R v LLH
[2002] NTSC 47
•14 August 2002
R v LLH [2002] NTSC 47
PARTIES:THE QUEEN
v
LLH
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:20106249
DELIVERED: 14 August 2002
HEARING DATES: 17 & 18 July 2002
JUDGMENT OF: MILDREN J
CATCHWORDS:
Criminal Law and Procedure – Evidence – Admissibility – Confession – Voluntariness – Interview – Juvenile - Role of Prisoner’s friend – Explanation of role by police – Breach of Commissioner’s guidelines – Anunga guidelines – Operation of the ‘unfairness’ discretion and the ‘public policy’ discretion.
Evidence – Confession – Voluntariness – Inducements by a person not in authority with prior knowledge of person in authority – Whether inadmissible.
Statutes:
1. Evidence Act s 26L
2. Police Administration Act ss 137, 140
Cases:
1. Deokinnan v The Queen [169] 1 AC 20, followed
2. Dumoo v Garner (1997) 7 NTLR 129 at 143-4, applied
3. M v J (1989) 44 A Crim R 373 at 381, followed
4. R v Cleary (1964) 48 Cr App R 116, referred to
5. R v Ireland (1970) 126 CLR 321 at 334-335, referred to
6. R v Moore (1972) 56 Cr App R 373, referred to
7. R v Weetra (1993) 93 NTR 8 at 11, applied
8. Rostron v The Queen (1991) 1 NTLR 191, referred to
9. The Queen v Swaffield; Pavic v The Queen (1997) 192 CLR 159 at 178, referred to
REPRESENTATION:
Counsel:
Prosecution: J Adams
Accused:K Doyle
Solicitors:
Prosecution: Office of Director of Public Prosecutions
Accused:North Australian Aboriginal Legal Aid Service
Judgment category classification: A
Judgment ID Number:
Number of pages: 27
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINR v LLH [2002] NTSC 47
No. 20106249
BETWEEN:
THE QUEEN
AND:
LLH
CORAM: MILDREN J
REASONS FOR RULING
(Delivered 14 August 2002)
This is an application under s 26L of the Evidence Act, the question for determination being whether a record of interview between the police and the accused conducted at the Peter McAulay Centre is admissible in evidence at the trial of the accused and, if it is admissible, whether or not it should be excluded in the exercise of my discretion.
The accused has been indicted on two counts of aggravated unlawful entry, two counts of stealing and one count of aggravated assault. The maximum penalties available in relation to the aggravated unlawful entry charges carry imprisonment for life. The stealing counts carry maxima of seven years imprisonment. The aggravated assault carries five years imprisonment.
It is alleged that the accused, who at the time of the alleged offences was a juvenile, entered a house at Haritos Street, Wanguri during the early hours of 27 April 2001. It is alleged that house was occupied by a woman who was watching television at the time. It is further alleged, that the accused came up to the woman from behind and held a knife to her cheek and that the accused was attacked by the occupant's dogs and ran away. Later that same evening, it is alleged that the accused entered another occupied house property in the same street whilst armed with the knife and stole property to the value of $1,300. Police having been called to the area, the accused was found hiding in the yard of the second premises. He and an alleged co-offender who was also located there, were arrested and taken to the Peter McAulay Centre and placed in the cells. They were both held pending further inquiries pursuant to s 137 of the Police Administration Act.
Before placing the accused in the cells, Constable Colin Ragg conducted what is commonly referred to as "a section 140" interview with the accused. The accused was told that he was under arrest for two counts of unlawful entry whilst armed. A caution was administered in familiar terms. The accused was asked if he wanted the police to contact a friend or relative to let them know that he was in police custody. The accused nominated his mother, PG, and gave her address. He was told that later on he would be interviewed and asked if he wanted someone to sit with him during the interview. He again nominated PG. This interview, which was electronically recorded, took place between 2:55 a.m. and 2:58 a.m. on 27 April 2001. No attempt was then made to explain to the accused the role of a prisoner's friend as has been suggested by this Court should be done: see R v Weetra (1993) 93 NTR 8 at 11; Dumoo v Garner (1997) 7 NTLR 129 at 143-4.
