R v L

[2009] QDC 426

DISTRICT COURT OF QUEENSLAND

CITATION:

R v L [2009] QDC 426

PARTIES:

R
(Respondent)

v

L
(Applicant)

DIVISION:

District Court

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Mt Isa

DELIVERED ON:

13 August 2009 (ex tempore)

DELIVERED AT:

Mt Isa

HEARING DATE:

13 August 2009

JUDGE:

Dearden DCJ

ORDER:

That the interview between SPC HN and defendant L conducted at the Mornington Island Police Station on 7 March 2007 be ruled inadmissible.

CATCHWORDS:

CRIMINAL LAW (Qld) – Police powers and responsibilities – Police records of interview – Admissibility - Juvenile offenders – Voluntariness – Right to silence - Meaning of “support person” - Unfairness discretion

CASES:

Siddon v State of Western Australia [2008] WASC 100

R v W [1988] 2 Qd R 308

B v R [2005] QDC 59

R v R & T [2009] QDC 425

LEGISLATION:

Juvenile Justice Act 1992 (Qld) ss 4; 29(1), (2); Schedule 4

Police Service Administration Act 1990 (Qld) s 4.9

Police Powers & Responsibilities Act 2000 (Qld) ss 414, 415, 416, 417, 418, 419, 420, 421, 428

Police Powers & Responsibilities Regulation Schedule 10 (Responsibilities Code) ss 36, 37, 44A

COUNSEL:

Mr M Cowen for the respondent
Mr J McInnes for the applicant

SOLICITORS:

Director for Public Prosecutions (Queensland) for the respondent
Legal Aid Queensland for the applicant

[1] HIS HONOUR:  The defendant L is one of seven co-defendants conjointly charged with one count of assault with intent to commit rape and three counts of rape.  An eighth (potential) co-defendant has been charged and is awaiting committal proceedings in the Magistrates Court.

[2] The defendant (represented in these proceedings by Mr J McInnes of counsel) seeks a ruling that his police interview is inadmissible, or alternatively seeks its discretionary exclusion.

[3] The relevant interview took place … at the Mornington Island Police Station between Senior Constable HC and Constable LB on the one hand and the defendant on the other. RF was present for the interview which ran from 5.15 p.m. to 5.33 p.m.  The defendant was 13 years old at the time of interview … ie a juvenile, and was Aboriginal.

[4] I have canvassed the factual background of these proceedings at some length in my ruling in respect of co-defendants R and T delivered 13 August 2009 (R v R & T [2009] QDC 425). It is relevant only to repeat that the alleged offences occurred … on 28 February 2007 and that P was the complainant. The defendant in these proceedings was one of a group of Aboriginal male youths alleged to have been involved in physical and sexual offences against the complainant.

[5] The defendant L admitted in his record of interview to being present during the incident involving P and to touching her on her breast and (inferentially) in her vaginal area.

THE LAW

Voluntariness

[6] I refer to and adopt my exposition of the law in respect of voluntariness of admissions, as set out in my ruling in relation to the defendants R and T delivered 13 August 2009 (R v R & T [2009] QDC 425).

Unfairness Discretion

[7] Similarly, I refer to and adopt my exposition of the law in respect to the unfairness discretion as set out in the ruling delivered 13 August 2009 (R v R & T [2009] QDC 425).

Provisions Re Juvenile Offenders

[8] In addition to the general safeguards ensuring rights of and fairness to persons questioned for indictable offences contained in ss 414-419 of the Police Powers and Responsibilities Act 2000 (PPRA), there are special requirements applicable to the questioning of Aboriginal persons (PPRA s 420) and children (PPRA s 421).  PPRA s 428 deals with the issue of when a person is unable to properly perform the role of a support person, and the definition of "support person" in schedule 6 of the PPRA deals specifically with support persons for a child, and more particularly an Aboriginal or Torres Strait Islander child.

[9] In addition, the Juvenile Justice Act (1992) relevantly provides:

"S.29 (1) In a proceeding for an indictable offence, a Court must not admit into evidence against the defendant a statement made or given to a police officer by the defendant when a child, unless the Court is satisfied a support person was present with the child at the time and place the statement was made or given.

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

(a) The prosecution satisfies the Court there was a proper and sufficient reason for the absence of a support person at the time the statement was made or given; and

(b) the Court considers that, in the particular circumstances, the statement should be admitted into evidence." [I have excluded the examples cited under S.29(2)(a)].

[10] The Queensland Police Service Operational Procedure Manual contains relevant policy and orders in respect of child defendants at paragraphs 5.7.12, 5.7.13, and more generally in respect of "special needs" suspects (and witnesses) at paragraphs 6.3 - 6.3.6 (see Exhibit 19).

[11] The Queensland Police Service Operational Procedure Manual is a lawful direction to police in the performance of their duties (Police Service Administration Act (1990) s 4.9 and see R v W [1988] 2 Qd R 308).

