R v Phung and Huynh

[2001] NSWSC 115

CITATION:	R v Phung and Huynh [2001] NSWSC 115 revised - 15/05/2001
CURRENT JURISDICTION:	criminal
FILE NUMBER(S):	SC 70215/99; 70089/99
HEARING DATE(S):	19/02/01
JUDGMENT DATE:	26 February 2001
PARTIES :	Regina Johnny Phung Thang Minh Huynh
JUDGMENT OF:	Wood CJatCL at 1

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :

COUNSEL :	Crown: W. Dawe QC Phung: R. Webb Huynh: R. McCrudden
SOLICITORS:	DPP Legal Aid Legal Aid
DECISION:	Records of Interview rejected

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

WOOD CJ AT CL

MONDAY 26 FEBRUARY 2001

70215/99 - REGINA v JOHNNY PHUNG
70089/99 - REGINA v THANG MINH HUYNH

JUDGMENT - (On admissibility of records of interview
conducted with accused Johnny Phung.
See page 175 of transcript.)

1   HIS HONOUR: Counsel for the accused Johnny Phung has objected to two records of interview conducted electronically with him on 20 December 1998, and on 4 January 1999.

2 Evidence has been received on the voir dire in relation to the issues which arise, concerning compliance respectively with section 13 of the Children (Criminal Proceedings) Act 1987, with part 10A of the Crimes Act (New South Wales) 1900 and with the regulations made pursuant to that Act contained in the Crimes (Detention After Arrest) Regulation 1998.

3   Depending upon the outcome of those issues, his co-accused foreshadowed an application for a separate trial. I have dealt with that application along with an application for severance of the indictment and with various other objections concerning the admissibility of portions of the evidence this morning. It is now appropriate to deliver reasons for my ruling last week concerning the inadmissibility of the two electronic records of interview.

4   Each accused, I note, was arraigned and pleaded not guilty to an indictment containing four counts relating to offences, each of which is alleged to have occurred on 19 December 1998 at the EPI Centre, Liverpool.

5   In short form, the relevant charges in that indictment related to the following: Count one, the armed robbery of John Paul Nguyen; count two, the armed robbery of John Huu Vinh Tran; count three, the murder of Hiep Van Nguyen; and count four, the armed robbery of Van Tri Nguyen.

6   The offences giving rise to counts one and two, it may be taken, are each alleged to have occurred in the course of incidents at about 5pm at the Centre, while those the subject of counts three and four are each alleged to have occurred again in the course of one incident at the Centre at about 10.30pm.

ERISP OF 20 DECEMBER 1998

7   The evidence on the voir dire, in the form of statements and evidence from some of the police involved, together with the custody management records, reveals the following:

