R –v- Noble
[2006] QDC 11
•27 January 2006
DISTRICT COURT OF QUEENSLAND
| CITATION: | R –v- Noble [2006] QDC 011 |
| PARTIES: | THE QUEEN Against Lesley John NOBLE |
| FILE NO: | 12/ 06 |
| PROCEEDINGS: | Application for pre-trial directions. |
| DELIVERED ON: | 27 January 2006 |
| DELIVERED AT: | Townsville |
| HEARING DATES | 24 and 25 January 2006 |
| JUDGE: | CF Wall QC |
| ORDER: | Police interview excluded. |
| CATCHWORDS: | CRIMINAL LAW – CHILDREN - EVIDENCE – application to exclude police interview with Aboriginal acc – person of special need as defined in Operational Procedures Manual, Qld Police Service - non-compliance with s. 37(4) Responsibilities Code and s223 Police Powers and Responsibilities Act - adequacy of support person - wh support person understood his role – wh child provided with sufficient assistance by support person - wh police should explain role to support person Legislation referred to: |
| COUNSEL: | Mr J. Greggery for the Crown |
| SOLICITORS: | Queensland Director of Public Prosecutions for the Crown Anderson Telford Lawyers for the Accused |
HIS HONOUR: Lesley John Noble is charged that on the 26th of November 2004 at Palm Island he and others being riotously assembled together unlawfully began to destroy a police station. He is also charged with others with wilfully and unlawfully setting fire to the building housing the Palm Island Police Station.
Objection is taken to the admissibility of his interview with police on the 30th of November 2004. That interview, I am told, is the only evidence against him.
Lesley Noble was born on the 11th of October 1988 and was aged 16 years on the 30th of November 2004. He was born on Palm Island. He completed grade 10 but I doubt that he passed it.
On the 30th of November 2004 he had a girlfriend and a young daughter. His parents were separated. They live on Palm Island. He did not live with them. On the 30th of November he, with his girlfriend and daughter, were sleeping at the Palm Island house of Alex Morgan. Noble seems to have been staying with Mr Morgan at the time having previously stayed with his, that is Noble's, aunt. Noble was the best friend of a young cousin of Mr Morgan.
He does not speak very clearly and it is quite difficult to understand him. I also found him to be quite obtuse and likely to be easily influenced by persons in a position of authority notwithstanding that he could be likely to present a degree of immature black bravado in certain circumstances more as a result of his chronological age rather than his intellectual age.
I found him to be of dull intelligence. I accept the assessment of Miss Dormer that his intellectual maturity is that of a below average 11 year old child. This is due to multiple and complex factors including his life circumstances, substance abuse (alcohol and drugs) and his limited education.
Nevertheless, I think he is more worldly, not necessarily more street smart, than an 11 year old child. He had, as I said, a girlfriend and a daughter. He gave me the impression in his evidence, not in his interview though, that he knew what answers would suit him, or be to his benefit, and what may be against his interest. That could be due to his involvement with Miss Dormer, his legal representatives, and an awareness of the nature of the present application. He is, of course, older now than he was when he was arrested and interviewed.
I agree with Miss Dormer that he was not fully capable of understanding some of the questions asked of him in the interview but only those referred to also by Senior Constable Price about the caution. The questions about his involvement in the offences he is charged with were simple and easy to understand and he gave simple answers to them. Listening to the interview he appeared to be able to understand those questions and his answers were sensible and responsive.
In his evidence he appeared to understand questions asked of him by Mr Lynham including questions more complicated than those asked of him in the interview and he made responsive answers, but that may be due to his current state of awareness.
I agree though with Miss Dormer that his knowledge of the consequences which could flow from his answers during the interview was likely to have been less than complete and that he probably did not fully understand those consequences. On the other hand I think he did know what was happening to him and why.
At the time of the interview he was, as was recognised by Senior Constable Price, a person with a special need within the meaning of the Operational Procedures Manual (OPM). He was a child and an Aboriginal. It would have been apparent that he was also immature in terms of age and development. He also had, as was conceded, a reduced capacity to look after or manage his own interests. He was obviously disadvantaged by cultural and sociological conditions.
He was arrested at about 6.30 a.m. having just been awoken. He was conveyed to the Palm Island school, the temporary police station, and the interview commenced at about 6.45 a.m. Noble says he was still sleepy and concerned about his girlfriend and daughter and that is probably so. There was little time for him to appreciate what was happening to him and to take stock of things.
Senior Constable Price did not comply with section 223 of the Police Powers and Responsibilities Act. He said he thought others would but the responsibility was his. In fact no inquiries at all appear to have been made about Noble's parents or their whereabouts.
