is right to describe Sergeant Carlos as standing apart from the investigating officers. He was not part of the investigative process but was present to assist KS in exercising his rights.

123. Sergeant Carlos notified KS of the existence of the Legal Aid Youth Hotline and of his entitlement to speak to them to obtain legal advice. When KS declined the offer, Sergeant Carlos asked him if he was sure, to which KS responded that he did not want to use the service.

124. The question arises as to whether the steps taken by Sergeant Carlos were sufficient to comply with reg 29 or whether something more was required. For example, do the words “as far as practicable”, encompass Sergeant Carlos contacting the Legal Aid Youth Hotline and advising them of KS’s arrest and the fact that he was in police custody about to be interviewed?

125. Regulation 37 of the LEPRR specifically refers to a case where the detained person or protected suspect is an Aboriginal person or a Torres Strait Islander. In such a case, the custody manager must notify a representative of the Aboriginal Legal Service. There is no equivalent obligation on a custody manager, where the suspect is not an Aboriginal person or a Torres Strait Islander.

126. It is curious that there is not an equivalent provision requiring a custody manager to contact the Legal Aid Hotline in circumstances where the suspect is a child and therefore a “vulnerable person”. The various provisions and regulations to which reference has been made, demonstrate the parliamentary intent to put in place safeguards for the rights of a child in circumstances where they are placed under arrest and detained.

127. Although reg 29 does not, in its terms, place an obligation upon a custody manager to contact the Legal Aid Hotline, simply advising a child suspect of their right to contact a legal practitioner, may not always be sufficient to comply with the regulation. This is particularly so where, as here, the police had already formed the view that KS was to be charged with murder, bail refused, and KS had not previously come into contact with the criminal justice system.

128. While I am not persuaded that the failure of Sergeant Carlos to contact the Legal Aid Hotline, regardless of the wishes of KS amounts to an impropriety, it is relevant, together with other factors, to considerations under s 90 of the Evidence Act.

129. Similarly, I am not persuaded that the presence of Mr Stewart amounted to an impropriety or contravention of an Australian law. Mr Stewart was nominated by KS’s mother. Sergeant Carlos provided KS and Mr Stewart a copy of Form 31, which, amongst other things explained the role of a support person. He gave evidence that he read the form and at times stopped to explain paragraphs as he read them. Mr Stewart then signed the form, acknowledging he understood its contents.

130. The question as to whether Mr Stewart fulfilled the role of a support person in a meaningful, as opposed to perfunctory manner, will be addressed more comprehensively in the context of my consideration of the objection pursuant to s 90 of the Evidence Act.

131. Lastly, having given the matter a deal of consideration, I am not persuaded that the police conduct, in continuing with the interview, amounts to an impropriety or contravention of an Australian law. Once again, the police conduct in that regard has more bearing on the question of whether, having regard to the circumstances in which the admission was made, it would be unfair to the young person to use the evidence. I am not satisfied that the police employed a deliberate strategy of “tag teaming”, such as to constitute an impropriety as comprehended by s 138(1) of the Evidence Act.

132. It follows that I am not satisfied that the evidence was obtained improperly or in contravention of an Australian law and reject the second ground upon which objection is taken to the ERISP.

Section 90 of the Evidence Act

133. Mr Krisenthal also relies upon s 90 of the Evidence Act in support of the contention that having regard to the circumstances in which the admission was made it would be unfair to KS to use the evidence. Mr Krisenthal points to the same or similar factors as those relied upon in support of the objection taken pursuant to s 138.

134. Section 90 of the Evidence Act relevantly provides:

90   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)  the evidence is adduced by the prosecution, and

(b)  having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

135. Section 90 reflects the common law unfairness discretion, which allowed courts to exclude admissions in criminal proceedings where, having regard to the circumstances in which the admission was made, it would have been unfair to the defendant to use the evidence. The burden of proof rests on the defence. An admission could be excluded on the basis that, having regard to police conduct and all of the circumstances of the case, admitting the evidence would be unfair. In R v Swaffield; Pavic v The Queen (1998) 192 CLR 159; [1998] HCA 1, Toohey, Gaudron and Gummow JJ held at [69] that a Court’s consideration of s 90 should concentrate on the following matters:

“[69]   …turning first on the question of voluntariness, next on exclusion based on considerations of reliability and finally on an overall discretion which might take account of all the circumstances of the case to determine whether the admission of the evidence or the obtaining of a conviction on the basis of the evidence is bought at a price which is unacceptable, having regard to contemporary community standards.”

136. Their Honours went on to observe at [91]:

“[91]   …In the light of recent decisions of this Court, it is no great step to recognise, as the Canadian Supreme Court has done, an approach which looks to the accused's freedom to choose to speak to the police and the extent to which that freedom has been impugned.”

137. In EM v The Queen (2007) 232 CLR 67; [2007] HCA 46, there was a difference of approach amongst the majority judgments as to the interrelationship between s 90 and other provisions of the Evidence Act, at least so far as the relevance of reliability to the exercise of the discretion is concerned. Notwithstanding the difference in approach on this issue, it was emphasised that the operation of s 90 cannot be described exhaustively. “Unfairness”, whether for the purposes of the common law discretion or for the purposes of s 90, may arise in different ways: see at [109] per Gummow and Hayne JJ; see also R v Tarantino (No 6) [2019] NSWSC 1174, per Beech-Jones J (as his Honour then was) at [203] –[206].

Failure to Contact the Legal Aid Hotline

138. As observed above, reg 29 does not place a positive obligation upon a custody manager to make contact with a legal representative in circumstances where the child suspect refuses to speak to a lawyer. However, the obligations placed on custody managers, particularly in the case of vulnerable persons, are not simply a “tick a box” list of obligations. Those obligations are not always fulfilled simply by informing a child suspect that they have a right to speak to a legal representative.