a) At 12.15am on 20 December 1998, the two accused were arrested by police when stopped in a red Honda Civic that had been sighted driving from the EPI Centre shortly after the murder;
b) They were detained for a short time in a caged police wagon before being taken to Liverpool police station, arriving there at about 1.20am.
c) The accused Phung was spoken to by Detective Senior Constable Quigg at the time of his arrest, informed that police were investigating a fatal shooting earlier that night at the EPI Centre, and then cautioned. When the accused disclosed that he was 17 years of age, Detective Senior Constable Quigg informed him that he would not speak to him further until they had an adult present. He added that the accused was under arrest as he matched the description of the offender for whom they were looking;
d) Thereafter, between 1.20am and 7am, the accused was held in the dock area of the police station under the watch of Senior Constable Backhouse who was fulfilling the office of custody manager;
e) Upon arrival at the police station, Senior Constable Backhouse read aloud to the accused a portion of the caution and summary form, required by part 10A of the Crimes Act . He then gave him the document to read. The accused said in evidence, on the voir dire, that he was unable to read English, his education having ceased in primary school, save for a few months tuition subsequently in a boys home. Senior Constable Backhouse additionally informed the accused that police would assist him, if he required a lawyer, or if he wished to have a friend or relative contacted. He could not recall any response to that advice;
f) After some preliminary inquiries at the scene of the murder and at the scene where the accused were arrested, Detective Senior Constable Quigg asked the accused Phung, back at the police station, where he lived. When informed of an address where he was living with his aunt, Detective Senior Constable Quigg asked where his parents were. The accused replied that they had gone overseas to Thailand. He was then asked, "Later on, is your aunty available to come down to the police station whilst we speak with you?". The accused replied, "Yes". He was not, however, asked by police as to whether he wanted that person present or whether he wanted to nominate anyone else to perform the role of support person;
g) Detective Senior Constable Quigg and Detective Keating then attended to further inquiries in relation to the co-accused;
h) During the early hours of the morning, the accused's clothes were taken for forensic testing. He was photographed and swabs were taken from his hands for the purpose of testing for gunshot residue. This was carried out in each case under the supervision of Detective Senior Constable Neems. There was no support person present while those forensic inquiries were undertaken;
i) The forensic inquiries were conducted between 2.35am and 3.10am. The absence of a support person, it would seem, followed upon a decision, recorded in the custody management report, to not provide a support person at this time in case evidence was lost;
j) After the forensic tests were completed, the accused was allowed to sleep in the somewhat small dock, which was not far distant from the desk where Senior Constable Backhouse worked. This apparently occurred from 3.10am to the time of completion of his shift at 5.50am;
k) At 5.05am, a detention warrant was sought by facsimile transmission and granted at 5.50am. This had the effect of extending the interview period by eight hours from 5.30am. This application for detention warrant occurred in the absence of any support person and, so far as the evidence reveals, without reference to the accused, even though he had an entitlement to make submissions upon any such application;
l) Detective Senior Constable Quigg tried to contact the aunt of the accused by telephone. After receiving no answer, he and Detective Keating then went to the address provided and spoke to her and to her son, Sumsung Xayyachak. Each agreed to go to Liverpool police station. When they arrived, they were seated in the interview room, separated from the accused who was still in the dock. They had no opportunity to speak to him at this stage. No evidence was led as to whether the custody manager spoke to either of them or provided the information required by the current legislative regime;
m) The accused was taken upstairs at about 7.00am. where, with his consent, following a request from Detective Senior Constable Quigg, Dr Moynham took a sample of his blood. This, it would appear, occurred at 7.20am in the presence of the man Sumsung who later witnessed the consent form;
n) Detective Senior Constable Quigg then informed the accused that he wanted to speak to him in relation to the shooting, cautioned him and obtained his agreement to being interviewed electronically;
o) Thereafter, he was interviewed by police initially in the presence of his aunt and Sumsung, however, from a point immediately after the interview began, in the presence of Sumsung alone as the aunt became ill and withdrew. It appears that Sumsung was allowed to speak to the accused very briefly in the presence of the police, initially in his own language but later, at Detective Senior Constable Quigg's request, in English;
p) At the commencement of the interview, Detective Senior Constable Quigg obtained the accused's confirmation that he agreed to the presence of Sumsung who, as it turns out, was a 21 year old cousin of the accused and also his employer. The accused was appropriately informed of the reason for the interview and was again cautioned by Detective Senior Constable Quigg. During the interview which followed, he made significant admissions as to his involvement in the murder and in the robbery associated with it;
q) Following the interview, the accused was charged at 10.55am with murder and with the offence of armed robbery that is now the subject of count four;
r) Detective Senior Constable Quigg said that the accused and Sumsung were each asked if they wanted a lawyer present. The reply given, it was said, was negative, although this was not recorded in the ERISP, nor in any statement prepared by Detective Senior Constable Quigg. The existence of such a conversation was in fact denied by the accused on the voir dire.

8   The accused gave evidence to the effect that he had taken a number of Rohypnol tablets, and had smoked some heroin on the day of the alleged offences, and suggested that he was stoned at the time of the interview.

