R v S

[2004] QDC 223

28072004 D.2 T4-5/KLW M/T TSVDC1/2004 (Wall DCJ)

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CHILDRENS COURT OF QUEENSLAND

CITATION:	R v S [2004] QDC 223	10
PARTIES:	THE QUEEN
Against
S., A.L.
FILE NO:	CC 3 / 04
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PROCEEDINGS:	Trial – voir dire.
DELIVERED ON:	28 July 2004
DELIVERED AT:	Townsville
HEARING DATES:	27 & 28 July 2004
JUDGE:	CF Wall QC
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RULING:	Evidence Admissible.
CATCHWORDS:	CRIMINAL LAW – EVIDENCE – VOIR DIRE - admissibility – police interview with child – role of parent at interview – relevance to voluntariness and discretion to exclude interview.
Case referred to: The Queen –v- C (1997) 2 Qd R 465 (FAA)
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Legislation referred to: Juvenile Justice Act s. 29(1) Police Powers and Responsibilities Act s. 252
COUNSEL:	Mr M. Hibble for the Crown Mr E. Basset for the Defendant
SOLICITORS:	Queensland Director of Public Prosecutions for the Crown
Savage and Stout for the Defendant	50
28072004 D.2 T4-5/KLW M/T TSVDC1/2004 (Wall DCJ)	REVISED COPIES ISSUED	1

State Reporting Bureau

Date: 29 July, 2004

THE CHILDRENS COURT OF QUEENSLAND

JUDGE C F WALL QC

Indictment No CC3 of 2004	10
THE QUEEN v. S
TOWNSVILLE	20
..DATE 28/07/2004 28072004 D.2 T4-5/KLW M/T TSVDC1/2004 (Wall DCJ)

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HIS HONOUR: Objection is taken to the admissibility of the record of the interview between Sergeant Plasto and the defendant, then aged 15, at the Townsville Police Station on the 1st of August 2003.

Reliance has been placed on section 29(1) of the Juvenile Justice Act, which so far is

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as relevant provides that a Court must not admit into evidence against the defendant,
a statement made or given to a police officer by the defendant, unless the Court is
satisfied, a support person was present with the child at the time and place the

statement was made or given.

Reliance is also placed on section 252 of the Police Powers and Responsibilities Act	20
which so far is as relevant provides that a police officer must not question a child unless before questioning starts the police officer has, if practicable, allowed the child to speak to a support person chosen by the child and a support person is present while the child is being questioned.
The father of the defendant, DS, was present during the interview. The interview was	30
preceded by some telephone conversations between Sergeant Plasto and the defendant and her father and details of those are contained in the evidence of Sergeant Plasto.
The last phone call was on the 24th of July when a new appointment was made for
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Sergeant Plasto to interview the defendant on the 1st of August. On that date both attended the Townsville Police Station for the interview. The interview started just minutes after they arrived so in one sense, certainly immediately before questioning
started, Sergeant Plasto did not allow the child to speak to her father. However, she
had 10 days or so to do that and I do not think section 252(2)(a) should be
interpreted that narrowly in the circumstances.	50
28072004 D.2 T4-5/KLW M/T TSVDC1/2004 (Wall DCJ)

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In dealing with the role of an independent person, the Court of Appeal in The Queen
v. C (1997) 2 Qd.R. 465, which was a decision on what is now section 29 of the

Juvenile Justice Act, said:

"There is no sufficient reason for implying qualifications into the categories of

adult persons who must be present by reference to the competency of that	10
person or his or her capacity to provide useful advice or assistance to the child. Any defect or deficiency in the role played by the adult person present who obviously is intended to support the child, falls for consideration in the exercise of a Court's general discretionary power to exclude confessional evidence in a criminal proceeding."

The effect of that decision is that section 29 of the Juvenile Justice Act and section

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252 of the Police Powers and Responsibilities Act do not require that Mr DS, the
defendant's father, be a competent, informed, knowledgeable, wise, legally astute,

able or an interview-smart person.

Matters such as that are involved in the exercise of the discretion.

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I am satisfied that the Crown has established that the defendant spoke voluntarily to

the police in the sense that she was not overborne and was speaking in the exercise

of a free choice to speak or remain silent. I have looked at the video of the interview.

The child appeared relatively comfortable and her statements appeared to flow in a

relatively uninhibited manner. The questions asked could not be said to be

inappropriately expressed or worded or forceful or in the nature of cross-examination.	40
So far as this issue is concerned, I cannot assume in the absence of evidence, that Mr DS did not know what was going to happen or what would happen or what was happening, and was not as a parent, able to look after the interests of his daughter.
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The defendant, on the video, gives no appearance of being overborne by the interview situation or the police station environment or by her father. 28072004 D.2 T4-5/KLW M/T TSVDC1/2004 (Wall DCJ)

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So far as the exercise of the discretion is concerned, the onus is on the defendant.
No evidence from her was given and no evidence was called by her father.

Whilst I may have some slight disquiet about the initial interview format and structure for the reasons advanced by Mr Bassett, I am not however satisfied that there exists

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a sufficient basis to exercise the discretion to exclude the evidence. I cannot assume
or speculate that in the 10 days preceding the interview, Mr DS had not become
aware of what his and the defendant's rights and responsibilities were in relation to

the interview.

The initial questions asked are not, I consider, a sufficient basis for exercising the	20
discretion to exclude the evidence.
Notwithstanding that Sergeant Plasto may have given the impression that regardless
of what the child's view was, he was going to interview her, it would, I think, be
speculating to find that her father did not know what his or her rights were in relation
to the interview, more so in the absence of evidence from the defendant and her	30
father.
In all of the circumstances, I do not think a sufficient basis has been established to warrant me exercising the discretion to exclude the evidence. For these reasons I am not prepared to exclude the interview.
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