The legislative scheme prescribed by the Juvenile Justice Act, the Police Powers and Responsibilities Act, and the OPM, is clearly designed to protect children and to see that they are fairly treated as children and to provide safeguards to ensure that these objectives are achieved.
The interviewing police were next obliged (by section 29 of the Juvenile Justice Act, section 252 of the Police Powers and Responsibilities Act, and sections 6.3.3 and 6.3.4 of the OPM) to ensure that the accused spoke to a support person before the interview commenced and to allow that person to be present for the interview. Senior Constable Price said he was aware of the provisions of chapter 6 of the OPM.
Fortuitously for the police Mr Morgan arrived at the temporary police station shortly after the accused.
Mr Morgan gave the following evidence:
"I walked into the police - into the school yard. And they asked what I was doing there and I said, 'They took my nephew' - 'grabbed him from my place', and just wanted to see where he was and if he was all right.
All right. What happened after you told them you wanted to see where Les was and if he was all right?‑‑ They took me to the room that they were interviewing him in.
All right. Did you speak to any police officers about what was going on?‑‑ Yeah. I asked them and they said they had him and - they had him there for interview in regards to the riot.
Okay. Did they tell you anything else about what had happened?‑‑ No.
So what happened then?‑‑ They let me in the room and then I asked if I could speak to him alone for a few minutes.
Yes?‑‑ And they stepped outside. And then they came back in then. And then that's when they started talking to Les.
All right. Did you talk to Les while the police were outside?‑‑ Yeah.
And how long did you talk to him for?‑‑ Three minutes - four minutes.
Okay. Of what did you talk about?‑‑ I just basically told him - just to watch what he say.
To the police?‑‑ Yeah.
All right. Did you know if he'd spoken to the police before you got there?‑‑ No.
And did you say anything else to Les?‑‑ No.
Did he tell you what was going on?‑‑ No, he - no, he didn't tell me anything.
Okay. Did the police tell you any more details about what had happened and what was‑‑‑‑‑?‑‑ They‑‑‑‑‑
‑‑‑‑‑going on?‑‑ Yeah. They came back in and we sat down. And they just spoke about what they were going to do to Les - like through the interview wise and everything. And I said, 'Yeah, that's fair enough.'
Did they tell you why you were there?‑‑ No. I asked to sit in, if I could be there with him while they interview him because he was still a minor at the time."
Mr Morgan said that on the way to the school he had tried unsuccessfully to contact an Aboriginal Legal Aid representative and the accused's aunt.
He also gave the following evidence:
"So, just so I've got the sequence clear you arrived at the temporary school yard - the school yard where the temporary police station was, a female police officer goes and gets the taller police officer you saw here this afternoon?‑‑ Yeah.
He's taken you to the room where Lesley was?‑‑ Yeah.
And he said nothing to you when he was taking you in to see Lesley?‑‑ No.
You then asked if you could speak to Lesley?‑‑ Yeah.
The two police officers left the room?‑‑ Yeah.
And even by that stage they still said nothing to you?‑‑ No.
They haven't said to you for example, 'Can you stay to be a support person for Lesley' by that time?‑‑ No.
Okay. And then you sat down and you spoke to Lesley did you?‑‑ Yeah.
Did Lesley say much to you?‑‑ No.
Did you ask him what he was doing there or anything?‑‑ No, I - I just said that - I said, 'Just be careful what you say.'
How long did you speak to him for?‑‑ Oh, wouldn't have been more than a couple of minutes.
Okay. Other than saying, 'Careful what you say', do you recall saying anything else to Lesley?‑‑ Just about being around the area when the riot started.
Okay. Did Lesley say anything to you?‑‑ No.
Was he just sitting there‑‑‑‑‑?‑‑ He was just sitting there.
‑‑‑‑‑quietly?‑‑ Yeah.
Did you notice that he was more quiet than usual?‑‑ Yeah.
Did he look a little bit upset or a bit scared?‑‑ Yeah, he was.
What gave you that impression?
HIS HONOUR: Well, what was it; upset, scared? What - what did he‑‑‑‑‑
MR LYNHAM: Okay. Well, I've used the words 'upset' or 'scared.' Did he look upset?‑‑ He was pretty much upset.
And did he look scared?‑‑ Yeah, I reckon he did.
And what was it about him that made you think he looked upset?‑‑ Well, he couldn't talk to me or anything. He was just pretty speechless.
And normally you can talk to him quite easily?‑‑ Yeah. Yeah.
And what made him look a bit scared to you?‑‑ I'm not sure. I could just see it in him.
So, he was sitting there and he wasn't talking to you?‑‑ No.