9   The use of Rohypnol, and a request to take him to find some tablets that he had dropped, were noted in the ERISP.

10   He claimed in the voir dire a history, which was long-standing, of drug abuse from the time that he ran away from school, a time which, it would appear, was three or four years before the alleged offences.

11   Evidence was led from Dr Moynham to the effect that when he saw the accused and spoke to him in relation to taking a blood sample, he did not himself observe any signs of the accused being intoxicated or affected by any form of substance. He said that he would have been alert to any such signs because of their relevance to the consent to the taking of a blood sample. He added that if a person was affected by heroin, then he would show signs of impaired balance, impaired concentration, would have pinpoint pupils, communication difficulties and would risk losing consciousness or of falling asleep. He said that if a person affected by such substance was on "the nod", then he would not be capable of holding a proper conversation, nor of answering questions.

12   Senior Constable Backhouse similarly did not consider the accused to have been affected by anything, it being his recollection that the accused was very calm and cooperative. Detective Senior Constable Quigg acknowledged that the accused did look tired and at times was slow in his answers. He thought that he gave the appearance of having used alcohol or drugs and agreed that this was one of the reasons why he had asked him, during the interview, whether he wanted medical assistance. His evidence, however, falls short of establishing that the accused was significantly affected either by drugs or by withdrawal symptoms.

13   There was some evidence from Dr Fogarty, a general practitioner, who from time to time, treats young persons detained at Kariong Detention Centre. It was his evidence that, in response to a telephone call from nursing staff at the Centre on 21 December 1988, he prescribed a standard treatment regime for drug withdrawal in the form of Buscopan, Quinine Sulphate, Maxolon and Diazepam or Valium. The first two of these drugs, he said, were muscle relaxants for the relief of stomach and leg cramps, the third was for nausea and the fourth was a sedative. The first two drugs were discontinued on 25 December. The third was refused by the accused and the fourth was discontinued on 29 December.

14   Somewhat surprisingly, this medication was prescribed by Dr Fogarty without any personal consultation with the accused who he did not see until either 21 or 24 January 1999, and then only for an unrelated matter. He was, therefore, not in a position to gauge the extent or nature of the accused's symptoms and he was entirely dependent upon the nursing staff report to him and, presumably, upon the history given to them by the accused.

15   I would observe that this seems a somewhat dangerous, if not irregular, practice since I would have thought it essential, if medication of that kind was to be prescribed, that a medical practitioner satisfy himself not only as to the need for it, but also as to whether there was any history which might cause an allergic or other reaction to it . However, that is by the way.

16   Although not holding himself out as an expert in the area of drug abuse, Dr Fogarty had some greater experience than that which a layman possesses, in view of his medical training and some limited experience in treating patients with a drug dependency in his practice.

17   The symptoms or signs of a heroin withdrawal in the habitual user, he said, can manifest themselves within six hours and peak within 36 to 72 hours. Those symptoms were muscle cramps, abdominal cramps, sweating, agitation and diarrhoea, but not sleepiness.

18   The signs of benzodiazepine withdrawal, which he said can last longer than those for heroin, were convulsions, agitation and restlessness. A consequence of benzodiazepine use, he explained, can be sleepiness and anxiety reduction, since it is a sedative.

19   The effects of heroin were not explored in the evidence, although it is notorious that they include immediate acute euphoria followed by sleepiness and sometimes loss of consciousness that can be fatal if not reversed by Narcan or similar emergency treatment.

20   Dr Fogarty said that none of the drugs that he prescribed were likely to affect one's ability to communicate. They would reverse the symptoms or signs of withdrawal and return the person for whom they were prescribed to a state of normality. Similarly, he said, the cessation of the standard treatment regime that he used would not be expected to occasion a patient any continuing problem so that, within five or six days, he should be generally clear of mind.

21   Dr Fogarty was invited by both counsel to view the two ERISPs. As to the first, he said that he saw no signs of the accused having been affected by heroin. That is an assessment with which I would, as a layman, agree.