At 7:45 a.m. the accused was spoken to by Detective Hodge who again asked him whom he wanted as a prisoner's friend. The accused again nominated his mother. Again, there is no evidence that the suggested explanation of the role of a prisoner's friend was given to the accused.
At around 8:45 a.m. Detectives Hodge and Nicholson left the Peter McAulay Centre in order to locate the accused's mother and also the mother of the alleged co-offender. There was some difficulty locating PG but I find that she was spoken to by Detective Hodge who told her that the accused was in police custody, that he was to be interviewed and that the accused wanted her to be present when the interview was commenced. The evidence as to what was said at this stage is vague and contradictory. I am satisfied that no one else was present other than Detective Nicholson. Subsequently, PG went to see her "sister" DCW who lived nearby. She told DCW that the accused was in custody. PG was not feeling well that day as she was recovering from some minor surgery performed the previous day. Probably for this reason, DCW drove PG to the Peter McAulay Centre.
When PG and DCW arrived at the Peter McAulay Centre, they went to the front counter and inquired after the accused. Shortly thereafter, Detective Hodge spoke to the women. There is a conflict in the evidence as to what was said. According to Detective Hodge he advised PG that he wished to speak to the accused and he needed her to be present. Detective Nicholson was not present during this conversation. According to DCW, Detective Hodge told them that the accused was in the cells, that they were going to bring him upstairs and then they could see him. According to PG, she asked Detective Hodge where the accused was and she was told to wait a while and then she could see him. It is not necessary to make any findings on this question. The evidence is that at this stage, the women were left in the reception area for a short time and then escorted by Detective Hodge to an interview room and were left with the accused for a few minutes before Detective Hodge returned.
When Detective Hodge returned, he was probably accompanied by Detective Nicholson. According to Detective Hodge, although he has no memory of this, it is his usual practice at this stage to advise persons who are fulfilling the functions of a prisoner's friend what their role is to be during the record of interview. If this in fact occurred, it must have occurred during the accused's presence. Detective Nicholson said that the tapes were not turned on immediately; they sat down, got the tapes ready, got the paperwork ready and then Detective Hodge had a short conversation with PG and DCW as to what was going to occur. He could not recall the exact conversation, but so far as the role of a prisoner's friend was concerned, he remembered Detective Hodge saying that they could stop the interview at any time if they wanted to speak to each other or to go to the toilet, and if they had any problems they were free to speak up. Detective Hodge said that his normal practice was to tell prisoner's friends that they were there to support the interviewee; that if they did not feel that the interviewee understood a question they could interrupt the interview; that they were free to interject if they felt the interviewee was being badgered or the police were being too hard; that these things have to be done fairly and that they were there to ensure the interviewee did not feel scared or afraid of anything. Neither DCW nor PG can recall any conversation like that occurring.
The accused was 14 years of age at the time of the interview. He is Aboriginal. Having listened to the record of interview, it is apparent that he has a good understanding of English. It is not suggested that he needed the services of an interpreter. Nevertheless, he speaks Aboriginal English, which differs from Standard English. Detective Hodge said that he thought the Anunga guidelines applied to the accused for these reasons. Detective Nicholson also believed that the Anunga guidelines applied. Both detectives accepted that, in addition, the Commissioner of Police's General Order Q 2 applied as well.
General Order Q 2, para 4.1.4 provided at the relevant time:
4.1.4Police should explain to the "prisoner's friend" his/her role, and ensure that he or she understands that role. The explanation and the "friend's" explanation back should be recorded as part of the overall record of interview. A prisoner's friend who does not understand his/her role is of no use. If Police cannot demonstrate such understanding, then this amounts to non-compliance, with the risk that the evidence will be excluded. This point is discussed further at paragraph 8.
