R v N

[2009] QDC 428

DISTRICT COURT OF QUEENSLAND

CITATION:

R v N [2009] QDC 428

PARTIES:

R

(Respondent)

v

N

(Applicant)

FILE NO/S:

DIS-00002770/09(1) (LFR MTIS-DIS-57/09)

DIVISION:

District Court at Mt Isa

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Mt Isa

DELIVERED ON:

20 August 2009

DELIVERED AT:

Beenleigh

HEARING DATE:

14 August 2009

JUDGE:

Dearden DCJ

ORDER:

That the interview between the defendant N and PCC LB conducted at the Mornington Island Police Station on 6 March 2007 is ruled inadmissible.

CATCHWORDS:

CRIMINAL LAW (Qld) – Police powers and responsibilities – Police records of interview – Admissibility – Juvenile Offenders - Voluntariness – Right to silence – Unfairness discretion

LEGISLATION:

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

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

CASES:

Siddon v State of Western Australia [2008] WASC 100

R v LR [2005] QCA 368

R v R & T [2009] QDC 425

R v E [2009] QDC 427

R v L [2009] QDC 426

R v B [2009] QDC 429

COUNSEL:

Mr M Cowen for the respondent

Mr G Lynham for the applicant

SOLICITORS:

Director of Public Prosecutions (Qld) for the respondent

Legal Aid Queensland for the applicant

1. This is an application by the defendant, N, seeking that an interview between himself and PCC LB conducted at the Mornington Island Police Station on 6 March 2007, be ruled inadmissible.

1. The defendant was born … 1990[1] and was 16, and therefore a “child”[2] at the time of the interview. 

   [1]Exhibit 14B.

   [2]Juvenile Justice Act 1992 s 4 and Schedule 4 – Definition of “child”.

Background

1. I have previously canvassed the factual background of these proceedings at some length in my ruling in respect of co-defendants, R and T, delivered (ex tempore) at the Mt Isa District Court on 13 August 2009[3].

   [3]R v R & T [2009] QDC 425.

1. It is relevant in respect of this application to repeat only that the alleged offences occurred at Mornington Island on 28 February 2007 and that P was the complainant.  The defendant in this application was one of a group of male aboriginal youths alleged to have been involved in physical and sexual offences against the complainant.

1. This defendant, N, admitted being present during the commission of the physical and sexual offences, and admitted further that at one stage he touched the complainant in her vaginal area.

The Law

Voluntariness

1. I refer to and adopt my exposition of law in respect of voluntariness of admissions, as set out in my ruling in relation to co-defendants R and T delivered (ex tempore) at Mount Isa District Court on 13 August 2009[4]. 

   [4]R v R & T [2009] QDC 425.

Unfairness Discretion

1. Similarly, I refer to and adopt my exposition of the law in respect of the unfairness discretion, as set out in my ruling in relation to co-defendants R and T delivered (ex tempore) at Mount Isa District Court on 13 August 2009[5]. 

   [5]R v R & T [2009] QDC 425.

Records of interview – juvenile offenders

1. I refer to and adopt my exposition of the law in respect of records of interview between police and juvenile offenders, as set out in my ruling in respect of the co-defendant L delivered (ex tempore) at Mount Isa District Court on 13 August 2009[6].

   [6]R v L [2009] QDC 426.

Conclusions re Admissibility of Record of Interview

1. The admissibility of the record of interview needs to be considered firstly in respect of voluntariness, (ie whether the defendant N “has spoken in the free exercise of a choice to speak or to remain silent”)[7], in respect of which the prosecution bears the onus, and secondly, if necessary, pursuant to the unfairness discretion, on which the defendant bears the onus.

   [7]Siddon v State of Western Australia [2008] WASC 100, para [3].

1. UY was present as a “support person”[8] during the interview.  UY referred to herself as the defendant’s “Nanna”, having brought him up since he was small[9].

   [8]Juvenile Justice Act 1992 s 29(1).