22   While the accused did yawn and appear to be sleepy in its later stages, which could have been consistent with the effects of Rohypnol, Dr Fogarty said that had he been adversely affected by that substance at that stage of the interview, then he would have expected him to have demonstrated similar signs throughout it.

23   In relation to the second record of interview, he said that he saw no signs of the accused being affected by any substance. It is a fact that the accused did appear in this interview to be more alert, particularly by a comparison with the latter stages of the first interview where he was obviously showing signs of serious tiredness, although that may also be due to the fact that the video camera is positioned much closer to him, on this occasion.

INTERVIEW OF 4 JANUARY 1999

24   The relevant sequence of events concerning this interview was as follows:

a) At about 11.45am, Detective Senior Constable Quigg, acting on information, obtained a search warrant in respect of property believed to be in the possession of the accused Phung while he was being held in custody at Kariong;
b) Detective Senior Constable Quigg then went to Kariong, arriving there at about 2.05pm. The search warrant was executed and an Ericsson 768 mobile telephone said to be a portion of the property the subject of the first count was obtained;
c) Shortly afterwards, the accused was taken into the Administration and Admissions Centre at Kariong and spoken to by police in the presence of the Governor. He was cautioned and, at 2.30pm, informed that he was under arrest in relation to the armed robbery the subject of count one;
d) He was taken to Gosford Police Station and there received by the custody manager, Senior Sergeant Kinross;
e) Shortly afterwards, Detective Senior Constable Quigg asked if he had any objection to a member of the Salvation Army being present while he was interviewed;
f) The Gosford branch of the Salvation Army was contacted at about 3.10pm by Senior Sergeant Erickson and, at 3.50pm, Keith Blackbourne of that organisation attended at the police station. So far as the evidence reveals, he did not have any conversation with the accused prior to the interview. The evidence is also silent as to whether he was given the information which the legislation now requires to be supplied to a support person;
g) The custody management report notes that, at 3.50pm, Senior Sergeant Kinross cautioned the accused in the presence of Mr Blackbourne and either read or gave to him the summary sheet.

The custody management report also notes that the accused agreed to having Mr Blackbourne act as his support person. It also affirms that an inquiry was made to establish that the accused could in fact speak and read English. The documentation and the evidence in this regard was silent as to whether the accused was asked whether he wanted a relative or anyone else to be present. Certainly there is no suggestion that any relation was contacted to advise of his whereabouts, although it may be assumed that the governor of the detention centre, who was the person immediately responsible for the welfare of the applicant, was aware that he had been taken to Gosford police station;

h) Detective Senior Constable Quigg, in the presence of Mr Blackbourne, conducted an electronic record of interview with the accused, commencing at 4:10pm and concluding at 5:24pm. In the course of this interview, the accused confirmed that he agreed to have Mr Blackbourne present while police spoke to him. He made a number of significant admissions in the interview concerning the offences charged in counts one and two;

i) Following the interview, the accused was charged with the further offences mentioned.

j) Detective Senior Constable Quigg, in evidence on the voir dire, acknowledged that he could not recall if he had any conversation with the accused, on this occasion, as to whether he wanted to obtain the services of a legal advisor or whether any request was made in that regard.

k) The custody management forms are also silent as to whether any such request was made, or as to whether the accused was advised of his entitlement in that regard.

l) The computer custody management records prepared in this instance do record that no signs of intoxication were seen in the accused, that his behaviour did not suggest that he was under the influence of drugs or alcohol, and that he appeared calm and relaxed. I would add that the viewing of the ERISP would tend to confirm those observations and, as matters developed, no complaint was made in this regard. The argument that had been foreshadowed as to the accused being affected by the withdrawal treatment was no longer pressed.

25   Neither former Senior Sergeant Erickson or Senior Sergeant Kinross were called to give evidence. The former because he had not in fact been the custody manager on duty and his role was confined to telephoning the Salvation Army; and the latter because he is now on permanent sick leave due to post-traumatic stress disorder.