(a)The role of the "prisoners friend" must also be explained to the person and police are to ensure the understands what the role entails [sic].
General Order Q 2, para 5 provided:
5.The Role of a "Prisoners Friend"
5.1The "prisoner's friend" must understand his/her role – the following procedures will ensure that this point is not overlooked.
5.2Prior to commencing an interview in the presence of a "prisoner's friend", Police are to explain to the chosen "friend" in simple terms:
5.2.1the reason for the interview;
5.2.2the form the interview will take;
5.2.3brief particulars of the alleged offence;
5.2.4that the "friend" has been chosen by the suspect to sit with the suspect in a supporting role;
5.2.5the right of the "friend" to assist or support the suspect with help or clarification if at anytime it appears necessary;
5.2.6the right of the "friend" to talk to, or otherwise communicate with the suspect at any time that he/she is acting as a "friend"; and
5.2.7the right of the suspect to communicate with the "friend" at any time for advice or for any reason.
5.3The above points, and any other conversation with the "prisoner's friend", are to be recorded, generally by the same means as the interview with the suspect.
5.4If practicable, a statement should be taken from the "prisoner's friend" at the conclusion of the interview with the suspect, to clarify that the "friend" understood his/her role and was satisfied that Police conducted the interview in a fair and proper manner. If the "Prisoner's friend" is unable to read, the statement should be read to him/her and suitable wording incorporated in the statement to describe the relevant circumstances.
5.5Should a "prisoner's friend" speak or communicate with a suspect or vice versa during a record of interview, the words or fact of communication should be accurately recorded in the record of interview. In addition any questions put by the interrogating member direct to the "prisoner's friend" and the replies received must also be accurately recorded in the record of interview.
5.6A "prisoner's friend" should be invited to identify themselves in all records of interview at which he/she is present.
5.7It should be clearly understood that the qualities that should be met by a person acting as a "prisoner's friend are:
5.7.1The person should be "someone in whom the suspect has apparent confidence ... by whom the suspect will feel supported".
5.7.2The person should be a person "who knows and is known to the suspect".
In this case, the alleged explanation of the role of a prisoner's friend was not recorded, either at the time it was said to have been given or during the record of interview itself, by way of confirmation of what had been said on that topic prior to the record of interview.
Detective Hodge said that it was not his practice to record the explanation given to a prisoner's friend. He said that he did not know that the General Orders provided that such explanations should be recorded. I formed the impression that Detective Hodge's position was that because the General Order did not require him to record the explanation he chose to ignore it.
Detective Nicholson said his understanding was that he should record the fact that the explanation was given, not the explanation itself. He said he had been criticised previously during a Supreme Court case by counsel for not taping an interview with the prisoner's friend, but that the prosecutor had told him that he did not need to record the interview, but that he had to record the fact that the explanation was given. I reject this explanation. The wording of the General Order is clear. I cannot believe that Detective Nicholson would not have checked on the wording of the General Order if he had been criticised once before. If he did not check it himself, it displays a lack of professionalism. Indeed, both Detectives lacked professionalism in their approach to the terms of this provision of the General Order.
The purpose of recording the explanation is to ensure that police do in fact provide a proper explanation and are in a position to prove that as a fact so that it no longer becomes an issue. If no recording is made there may be, as in this case, dispute about whether any explanation was given at all, or, if one was given, whether it was adequate in the circumstances.