   [9]Exhibit 14B p 2.

1. UY was not provided with any documentation in respect of her role as a support person, contrary to the provisions of the Police Powers and Responsibilities Regulation Schedule 10 (Responsibilities Code) s 44A[10].  UY had tried, unsuccessfully, to track down RF from Aboriginal Legal Aid for advice prior to the interview[11].

   [10]Transcript p 3-22.

   [11]Transcript p 3-27 – 3-28.

1. UY did not discuss the allegation with the defendant prior to the interview[12].  Although UY had attended three or four previous police interviews with N, she had not spoken to a lawyer on any of those occasions, and there were occasions in this current interview where she didn’t understand things[13].

   [12]Transcript p 3-22

   [13]Transcript p 3-27

1. A careful review of the video of the interview indicates that the defendant was not asked to explain the caution in his own words[14] even though he was an aboriginal child in a remote indigenous community about to be questioned in respect to very serious allegations.  In my view it was, in these circumstances, incumbent on the interviewing police officer not to accept neither the defendant’s monosyllabic answers, nor UY’s assessment that he understood as being sufficient assurance that the defendant did, in fact, understand the caution that the police officer was administering.

   [14]Police Powers and Regulations Schedule 10 (Responsibilities Code) s 37(2).

1. It became painfully clear that the defendant did not understand what a “lawyer”, “solicitor” or “legal man”[15] was despite having previously taken part in police records of interview.[16]

   [15]Exhibit 14B pp 3-4.

   [16]Transcript p3-27

1. It is certainly not clear to me from Exhibit 14B that the defendant understood his rights to contact a lawyer, and it was simply not put to the defendant that “questioning would be delayed for a reasonable time for that purpose”.[17]

   [17]R v LR [2005] QCA 368 per Keane JA para [48].

1. In my view it was clearly a situation when an aboriginal child, in an interview with a support person not briefed at all in respect of her role (whether by documents or oral briefing or both) was therefore not able to exercise a free choice whether to speak or to remain silent.  That, as I indicated in my ruling in respect of the defendant, L, delivered (ex tempore) on 13 August 2009[18], is a threshold question, and what occurs subsequently in the interview, including assurances of the defendant’s understanding from the support person, and admissions against interest by the defendant, do not make the interview “voluntary”.

   [18]R v L [2009] QDC 426

1. It follows therefore that I have not been persuaded on the balance of probabilities that the interview between PCC LB and the defendant, N, was given voluntarily, and therefore I consider that it should be excluded from evidence at the trial of the defendant on this indictment.

Unfairness Discretion

1. Although I have reached the conclusion to exclude the interview based on voluntariness, I consider it appropriate to also express my views on the issue of the unfairness discretion.  If it had been necessary to do so, I would also have excluded the interview (noting that the burden of proof lies on the defendant on the balance of probabilities) on the following grounds:

(1)The lack of confirmation that the defendant understood his right to silence and the failure of PCC LB to elucidate whether the defendant did understand the caution (and consequently his rights);[19]

[19]Police Powers and Responsibilities Regulation Schedule 10 (Responsibilities Code) s 37(2).

(2)The lack of confirmation that the defendant understood his legal right to advice and assistance and the failure of PCC LB to elucidate whether the defendant did understand the relevant caution;[20]

[20]Police Powers and Responsibilities Regulation Schedule 10 (Responsibilities Code) s 36.

(3)The clear breach by PCC LB of his legislative and his operational obligations, in respect of the defendant’s understanding of his rights, and the support person’s understanding of her role (including ensuring that the support person received the required documentation;[21]

[21]Police Powers and Responsibilities Regulation Schedule 10 (Responsibilities Code) s 44A.

(4)The failure of PCC LB to recognise the defendant’s “special needs” as an aboriginal child in a remote indigenous community who could not read or write “okay”[22] and PCC LB’s consequent failure to comply with Operational Procedure Manual paras [6.3.2] and [6.3.3].

[22]Exhibit 14B p 6.