26   Thd issues, in relation to the admissibility of the two records of interview, concern the following:

a) Whether or not there was compliance with the requirements of law as to the provision of a support person;

b) Whether or not the accused was properly advised as to his entitlements, and in particular, offered an opportunity of obtaining legal assistance;

c) Whether or not the accused was adversely affected by drugs or by the effects of withdrawal, at the time of the first interview, to the point where the reliability of any admission made by him was in question;

d) Whether or not the accused, at the time of the first interview, was adversely affected by tiredness to the point where the reliability of any admission made was in question.

27   Compliance with the requirements of the law as to the interview process in the case of this accused, who was a juvenile and a vulnerable person, needs to be examined relevantly in the light of:

28 a) Section 13 of the Children (Criminal Proceedings) Act 1987 ("the Proceedings Act") as that provision has been interpreted in Kerry Ann Dunn NSW CCA 15 April 1992, and H (1996) 85 A Crim R 481;

b) Part 10A of the Crimes Act 1900, and in particular sections 356C, 356D, 356G, 356M, 356N and 356P;

c) The Crimes (Detention After Arrest) Regulation 1998 (“the regulations”) made under section 356X of the Crimes Act, and in particular regulations 4, 20, 21, 22, 25, 26, 27, and 29).

29   In addition, attention needs to be given relevantly in this case to the provisions of the Evidence Act, in particular sections 84, 85, 90, 138 and 139, in determining the admissibility of the records of interview so far as they may contain admissions; and in so far as any of the circumstances in which they were obtained may give rise to questions as to whether their truth was adversely affected, or to questions as to whether there would be any unfairness if they were used, or of them having been obtained improperly, illegally, or in circumstances of oppression.

30   The burden of proving that the ERISPs qualify for admission rests upon the Crown, in accordance with section 142 of the Evidence Act and are subject to the standard of proof specified in that the provision, namely on the balance of probabilities.

31   It is necessary to examine whether, in relation to the first ERISP:

a) there was a non-compliance with the relevant legislation, so far as there was no support person present when the samples were taken from the accused and tested for gun shot residue, or when the detention warrant was obtained; so far as the accused was not given an opportunity to select for himself a support person; so far as the support person was advised or not advised in relation to his role and allowed to perform the duties and rights expected of him; and so far as the accused was given the requisite assistance by the custody manager; and also whether
b) the interview was conducted at a time when the accused was tired, or affected by previous drug ingestion or withdrawal, rendering him unable properly to concentrate on the task in hand, thereby raising questions as to fairness in allowing the Crown to use the evidence; and as to whether the truth of the admissions contained was adversely affected by any of the matters mentioned.

32   It is necessary to examine, in relation to the second ERISP, whether there was non-compliance with the relevant legislation, so far as the accused was not given the opportunity to select for himself a support person; so far as any advice was given or not given to him concerning his entitlement to communicate with a friend or relative or legal practitioner; and so far as information was given or not given to the support person as to his role.

33 No question arises in relation to either interview as to whether the accused was detained beyond the relevant permitted investigation period, as calculated in accordance with part 10A of the Crimes Act; or so far as I can see, as to the need for the accused to have had an interpreter, that matter having been expressly explored with him both by Detective Senior Constable Quigg and by the custody manager. Nor does any question arise, so far as I can see it, as to the adequacy of the records kept by the custody managers, or as to the reading by them and by Detective Senior Constable Quigg, at the appropriate times, of the necessary caution and summary to the accused.

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.

35 This principle derives from what was said by Lee J in Warren (1982) 2 NSWLR 360; by Roden J in Williams NSW Supreme Court 9 August 1982; by Hunt J in Cotton (1990) 19 NSWLR 593; by Carruthers J in Dunn NSW CCA 15 April 1992; and also by Hidden J in H (supra).

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.