I have reached the conclusion that Detective Nicholson's evidence that there was any kind of explanation of the role given to the two women should be rejected for the following reasons. First, I am satisfied that Detective Nicholson has a poor recollection of the events of that day. Secondly, whilst I would not be surprised if PG had forgotten by now if an explanation was given, having regard to the state of her health and the anxiety she must have felt, no such explanation is open in the case of DCW who I thought was an honest witness with a reasonably good recall of the events of that day. Thirdly, if an explanation had been given, I would have expected Detective Hodge to have mentioned this at the beginning of the record of interview. Detective Hodge mentions nothing at the beginning of the record of interview about any conversation occurring before the record of interview. It is usual, in my experience, for police to verify conversations of that kind where they have taken place, a practice, I note, that Detective Hodge adopted later in the interview when there had been a substantial break. The absence of any record or note that it had taken place is also telling given Detective Nicholson's evidence. I conclude therefore, that on the balance of probabilities, no explanation was given as to the role of a prisoner's friend. This conclusion is fortified by the role which the two women played during the record and during a lengthy break in the record which I will come to subsequently. These considerations outweigh any weight to be given to Detective Hodge's evidence as to his practice, particularly as Detective Hodge had difficulty in remembering what in practice he normally said.
I am satisfied that what actually occurred was that the police had difficulty setting up in the interview room because the video equipment was not working. Detective Hodge said that when he started the interview, he found that the video machine was not working so there was a change of rooms, but the machine in that room was not working either. According to Detective Nicholson the discovery that the video was not working occurred at the first change of the audio tapes and the other two rooms were unserviceable, because one had a sign on it saying "out of service" and the other had the video equipment obviously removed for repair. The evidence of DCW is that they changed rooms from the room that they were initially left alone in with the accused to a different room where the interview took place. The tape of the record of interview begins with Detective Hodge saying, "I don't know if the video is going ...". This supports the evidence of Detective Hodge and DCW on this point. The fact that the equipment was not working may well have distracted Detective Hodge. This provides a possible explanation for why Detective Hodge did not follow his usual practice. However, I reject this possible explanation because no attempt was made to deal with that topic in the recorded record of interview. In all the circumstances, I infer that the failure to advise either the accused, PG or DCW of the proper role of a prisoner's friend was deliberate.
The record of interview began at 12.12 p.m. I am satisfied that the accused was properly cautioned and understood the caution. Some criticism was directed at the fact that a number of questions were asked of the accused before the caution was administered. These questions related to establishing purely formal matters concerning who was present at the interview; the accused's age, schooling, literacy levels and ability to understand and speak English; the accused's state of health; and what it was that the police wished to speak to the accused about. This questioning was quite proper and necessary if the accused was to be asked about the allegations which he faced: see Rostron v The Queen (1991) 1 NTLR 191.
It was submitted that the police breached guideline 8 of the Anunga rules which states, "If an Aboriginal states he does not wish to answer further questions or any questions the interrogation should not continue."
The relevant passage of the record of interview is as follows:
HODGE:They'll send you away. That's right. That's exactly what a judge does, yeah. So you have to decide whether or not you're going to answer my questions. Do you have to answer my questions?
THE ACCUSED: Nuh.
HODGE:All right. Are you willing to answer my questions?
THE ACCUSED: No.
HODGE:Nuh. All right. When you say no, what do you mean by that?
THE ACCUSED: (No verbal response).
HODGE:You don't know. You're shrugging your shoulders. All right. If I ask you a question, do you have to answer it?
THE ACCUSED: Nuh.
HODGE:All right. If you do answer a question, will it be of your own free will?
THE ACCUSED: Yeah.
HODGE:Yeah. If there's a question you don't want to answer, what do you say to me? If I ask you a question and you don't want to answer that one, what do you say to me?
THE ACCUSED: Um.
HODGE:What would you say to me?
THE ACCUSED: I don't want to answer it.
HODGE:You don't want to answer it. That's right. Okay. And you know that by answering my questions could get you into a lot of trouble. Is that right?
THE ACCUSED: Yeah.