And I think you said before you could see it in him. What did you mean by that?‑‑ That he was scared. You could see.
Okay. So, it was something about the way he looked?‑‑ Yeah, he looked and - yeah.
So, basically that first time that you saw Lesley sitting in the room he didn't say anything to you at all?‑‑ No.
And you didn't say much to him either?‑‑ No.
Other than be careful what he says?‑‑ Yeah.
And that lasted for maybe a couple of minutes but it wasn't for a very long time I take?‑‑ No.
And then the police officers came back in?‑‑ Yeah.
Did you have to get up and tell them you were finished or did they just come back in?‑‑ Oh, I - yeah I went out. I told them that I was finished with him, yeah.
Okay?‑‑ That they could come back in."
I accept what Mr Morgan said.
The interview then commenced with Mr Morgan present. Senior Constable Price described Mr Morgan as Noble's biological uncle, which he is not. He is a family friend even though he identified himself in the interview as Noble's uncle.
The following passages are taken from the transcript of the interview:
"PRICE: Okay very good. Mate there is a matter I'd like to speak to you about okay and that's the reason why you are under arrest at the moment. Okay you are under arrest, which means you're not free to leave, you're in my custody, okay you understand that?
NOBLE: Yeah.
PRICE: Okay now before we talk about that matter there's some things I have to say to you okay and the first is, you have the right to remain silent by this I mean you don't have to say anything or make any statement as anything you say or statement you make is being recorded by this thing here and can be later used in evidence against you or any other person. Do you understand that?
NOBLE: Yeah.
PRICE: What does that mean?
NOBLE: ####
PRICE: Hey, you don't understand it?
NOBLE: Yeah.
PRICE: Okay what that means is I'm going to ask you questions, like I'm a police officer, you understand that and so is this fellow here we're police officers. And we're going to ask you questions okay, now just because we ask you a question doesn't mean you have to answer it. Do you understand that? What does that mean? You have to speak up a little bit. Do you understand that?
NOBLE: Um ####
PRICE: Okay you and I are talking now right, we're talking, just because I say something to you doesn't mean you have to say something back, do you understand that? You have to talk your answers mate.
NOBLE: Yeah.
PRICE: You do understand that?
NOBLE: Yes.
PRICE: Okay do you understand that because we're talking this tape is, is recording what we are saying.
NOBLE: Yep.
PRICE: Yep and you understand that this tape can be played to a court, do you know what a court is? Like a Magistrate.
NOBLE: Yeah.
PRICE: We can play this to a Magistrate and they can listen to what we've said here, do you understand that?
NOBLE: Yeah.
PRICE: Okay, Alex are you satisfied that he understand what I've just said to him?
MORGAN: Yeah.
PRICE: Okay, now you also have the right to have a friend or a relative present, now you have Alex here and you've said you're happy for him to be here.
NOBLE: Yeah.
PRICE: Yes okay, you also have the right to contact a solicitor or a lawyer and get legal advice from them and have them present during any questioning while we're talking. Do you want to do that?
NOBLE: Yep.
PRICE: You wanted to do that, did you?
NOBLE: Yeah.
PRICE: Okay, I will suspend the interview at this time is six fifty-four a.m.
(Interview re-commenced)
PRICE: Okay this is a recommencement of interview the time is seven fifteen a.m. Present in the room is Detective Senior Constable Garth Price, Plain Clothes Senior Constable Chris Rahmann, juvenile Lesley Noble and interview friend Alex Morgan. Alex do you agree that ah a short time ago I terminated this interview after um Lesley had stated he wanted legal representation.
MORGAN: Mmm-hmm.
PRICE: And I've, I've gone away and I've just come back now. Okay Lesley I've just been informed that ah, you've said you don't want any solicitors, you just want to talk to me, is that right?
NOBLE: Yeah.
PRICE: Okay, has anyone threatened or promised to induce you to make that decision. Has anyone told you, you had to talk to me or anything like that?
NOBLE: no.
PRICE: No, okay so that, that decision you've made just to talk to me, did you make that by yourself?
NOBLE: Yep.
PRICE: And no-one made you make that decision?
NOBLE: No.
PRICE: No. Alex whilst you've been here as an independent person has anyone made any threat, promise or inducement to Lesley that he has to speak to the Police.
MORGAN: No.
NOBLE: And you're satisfied that he's made that decision of his own free will?
MORGAN: Yes.
PRICE: Okay, very good. Um okay, so what I'll do is I'll keep talking to you then, okay, now if you change your mind, anytime and you do want to talk to a lawyer, solicitor, you just tell me okay, and I'll go and go back and find them again. Do you understand that?