37   That position is reinforced by the requirements of the regulations so far as they apply in relation to vulnerable persons, of which a child is one. In particular regulation 20 requires the custody manager to assist a vulnerable person in exercising that person's rights, and regulation 26 requires the custody manager to explain to a support person that his or her role is not confined to acting merely as an observer, but also extends to doing the other things specified.

38   It is important that police officers appreciate that the regime now established is designed to secure ethical and fair investigations, as well as the protection of individual rights, of some significance, which attach in particular to children. Those rights, obviously, are of great importance when a child is facing a charge as serious as murder or armed robbery.

39   The provisions need to be faithfully implemented and not merely given lip service or imperfectly observed. The consequences of any failure to give proper regard to them is to risk the exclusion of any ERISP, or the product of an investigative procedure, which is undertaken in circumstances where there has not been proper compliance with the law.

40   Turning then to the first ERISP. Several matters of concern arise. They include the following:

a) The delay in making contact with a support person until a time, it would appear, well after the detention warrant was obtained, and well after the time of arrest at 12:15am;
b) The absence of a support person when the forensic tests were made, contrary to section 356(N)(3) and regulation 21, and also when the detention warrant was obtained;
c) The absence of any opportunity having been given to the accused to make representations concerning the detention warrant, contrary to the right implied by section 356(G)(2), 356M of the Crimes Act, and regulations 17(1)(b); and
d) The selection by police, no doubt well motivated, of the accused's aunt and cousin without, however, any appropriate inquiry being made by the custody manager concerning the wishes of the accused as to whom he wanted contacted, or as to the suitability of those persons to perform the important role expected of them;
e) The relative immaturity and inexperience of the support person, and the absence of any evidence that the custody manager advised him of the role that he was expected to play, as was required by regulation 26(1);
f) The fact that no legal practitioner was contacted, or any encouragement given to the accused to do so, when facing a charge as serious as murder;
g) the failure of the detectives to allow the accused to speak privately with the support person, once he did arrive, an entitlement which is foreshadowed in section 356(N)(4)of the Crimes Act. Such conversation as did occur in this regard was apparently confined to a period of one or two minutes, and was required to be conducted in English in the presence of the detectives;
h) The fact that there were some signs of the accused being tired and of having used drugs, sufficient to see him subsequently placed on a regime for drug withdrawal, that is following his reception at Kariong;
i) The fact of him being interviewed after having a very limited opportunity of having a nap in the uncomfortable dock of a police station, in which it may be accepted there was a good degree of activity due to the murder investigation that was being carried out, including tests conducted by the physical evidence officer;

j) The fact that by question 463 of the ERISP, almost two hours into the interview, and during the following 30 minutes or so, it is crystal clear that the accused was showing real signs of exhaustion - in the sense that he was yawning, dropping off to sleep from time to time, and at one point stating that he was very tired. At question 463, Detective Keating mouthed his obvious concern to Detective Senior Constable Quigg, when the former noted that the accused seemed to be asleep. It was at this point that the accused was asked if he was prepared to continue.
It was fairly accepted by the Crown, having regard to the tired state of the accused at and following this point, that the balance of the interview would not be pressed, even though it is a fact that the accused did answer a number of other questions clearly, and did from time to time appear alert.

k) The fact that early in the record of interview Detective Senior Constable Quigg informed the support person that he was only there, "as an independent officer", this occurring at a time when it appears that he had tried to assist the accused in dealing with a question.

41   Although my impression, from viewing the video, is that the accused appeared to understand and answer the questions put to him, in a way suggesting that he was not suffering the effects of earlier substance abuse or withdrawal, the evidence on this issue was less than satisfactory, in view of Dr Fogarty's limited experience. The issue in this regard was one in which it would have been appropriate for the Court to have had the assistance of an expert in the field.

42   The various matters identified may not have been enough individually to require exclusion of the first ERISP. However, I have reached the conclusion that, in combination, they do give rise to an overall irregularity in compliance with the statutory regime, as well as a serious concern as to whether the rights of the accused were properly protected.