Detective Hodge, in cross-examination, said that he did not cease the interview immediately because he felt that the accused did not appear to understand the word "willing". Whilst it is true that Detective Hodge did not try to reformulate in other words the question "Are you willing to answer my questions", it was not necessary for him to do so. There is no requirement to ask this question in the first place. The requirement is to explain the caution and to do one's best to ensure that the caution is understood before proceeding further. I accept Detective Hodge's explanation that he felt that the accused did not understand his question. At a later time when a similar question was asked of the accused, he gave no answer. On that occasion, Detective Hodge reformulated the question by using the word "want" instead of "willing", to which the accused responded "yeah". Hodge then observed, "I noted before you had problems with that". I find as a fact that the accused did not understand the word "willing". It was right for Detective Hodge in the circumstances to endeavour to ensure that the accused understood his right of silence. I reject this submission.
Next it was put that Detective Hodge ought to have advised the accused of his right to speak to a lawyer. There are no requirements for this to be explained in any of the relevant guidelines. There is no authority for this proposition in the case of either adults or juveniles, whether Aboriginal or not. I reject this submission.
Shortly after the record of interview had commenced, PG felt ill and asked to go outside. Detective Hodge asked the accused if he wanted to carry on with the interview in the presence of his auntie. Detective Hodge explained that he could suspend the interview. The accused agreed to the interview continuing in PG's absence, as did PG. By itself, I would not regard this as significant. However, it must be borne in mind that the accused was only fourteen years old. Neither he nor PG nor DCW had had explained to them the functions of a prisoner's friend. Whilst I am satisfied that the prosecution has proved that the first part of the record of interview – up to the time it was suspended at about 1.25 pm – was voluntary, the question of whether or not I should reject this part of the interview in the exercise of my discretion is another matter. Mr Doyle submitted that I should reject it for a number of reasons, some of which I have already dealt with adversely to his submission, others of which are still live considerations. As to those latter matters, they are:
1. the failure to advise of the role of the prisoner's friends;
2. that the failure was not due to inadvertence, but a deliberate choice to ignore the police guidelines and, for that matter, guideline (2) of the Anunga rules;
3. the fact that the accused was only fourteen years of age; and
4. that the interview proceeded in the absence of the accused's mother.
In M v J (1989) 44 A Crim R 373 at 381, Neasey J said in relation to a child who was not interviewed by police in the presence of either of his parents, contrary to police standing orders, that:
courts should be reluctant in ordinary circumstances to receive in evidence an admissional statement allegedly made by a child if the prescription of the standing order has not been observed.
Today perhaps, the reasons for this are not as strong as they were in 1989 in Tasmania where the interview was not required to be electronically recorded, but one reason given by Neasey J is still relevant, namely that the presence of a police officer asking investigatory questions of a child in the absence of a parent or other responsible adult is always likely to be intimidatory and unsettling for the child. In this case, DCW was present during the whole interview, but her understanding was, according to her evidence, that she was there as part of the family, to just sit there and give support to the accused by, I infer, her mere physical presence. The tape reveals that DCW on four occasions, particularly towards the end, assisted the accused during the first part of the record of interview so I think it is fair to say that she must have understood at least by then, more of her role than she gave evidence of. On the other hand, it is plain that before the interview began, she had not had a sufficient opportunity to speak to the accused so as to find out what he might wish to say to the police, nor was it explained to her that she could act in an advisory role to the accused and, if necessary, speak to the accused privately either before or after the interview had commenced. When one considers that the accused was but fourteen years of age at the time, was Aboriginal and a speaker of Aboriginal English rather than Standard English, the question I have to consider is not just whether the confession was voluntary, but also, is it likely to have been unreliable as a consequence. As well, I must consider the deliberate disregard by the police of their own standing orders and the Anunga guidelines.
Having considered the first part of the record of interview and all the circumstances, I am satisfied that the confession is reliable. The accused had no difficulty in denying suggestions put to him by the police officers that he had entered the first house and held a knife at the victim's throat, for example. I am not satisfied that it would be unfair to the accused to admit this part of the record of interview in the sense that the accused's right to a fair trial is likely to be affected. There is simply no evidence before me on that topic.
That leaves what is often called the public policy discretion. As was said in R v Ireland (1970) 126 CLR 321 at 334-335:
On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price.