NOBLE: Yes.
PRICE: Okay, now has any threat promise or inducement been held out to you to speak to me at all?
NOBLE: No.
PRICE: No okay all right. Now I just want to get some um, details off you first Lesley. Mate um where about are you living?
NOBLE: Palm Island.
PRICE: Here on Palm Island.
NOBLE: Yeah.
PRICE: And where about were you born?
NOBLE: Palm Island.
PRICE: Okay now your education, what, what are you going to school at the moment?
NOBLE: No.
PRICE: Okay so what grade did you go to?
NOBLE: Ten.
PRICE: And how long ago did you finish school?
NOBLE: ####
Price: Sorry, two years back. Did you finish grade 10?
NOBLE: Yep.
PRICE: Yep, now Lesley do you have any trouble reading words like English. Can you read well?
NOBLE: Yeah.
PRICE: You can.
NOBLE: Yeah.
PRICE: Can you write well?
NOBLE: ####
PRICE: Okay, do you have any trouble speaking English?
NOBLE: No.
PRICE: Okay so you have understood everything that everyone said to you so far?
NOBLE: Yeah.
PRICE: Okay, now this is very important, if anyone says anything to you that's myself and my partner that you don't understand, don't be shy just ask us if we can say it again. Okay so we might use words that ah, different to the words you use, okay so don't be shy, you just let me know and we'll try and explain ourselves a bit better. Okay, okay now as I said to you Lesley the reason I've placed you under arrest and bought you here is I wish to speak to you about some things that happened here on Palm Island on the 26th of November, that's the 26th of this month, and that was last Friday. Okay do you understand that?
NOBLE: Yeah.
PRICE: Now it'll probably easier if we break it down, separate some stuff. First of all I want to talk to you about what happened at the Police Station, do you know what I'm talking bout there?
NOBLE: Yeah.
PRICE: You know what there. Okay, now I'm going to ask you to tell me what happened, when you do you've got to speak up a bit, don't by shy, just us here. Just speak clearly and speak a bit louder, okay. So can you tell me what happened at the Police Station last Friday?”
When the accused was first cautioned and asked, "Do you understand that?", he replied, "Yeah." Notwithstanding that answer, Senior Constable Price did not think he did understand the caution and said that clearly he did not mean "Yeah." When the caution was repeated Senior Constable Price said that he again was not satisfied that he understood it. When it was then explained to him piece by piece, Senior Constable Price said that he was nodding his head.
When Senior Constable Price asked Mr Morgan whether he was satisfied that Noble understood what was just said to him, to which Mr Morgan responded in the affirmative, Mr Morgan said that he in fact was not too sure and that he did not check with Noble as to whether he understood what had been said to him.
During the break in the interview when Senior Constable Price made inquiries about a lawyer as requested by Noble, he said that Noble and Morgan spoke privately and then Morgan said that they wanted to continue the interview.
In relation to this part of the interview Mr Morgan gave the following evidence:
"When the police officer was trying to find a lawyer did you speak to Lesley about whether or not he needed a lawyer?‑‑ No.
How was it that Lesley changed his mind about wishing to speak to a lawyer before continuing with the interview?‑‑ I'm not sure.
You're not sure? Did you suggest to Lesley because you're sitting there he didn't need a lawyer?‑‑ No.
Did Lesley say anything about not wanting a lawyer?‑‑ Not that I recall.
After the police stopped the interview after Lesley said to them he wanted to first speak to a lawyer, how was it that the interview started up again even though Lesley had not spoken to a lawyer. What was the reason for that?‑‑ I can't recall.
You can't recall. Okay. One thing you can recall, I take it, is that it wasn't because Lesley said to you, "I no longer wish to speak to a lawyer."?‑‑ No.
He never said that to you?‑‑ I don't recall it‑‑‑‑‑
Now, the only time you said anything in the interview was when the - one of the police officers asked you a question specifically; that's the only time you said anything?‑‑ Yeah.
Okay. Did you have any idea what was going on in the interview?‑‑ No.
Did you have any idea the - the likely consequences for Lesley with him speaking to the police?‑‑ Oh, yeah.
What did you think would happen to him?‑‑ Just thought that - that what he said will go against him.
Did you think he'd be charged?‑‑ I think so, yeah.
Did you think he'd be brought - brought to Court because of what he said?‑‑ Yes.
Did you say that to Lesley at any stage?‑‑ Yeah.
When did you say that to him?‑‑ Oh, after the interview.
After the interview?‑‑ I told him - I told him that he'd just put himself right in.
Okay. So, you appreciated that when he was speaking to the police but you only told him that afterwards?‑‑ Yeah."