139. In some cases, given the child’s specific vulnerabilities, he/she may not fully appreciate the seriousness of the situation and the significance of being held in police custody. Where, for example, a child is placed under arrest for criminal offending, he/she may not comprehend the reasoning underpinning the right to silence and the legal significance of admissions. The young person may not understand the importance of obtaining legal advice from an independent legal practitioner who can explain the advantages and disadvantages of answering police questions.

140. Here, KS was arrested for the murder of one young man and the serious stabbing of another. He was taken to the police station in the early hours of the morning. Police had formed the view, even before the interview, that he would be charged with murder and bail refused. KS was 16 years old at the relevant time and had no familiarity with the criminal justice system. He had not previously come under the notice of police, let alone been arrested for a criminal offence.

141. It is unclear as to the urgency in interviewing him. Although the practice is to afford a suspect an opportunity to be interviewed as soon as practicable after arrest, there was no urgency in the present case. KS was going to be charged with murder and bail refused regardless of what he said in that interview. In those circumstances, he was going to be detained at a juvenile detention centre. Police would have had access to him in the days following his arrest, in the event they wanted to interview him.

142. Having decided to proceed with the interview at 2:24am on 18 September 2021, it would have been preferable to contact the Legal Aid Hotline and ask KS whether he wanted to speak to the legal representative.

The Role of a Support Person

143. Is a support person simply an adult who sits with a child during a police interview? Is it sufficient that the support person be present without actively engaging to ensure that the child’s rights are protected? What level of comprehension is required before a support person meets the requirements for the role?

144. In R v H at 486, Hidden J discussed the role that might be played by an adult or legal practitioner who is present during a police interview:

“The primary aim of such a provision is to protect children from the disadvantaged position inherent in their age, quite apart from any impropriety on the part of police. That protective purpose can be met only by an adult who is free, not only to protest against perceived unfairness, but also to advise the child of his or her rights. As the occasion requires, this advice might be a reminder of the right to silence, or an admonition against further participation in the interview in the absence of legal advice. No-one could suggest that a barrister or solicitor, whose presence is envisaged by s 13(1)(a)(iv), could be restrained from tendering advice. Nor should any other adult. Further, within appropriate limits, the adult might assist a timid or inarticulate child to frame his or her answer to the allegation. For example, the child might be reminded of circumstances within the knowledge of both the child and the adult which bear on the matter.”

145. Mr Stewart understood that he was present to protect KS against “bullying” by police. He was unsure of his role beyond that. Mr Stewart was told that something “bad” had happened and that he was required to go to the police station to “be with” KS. He agreed that he “didn’t have any idea about what he should do”. When asked whether he believed it might be a good idea for KS to receive legal advice, he responded: “I had no idea”. Mr Stewart “didn’t think about getting a lawyer”, nor did he “talk [to KS] about whether or not” to get a lawyer. Mr Stewart agreed that he “didn’t know what to do”.

146. Although Sergeant Carlos fulfilled his obligations in reading out the relevant Form and explaining its contents, Mr Stewart had no real idea of what his role was and how he was to assist KS. The role and obligations of a support person cannot be exhaustively defined. However, mere presence is not sufficient. As the Crown acknowledged during the course of submissions, a support person is not simply a “cardboard cut-out”.

147. To properly fulfil that role, a support person must at least understand that they are present to protect the rights of the child suspect, including the right not to answer questions. That role can extend, in the appropriate case, to stopping an interview where it appears, by words or demeanour, that the child suspect does not wish to continue to be interviewed.

148. Furthermore, it seems to me, that in order to properly fulfil the role, a support person should be located at the interview table, next to the child suspect and in a position that demonstrates the centrality of that role.

Continuing with the Interview

149. When asked specific questions about what happened immediately preceding the stabbing of the victims, KS was clearly reluctant to answer:

“Q86   So, so what, what did you do when you heard them yelling at [LK]?

A   (NO AUDIBLE REPLY)

Q87   Did you leave your house?

A   (NO AUDIBLE REPLY)

Q88   Are these questions that you don’t want to answer?   

A   Yes.”

150. KS then explained why he did not want to answer further questions. Detective Newton persisted, telling KS that police “just wanted to know the truth”, and “we need to ask everyone their side of the story and figure out who’s telling the lies, who’s telling us what happened”. These representations were made at the time when police, prior to the interview, had already determined that KS was going to be charged with murder and bail refused. Police were satisfied with, amongst other things, the account given to them by witnesses, that KS was the perpetrator.

151. KS was asked further specific questions to which he did not reply. At question 94, he was asked whether there was something else that he might want to say that could shed “a bit of light on the situation”. Upon listening to the audio recording, it is clear that the response to that question was “no”. The questioning nonetheless continued.

152. The appropriateness of continuing the interview in circumstances where KS had been arrested and taken to the police station in the early hours of the morning; did not avail himself of the opportunity to receive legal advice; was in the company of a support person who did not understand his role; where the police had already decided before the interview to charge him with murder and bail refuse him; and, where during the interview, by words and demeanour, the young person had indicated he is not wish to continue, is highly questionable.

153. Although not persuaded that the conduct amounts to an impropriety, or contravention of an Australian law, having considered these factors in combination, I am satisfied that having regard to the circumstances in which the admissions were made, it would be unfair to KS to use the evidence.

154. Accordingly, the interview is not admissible.

Amendments

30 September 2024 - Correction in paragraph 109

Decision last updated: 30 September 2024