In The Queen v Swaffield; Pavic v The Queen (1997) 192 CLR 159, Brennan CJ said, at 178, that:
The chief object of the public policy discretion is the constraining of law enforcement authorities so as to prevent their engaging in illegal or improper conduct, although the securing of fairness to an accused is a relevant factor in the exercise of the discretion.
Relevant to the exercise of that discretion is the fact that the police did not act illegally, although in my view they acted improperly and deliberately so. It is also relevant that the charges are of some seriousness, albeit not of the most serious character, and the fact that the accused was a juvenile and had already been held in custody for ten hours before the interview commenced. Having considered these matters, I am of the opinion that the whole record of interview – including that part of the record of interview which commenced at 2.10 pm and concluded at 2.30 pm - should be excluded in the exercise of my discretion.
It is therefore not strictly necessary for me to consider the objections raised to what I will call the second part of the record of interview which commenced at 2.10 pm, but because of the issues raised, I think it is important that I deal with the submissions of the parties.
At 1.25 pm the first part of the record of interview concluded. It is apparent that the police had expressed no intention at this time to further interview the accused, whom they continued to hold in custody whilst they attempted to organise an identification parade. The accused was at this time taken back to the watch-house and placed in the cells. PG and DCW remained at the police station where conversations took place between Detective Hodge and PG on the one hand and Detective Nicholson and DCW on the other. None of these conversations were recorded and neither police officer made any notes of what was said.
The position at this stage so far as the police knew, was that the accused denied entering the first property in Haritos Street, although he claimed to be present in the street when his co-accused entered that property. He claimed to have no knowledge of what had happened inside. The co-accused's position was that it was the accused who had entered the property.
According to PG, Detective Hodge said to her that it was the accused who was responsible for entering the first property and that it would be best if he owned up to it. She claims that Detective Hodge then asked her if she wanted to visit the accused in the cells. She said she did and so she and DCW went down to the cells and spoke to the accused.
Detective Hodge, in evidence in chief, said that after the first part of the record of interview had finished, he took DCW to the foyer where PG was and one or other asked if they could visit the accused in the cells. He said he was not told of the reason for this request. He said he had no objection to this course and he arranged with the watchhouse for this to occur. However, in cross-examination he agreed that he seemed to recall saying to PG something to the effect, "Oh, they're both blaming each other" and he left it at that. Detective Hodge maintained that he had no idea why PG wanted to speak to the accused, other than "just to see her son".
Broadly speaking, the evidence of PG and DCW is that PG and DCW visited the accused in the cells, that PG told the accused that the police were saying that he was the person involved in the first break in, that the accused told DCW he wanted to confess to the first break in, that DCW told the police that the accused wanted to make a confession, and accordingly the police arranged the second part of the record of interview.
Detective Hodge's evidence was that after PG and DCW visited the accused in the cells, he was advised by someone – he is not sure whom – that the accused wished to speak to him again. He assumed it was to do with the alleged offences and decided to conduct the second part of the record of interview. According to Detective Nicholson, he was advised by Detective Hodge that the accused wished to speak to them again.
Shortly after the commencement of the second part of the record of interview, the following was said:
HODGE:Um – since we last spoke to each other in this room, when the tapes were going – um – is it true you went back to the watchhouse?
THE ACCUSED: Yeah.
HODGE:Yeah. All right. And you had a – a talk with your mother in the watchhouse area?
THE ACCUSED: Yeah.
HODGE:All right. And that was at – was that at your request PG?
PG:Yeah
HODGE:Okay. Now was I present during those talks?
PG:No.
HODGE:All right. Um – is it true to say that – ah – I, and I'm asking this of you PG, is it true to say that – um – ah – I had some understanding or some inkling of what you were gonna talk to your son about?
PG:Yeah.
HODGE:All right. And – ah – that being the possibility of him confessing to police about this matter?
PG:Mmm.