43   I am satisfied that the various irregularities were not contumelious or deliberate, on the part of the detectives who, I observe, appear to have treated the accused courteously throughout. Rather, it seems to me that such failure to comply with the legislative regime arose from an inadequate understanding of those concerned, of the specific requirements of that regime, and of the importance of observing them.

44   There was no conduct on the part of the detectives that could be said to have been oppressive - or that would warrant the description of having involved any form of threat to the accused, or a knowing disobedience to the legislative regime, that was, in either case, designed to secure some advantage, or to extract admissions that would not otherwise have been forthcoming.

45   That is, however, not definitive of the point, since I have to weigh the nature and extent of the failure to comply, in the overall circumstances of the case, against the significance to the accused of the tender of the material.

46   There is no doubt whatsoever that the ERISP, if received into evidence, would constitute powerful evidence against him, almost certainly leading to his conviction for counts 3 and 4. There is, however, no reason to suppose that the truth of what was said was adversely affected by the circumstances outlined.

47   In those circumstances, neither section 84 nor section 85 of The Evidence Act require exclusion of the ERISP.

48 Although the balancing exercise which remains is not easy, I am of the view that, in combination, there were sufficient circumstances involving non compliance with the statutory regime, so as to give rise to serious concern as to whether the accused, a 17 year old with a somewhat disturbed background, had been sufficiently advised as to his rights, and as to whether those rights were adequately protected, to require exclusion of the evidence under section 90, and also section 138, of The Evidence Act.

49   In that regard I take into account the fact that he had a background of drug addiction, that he was separated from his parents, and that he had a limited education and capacity to read English. I also take into account the fact, it would seem, that he had used drugs within the 24 hours preceding the interview, a period during which he had allegedly been involved in two separate instances of serious criminality, and which was likely as a consequence, to have been a somewhat turbulent period for him.

50   The support person, as I observed, who had been chosen by the police, was himself young, and his ability to understand English and his understanding of his role were not adequately established. Moreover, it is not entirely clear that the accused understood the seriousness of his own position, in view of his question, at one point in the interview, as to whether or not he could go home. In all those circumstances, I am of the view that this interview should not be received into evidence.

51   I turn to the second ERISP, the position in relation to which is complicated by the absence from the witness box of former Senior Sergeants Erickson and Kinross and hence the absence of any evidence concerning the extent to which they gave the necessary advice to the accused, and also of Mr Blackburn, as to precisely what occurred, and as to his understanding of the role that he was to perform.

52   The matters of specific concern that arise relate to the following:

a) The accused was already in custody in relation to the offences the subject of counts 3 and 4;
b) None of his relatives were contacted when he was taken to Gosford Police Station, and it would seem that he was given no opportunity to nominate or to contact a support person of his own choosing, the selection of a Salvation Army Officer, who was quite unknown to the accused and unfamiliar with the case, being made by investigating police of their own motion;
c) There is no affirmative evidence as to whether or not the accused was properly advised as to his rights to contact a support person or a legal adviser;
d) There is no evidence as to whether or not the Salvation Army Officer was given the information required by regulation 26, or whether he was informed of the nature and seriousness of the matters under investigation;
e) The Salvation Army Officer was not given any opportunity to speak privately with the accused, or to investigate whether he needed any further assistance or advice;
f) The investigation followed upon the earlier ERISP, at a time when the accused could only have assumed - if properly advised - that there was at least some risk of any further admission contained in it being available for use against him in relation to the murder count. Even though this was at a time when he had secured legal representation in relation to that charge;
g) Despite those circumstances, no effort was made to identify or to contact the solicitor who had acted previously for him, or a duty solicitor, even though it may be assumed that one would have been on hand at Gosford, having regard to the time of day that this interview took place.