Conclusions Re Admissibility of Defendant's Record of Interview

[12] There are two concurrent issues to be considered in respect of this interview. 

[13] The first issue is whether the defendant L "has spoken in the free exercise of a choice to speak or remain silent" (Siddon v State of Western Australia [2008] WACS 100, para 3), on which the prosecution bears the onus.

[14] RF was present for L’s interview, and whether that was as a "support person" is the subject of separate argument.  However, as with the defendants R and T (R v R & T [2009] QDC 425), when the caution was administered, the defendant L was asked "Do you know what that means?" to which the defendant responded by shrugging his shoulders. RF then states "You must answer, no shaking heads" and the defendant says "No"(Exhibit 10A p.4).

[15] The following further exchange then occurs:

"Senior Constable HN: No?  Okay.  Basically it means that police can't make you talk if you don't want to talk, okay?  If you don't want to answer a question, or make -, you don't have to answer a question.  Do you understand that?

L:  Yeah.

Senior Constable HN:  Yeah?  Okay.  So basically the police want to talk to you about what's -, what happened the other night in the -, we want you to tell us what you can remember.  But if you don't want to talk to police you don't have to.  Okay?

L:  Yeah."

[16] Having accepted the monosyllabic "yeah" responses from a 13 year old Aboriginal boy, Senior Constable HN then moved on to deal with the right to friend, lawyer or relative caution, without asking the defendant child to "explain the meaning of the caution in his … words".  (Police Powers and Responsibilities Regulation Schedule 10 (Responsibilities Code) s 37(2))

[17] It is in my view of little significance that the defendant, at the end of the interview, declines to further continue answering questions.  The key issue in my view is the threshold question, whether a free choice was exercised to speak or to remain silent at the commencement of the interview.

[18] It follows, therefore, that I have not been persuaded on the balance of probabilities that the interview between Senior Constable HN and L has not been shown to have been made voluntarily, and therefore should be excluded from evidence at the trial of the defendant on this indictment.

[19] Although I have reached that conclusion on the voluntariness issue, I consider it appropriate to express my views on the remaining exclusionary issues.

RF not a support person

[20] RF was, at the time of this interview, a complainant against L in respect of charges of burglary and unlawful use of a motor vehicle (Exhibit 17).  RF had refused to take part in justice mediation (Committal Day 5 pp 17-18).

[21] Senior Constable HN and Constable LB were unaware of this issue as at the time of the record of interview, and would not have regarded RF as a suitable person had they known this information (Committal Day 4 pp 91-92 (HN), Committal Day 4 p.33 (LB)).

[22] RF has no recollection of this record of interview and recalls only sitting in on the interview with E (Committal Day 5 p.17), an assertion it is accepted is factually incorrect.

[23] In addition to a clear conflict of interest as a complainant in relation to L, RF was clearly in my view an authority figure on Mornington Island, as I found in my ruling in respect of R and T delivered 13 August 2009 (R v R & T [2009] QDC 425).

[24] RF was not a parent/guardian, a lawyer, nor an adult relative or friend (Schedule 6, definition of "support person - child").  RF was a field officer for Aboriginal Legal Aid, but there is no evidence that she was "acting for" for the defendant child at the relevant time.  She was not chosen by the child (PPRA s421 (2)), but rather she was chosen for the child by Senior Constable HN (see Committal Day 4 p.90).

[25] In all of those circumstances (some of which were beyond the personal, although not corporate, knowledge of Senior Constable HN and Constable LB), I am not satisfied that RF was a "support person" as defined and, therefore, her presence failed to satisfy the requirements of Juvenile Justice Act s 29(1).

[26] I do not consider that there was "a proper and sufficient reason for the absence of a support person at the time" (Juvenile Justice Act s 29(2)(a)), nor do I consider that "in the particular circumstances, the statement should be admitted into evidence" (Juvenile Justice Act s 29(2)(b)(cf B v R [2005] QDC 59, per Robertson DCJ, at paragraphs 31 - 34). Were it necessary to do so, I would rule pursuant to Juvenile Justice Act s 29 that the interview not be admitted into evidence.

Unfairness Discretion
[27] It may be superfluous in the context of my previous rulings, but I would have exercised my discretion to exclude the interview on the unfairness discretion on the following grounds:-

(a)  The lack of understanding of the right to silence by the defendant and the failure of Senior Constable HN and Constable LB to elucidate whether the defendant did understand.

(b)  The "special needs" status of the child defendant as an Aboriginal child, 13 years of age, living in an indigenous community.

(c)  The apprehended bias and "authority figure" status of RF which prevented her from satisfying the requirements to be a "support person" under Juvenile Justice Act s 29.

(d)  The clear breach by Senior Constable HN and Constable LB of their legislative and operational obligations, which failed to ensure that the defendant's interests were protected.