HODGE:Is that correct?
PG:Yeah.
HODGE:Now did I, or did I not, - ah – did I say to you that I do not want this person to confess to anything that he did not do?
PG:Yeah.
HODGE:All right. Now have I had any influence on this person in that respect, on – on your son?
PG:No.
HODGE:No. Okay. Now I'm told that your son now wishes to tell police certain things – ah – and its my intention – ah – in relation to this matter – and its my intention to ask him what he wants to tell us and – ah – bearing in mind you don't have to answer those questions. What do you now want to tell the police about this matter?
In cross-examination, Detective Hodge denied telling PG that it would be best if the accused confessed and denied that the matters he and PG spoke about, which are referred to in the passage in paragraph [35], were said prior to PG and DCW visiting the accused in the cells. On his evidence, the matters referred to in the record of interview were spoken of after PG and DCW returned from the cells.
It was submitted by Mr Doyle that this conversation plainly did take place before the cell visitation and that I should accept PG's evidence as to what was said to her about it being best if the accused confessed. I accept this submission. Plainly, when Detective Hodge said to PG, "I had some ... inkling of what you were gonna talk to your son about", he was referring to something said before the cell visitation. The whole context satisfies me that these words were all spoken before the cell visitation. The conversation is also consistent with Detective Hodge saying to PG that it would be best if the accused confessed. Further support for this is to be found elsewhere in the second part of the record of interview when Detective Hodge uses the expression, "that's probably the best", when he is told by the accused that he wishes to answer his questions.
The evidence of Detective Nicholson was that during the interval after the accused has been returned to the cells, PG asked Detective Hodge what was going to happen next and whether the accused would be charged. Detective Hodge said that the accused would be charged in relation to the second unlawful entry, but that it was unclear whether he would also be charged in relation to the first and further investigations needed to be carried out. PG asked what Detective Hodge thought of what had been said in the record of interview and Detective Hodge replied:
Well, they're both blaming each other in relation to the entry into the Haritos Street house. They're both blaming each other. And really, at this point in time, we're going to have to just continue investigating it and having a look at it before we make any decisions about what's going to happen with that one.
At the end of that conversation, or shortly thereafter, PG asked to see her son in the watchhouse. Detective Hodge said she could do that and the necessary arrangements were made. He said he was present during the whole of the conversation between PG and Detective Hodge and did not recall any conversation concerning the fact that Detective Hodge had any understanding or inkling about why PG wanted to speak to the accused.
According to DCW, Detective Nicholson said to her during the interval, "Do you know how serious this is?" She said, "No. I know that breaking and entering isn't the right thing to do". He said, "There's something else that happened." She said, "Well, what?" and Detective Nicholson said that the accused had supposedly threatened a woman with a knife. Whilst this was happening, Detective Hodge was speaking with PG. DCW then went over to PG and said, "Can I speak to you?" PG said, "Yes" and DCW said to PG, "Well, it's really serious". PG and DCW went outside the building and following a discussion between them, they went back inside and PG asked the Detectives if she could speak to the accused.
It is impossible to reconcile all of these versions, but I am satisfied that the police had told PG and DCW that they believed that the accused had committed the first unlawful entry and had held a knife at the woman's throat, that Detective Hodge encouraged PG to believe that it would be best if the accused confessed, that PG said she wanted to speak to her son again, that Detective Hodge agreed to arrange this, that he said to PG that he had an inkling that what she wanted to speak to her son about was whether he was prepared to confess to the first unlawful entry, but that he did not want the accused to confess to something he did not do.
When PG and DCW spoke to the accused in the cells, PG said to the accused that the police had said that he had entered the first house. The accused said nothing. She said to him: "Why?" He said, "Sorry mum, sorry mum." In cross-examination, PG said that she had conveyed to the accused that he would be "better off if you tell them you was in that house."