53   Had legal assistance been provided, it is almost certain that the accused would have had drawn to his attention the undesirability of participating in any further interview, that might implicate himself not only for the new offences, but might, also by reason of their interconnection with the remaining offences, significantly enhance the prosecution case in relation to those charges.

54   In this regard I observe that the undesirability of police re-interviewing persons already charged with an offence, for the purpose of gaining further information concerning that offence, remains unchanged. It was previously a matter taken up in the police instructions. The reasons for the undesirability of any such post charge interview are obvious, save of course for the important exception in a case where an accused voluntarily approaches police with a view to supplying fresh information, particularly if that is intended to be exculpatory or explanatory of anything which might have been obtained from a prior interview.

55   As I have already observed, ultimately no submission was pursued to the effect that when interviewed on this occasion the accused was affected by drugs, or suffering from drug withdrawal symptoms, or from the effects of any withdrawal treatment programme. I am satisfied that no such question arises for consideration.

56   The difficulty that I see in relation to this interview is that it needs to be considered, in a practical sense in the light of the preceding interview, and in the light of the virtual absence of any assistance being provided to the accused in relation to his rights on this occasion.

57   Neither the Governor of Kariong, nor the Salvation Army Officer appear to have done anything positively to advise him to secure legal representation, or to notify his family. The contribution of the custody manager and of Senior Sergeant Erickson remains unventilated, for reasons which are admittedly beyond the control of the Crown.

58   Nevertheless, the onus remains on the Crown to satisfy me as to the admissibility of the evidence. Again, I am not persuaded that any failure to comply with the regime was contumelious or deliberately designed to secure an unfair advantage, or oppressive.

59   Neither section 84 or section 85 of The Evidence Act was therefore attracted. However, taking into account the provisions of sections 90 and 138, I would exclude the evidence, since I am of the view that the apparent failure of those concerned to secure compliance with the regime gives rise to an unfairness, and outweighs the probative value of the admissions obtained, powerful as they might have been.

60   I observe that the present is very much a case on its own special facts. It does, however, point to the need for custody managers to provide a contemporary statement of what occurred in relation to each case in which they become involved, and not merely to rely at some later date, when an issue arises, on computer generated or standard summary forms which, in many instances, require little more than a tick or cross in a box. If left until an issue arises, it is unlikely that these documents will be sufficient to refresh the custody manager as to precisely what was said or done.

61   Wherever possible it would be highly prudent for custody managers to record by audio or video tape, their conversations with an accused, and with his or her support person in those circumstances where an interview occurs or investigative procedures are undertaken during a detention period. Preferably this should occur in all such cases but certainly it should be done in those involving serious offences.

62   Moreover, it is important for investigating police to give full effect to the legislative regime now in force, and to ensure that not only do they understand and comply with it, but also to see that the custody manager does what is expected of him or her. Had contemporary records been kept or statements prepared concerning the relevant dealings with the accused and with the support persons, it may well have been the case that some of the matters, identified as problems in this case, would have been answered.

63   Additionally, I observe that police should not automatically assume that their obligations under the legislation, can be met by a rote reading of the requisite cautions and advice, or by the handing over of printed forms for an accused to read for himself or herself. Nor should they assume that compliance can be proved by the securing of a simple signature or initial on the custody management report. There is a positive obligation, under the legislation, to ensure that a child or vulnerable person can understand what is being said - for example see regulation 29. That may extend to satisfying themselves that he or she can speak English or can read. Moreover, the regulations give rise to a positive obligation to assist a vulnerable person in exercising his or her rights - see regulation 20.

64   The final observation that needs to be made, in this context, is that the onus of proving compliance with the legislative regime rests upon the Crown. That means that it will need to have the necessary evidence available, if an issue is taken up in relation to the interview of a child as well as in relation to all other accused who are interviewed or subjected to forensic tests in circumstances attracting the legislation. Unless police secure that evidence, then it may well be necessary, as in this case it was, for the evidence to be excluded.

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Last Modified: 05/16/2001