Mr Morgan also gave the following evidence:
"Mr Morgan, was it ever explained to you by the police either before or during the interview that you were - you should act in the best interests of Lesley; that you were there to act in his best interests?‑‑ I don't recall.
So, Mr Morgan, it was not explained to you the nature of your role in that interview process with Lesley?‑‑ No.
It was not explained to you that you were there to act in the best interests of Lesley?‑‑ No."
When the interview recommenced after a 20 minute break during which Senior Constable Price went to inquire about a lawyer, section 37 of the Responsibilities Code (schedule 10 of the Police Powers and Responsibilities Act) was not complied with.
Section 37 subsection (4) provides: "If questioning is suspended or delayed the police officer must ensure the relevant person is aware he or she still has the right to remain silent and if necessary again caution the person when questioning resumes."
Mr Greggery, for the Crown, conceded that this requirement assumed more importance where the support person was unaware of his role and where the interview was resumed after a break caused by a request to contact a lawyer. Those concessions in my view are properly made.
In my view the matter of most concern on this application does in fact relate to the position of Mr Morgan as a support person. I am not satisfied that he understood what that role encompassed or that he was in a real position to advise and assist Noble or that he knew he could do so and the extent to which he could.
In this respect the police failed, I find, to comply with relevant provisions of the OPM.
Unknown to Senior Constable Price or Constable Rahmann, Mr Morgan was in fact a witness to the events about which Noble was being interviewed.
By reason of section 257B(1) and (3)(g) a person who "witnessed the commission of the offence for which the relevant person (here Noble) is being questioned" should not perform the role of a support person.
Section 257B was not in force at the time of the present interview but Senior Constable Price said, notwithstanding this, that had he known Mr Morgan was a witness he would not have permitted him to perform the role of a support person. That concession was properly made.
He should, with respect, have first made inquiries of Mr Morgan about this but he did not.
Senior Constable Price conceded that Noble was a person of special need but maintained he was not disadvantaged because Mr Morgan, as a support person, balanced or compensated the reasons creating the special need.
That all depends on the suitability of Mr Morgan for the role and his understanding of that role. I am satisfied here that he did not understand his role and was not, as he should have been, informed about it and about what was involved in it.
For a child in the position of Noble section 6.3.3 of the OPM required Senior Constable Price to ensure that Noble was provided with sufficient assistance to enable him to exercise his legal rights.
I am not satisfied that that was done here.
Section 6.3.4 of the OPM provides that a support person "should be in a position to assist the person with the special need in order to overcome the condition or circumstance creating the special need."
The interviewing officer was also obliged by section 6.3.4 of the OPM, upon arrival of the support person, to explain the role of the support person to the support person. No such explanation was given to Mr Morgan. In fact he was told nothing about his role.
Section 6.3.5 of the OPM provides that the role of the support person "is to ensure that the condition which creates the special need does not disadvantage the person being interviewed."
In the absence of any explanation or understanding of his role, Mr Morgan was clearly not able to assist Noble as required or ensure that he was not, as an Aboriginal child, disadvantaged by his situation. Section 44A of the Responsibilities Code was not in force at the time of the interview but Mr Greggery for the Crown conceded that it is "common sense" and that the information now required to be given to a support person should in fact have been conveyed to Mr Morgan. That concession was properly made.
Realistically Mr Morgan had no understanding of what was taking place other than that he was allowed to be present while the police interviewed Noble. I am satisfied that he was unaware that he could, for example, advise Noble not to say anything. In short, he knew nothing of his role or what was encompassed by it.
In my view his presence at the interview did not compensate for Noble's position of special need. Further, he was not, because he did not know and was not informed, in a position to assist Noble to overcome the condition or circumstance creating the special need or ensure that that condition did not disadvantage him.
Section 6.3.4 of the OPM provides that the position of a support person "may include safeguarding the rights of the person who is unable to effectively look after or manage their own interests."
Noble was, in my view, clearly in that position and Mr Morgan was, in real terms, unable to safeguard his rights.
The offences being investigated and about which Noble was being interviewed were extremely serious and likely to have had serious consequences for Noble were he to be implicated in them either by his own words or by witnesses.
Section 6.3.2 of the OPM provides that: "An interview that may substantially affect the rights or liberty of a person should be subject to greater efforts to address the person's special need than an interview that is likely to have only a minor impact."
No greater effort was applied in this case and it should have been.
For these reasons I am of the opinion that it would be unfair to admit the interview in evidence against the accused and I would exercise my discretion to exclude it.
In view of this result it is unnecessary for me to consider the objection based on involuntariness.
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