According to DCW, all PG said to the accused was "Why? Why son, did you do it?" The accused said, "I'm sorry. I'm sorry mum". The accused said he wanted to confess. PG said, "Are you sure?" The accused said, "Yes". DCW said, "Do you want me to go and get the detectives?" The accused said, "Yes". She then went and told the detectives that the accused wished to speak to them again. I accept the evidence of PG and DCW. To the extent that there are matters of difference between these accounts, I think it is probable that both accounts are correct and that the witnesses remember different things which make up the whole picture.
The second interview began at 2.10 pm. After the passage quoted in para [35], the following occurred:
THE ACCUSED: (NO VERBAL RESPONSE).
HODGE:LLH?
THE ACCUSED: Um.
HODGE:What do you wanna say to me?
THE ACCUSED: Um, Ah, (inaudible) for that.
HODGE:I beg your pardon?
PG:(Inaudible)
THE ACCUSED: Yeah, that is.
PG:(Inaudible)
THE ACCUSED: Um – well that other fella, James and him went to well this pub in the city (inaudible).
PG:(Inaudible)
THE ACCUSED: And he bought – he buy a bottle of 100 pipers.
After this, the accused gave an account to the police to the general effect that it was he who went inside the first house and that he obtained the knife from the kitchen because the occupant's dogs began to bark at him.
When the original tape was played in Court, I thought I heard PG say on the occasion of the third "inaudible" on the transcript, "Now you tell him". I have since listened to the tape several times. I think I was mistaken. I am unable to find what PG said on any of the occasions where the transcript indicates that PG said something which could not be transcribed. PG was unable to remember what she said.
Counsel for the accused submitted that the second interview was not voluntary because Detective Hodge had induced PG to obtain a confession from her son, resulting in the accused's will being overborne. Alternatively, it was submitted that the failure to explain to PG and to DCW the proper role of a prisoner's friend led them to take a course which resulted in the obtaining of a confession, whereas, if the role had been properly explained, this would probably not have occurred. There is no doubt that a statement made by a person in authority to a suspect in police custody to the effect that "it would be best if you confessed" is an inducement. It is equally clear that such a statement made by a person not in authority to a suspect not made in the physical presence of any person in authority is not an inducement: see Deokinnan v The Queen [1969] 1 AC 20. If an inducement is made by a person not in authority in the physical presence of a person in authority, the inducement will render the confession involuntary unless the person in authority disassociates himself from the inducement: see R v Cleary (1964) 48 Cr App R, 116; R v Moore (1972) 56 Cr App R, 373. However, I consider that a statement amounting to an inducement when made by a person not in authority, should be treated as if it were made by a person in authority when the statement is made at the behest of, or with the previous knowledge and consent of, a person in authority. Indeed, so much seems to have been accepted by the Privy Council in Deokinnan v The Queen, supra, at 27. In the present case, it cannot be inferred that Detective Hodge requested PG to tell the accused that it would be better for him to confess, but, if he had turned his mind to it, he ought to have realised that this was more than a mere possibility. It was plain to him that PG intended to speak to the accused with a view to seeing if he was prepared to confess. On the evidence, PG was, to his knowledge, unwell. She was the accused's mother and likely to repeat to the accused anything Detective Hodge had said to her about that subject. The accused was only fourteen and likely to be influenced by whatever his mother told him. At the least, Detective Hodge ought to have said to PG that she ought not say to the accused he would be better of if he confessed, or to have disassociated himself from anything said on that topic by suitable words in the record of interview. In all the circumstances I am not persuaded on the balance of probabilities that the prosecution has established that the second record of interview was voluntary.
If I am wrong in this conclusion, I would reject the second part of the record of interview in the exercise of my discretion on the ground that the confession was improperly obtained having regard to the additional fact that neither PG nor DCW had had explained to them their role as a prisoner's friend and that I consider it more probable than not that a proper explanation would not have resulted in the making of the second record of interview.
Accordingly, I rule that the whole of the record of interview will not be admitted into evidence at the accused's trial.
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