R v T & M; Ex Parte Attorney-General
[1997] QCA 231
•1 August 1997
[1997] QCA 231
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
C.A. No. 239 of 1996
Brisbane
BeforeFitzgerald P.
Davies J.A.
Fryberg J.
[R. v. T and M; ex p. A-G]
THE QUEEN
v.
T
and
M
Respondents
REFERENCE BY ATTORNEY-GENERAL OF QUEENSLAND
UNDER SECTION 669A OF THE CRIMINAL CODE
Fitzgerald P.
Davies J.A.
Fryberg J.
Judgment delivered 1 August 1997
Separate reasons for judgment of each member of the Court; Davies J.A. and Fryberg J. concurring as to the orders made, Fitzgerald P. dissenting in part.
THE QUESTIONS ASKED ARE ANSWERED:
NO.
NO.
NO.
CATCHWORDS: CRIMINAL LAW - Attorney-General’s reference - juvenile offenders - respondents made incriminating admissions in course of secretly taped conversation with friend - trial judge excluded evidence of admissions - whether s.9E(1) Juvenile Justice Act 1992 applied and whether any conduct enlivened discretion to exclude on basis of unfairness.
Counsel:Mr P. Rutledge for the Attorney-General of Queensland.
Mrs D. Richards for the respondents.
Solicitors:Queensland Director of Public Prosecutions for the Attorney-General of Queensland.
Legal Aid Office (Qld.) for the respondents.
Hearing Date: 18 September 1996.
REASONS FOR JUDGMENT - FITZGERALD P.
Judgment delivered 1 August 1997
This is a reference by the Attorney-General under s. 669A of the Criminal Code.
T and M were jointly charged with one count of house-breaking and one count of stealing. At the time of the offences, each was 15 years of age. The only evidence available to incriminate either of them was that of R, a 17 year old who they believed to be a friend. R, who regularly drove T and M to work, was approached by detectives and agreed to secretly tape-record conversations in his car. In the course of conversations in the car on 10 February 1995, T and M implicated themselves in the offences. The prosecution case was entirely dependent on evidence which R could give of those conversations.
At the trial of T and M in the District Court at Ipswich, the trial judge excluded evidence of the statements which they had made which had been tape-recorded by R, and the prosecutor sought the return of the indictment and entered a nolle prosequi.
The following questions have been referred to the Court by the Attorney-General:
“1.Whether the term ‘police officer’ in Sub-section 36[1](1) of the Juvenile Justice Act 1992 includes a person acting under the direction of a police officer?
[1]Section 36 is now numbered s. 9E.
2.Was the learned trial judge correct in holding that Section 36 of the Juvenile Justice Act 1992 applied to the statements made by T and M to R on 10 February, 1995?
3.If Section 36(1) of the Juvenile Justice Act 1992 did not apply, was there any conduct on the part of the Police Officer which enlivened the discretion to exclude confessional evidence on the basis of unfairness to an accused?”
Counsel for M and T submitted that the first question should not be answered, because no argument was addressed to the trial judge that R came within the definition of “police officer” within the meaning of s. 9E of the Juvenile Justice Act. The primary argument for the exclusion of the evidence, which was said to relate only to the Attorney-General’s second question, was that the statements made by M and T were statements “made or given to a police officer” within the meaning of sub-s. 9E(1) of the Act because the language of sub-s. 9E(1) is wide enough to encompass a record of a statement obtained by another person on behalf of a police officer, at the instigation of the police officer and on equipment provided by the police officer. That might sometimes be so; for example, if a child who had committed an offence wrote out the details of his involvement and was induced to give a copy to a person thought to be a friend who was acting on behalf of police. However, this is not such a case, and it seems to me that it falls outside the literal operation of s. 9E.
However, in my opinion the third question should be answered in the affirmative. The prosecution submission that sub-s. 9E(1) is only concerned with the possibility that a child questioned by a police officer might be overborne (see sub-s. 4(a)), and hence is unconcerned with statements made by a child to a person who the child does not know is a police agent, is too simplistic. There is plainly an issue of fairness involved: sub-ss. 4(b) and (e)(i) and 9E(5) and R. v. Davidson (C.A. No. 203 of 1996, unreported, judgment delivered 20 December 1996). The policy of the Juvenile Justice Act is clearly material to the exercise of that discretion, and supports the trial judge’s decision. Sub-section 9E(1) manifests a broad legislative policy to exclude from children’s trials evidence of incriminating admissions except those obtained in accordance with s. 9E.
The questions asked should be answered:
No.
No.
Yes.
REASONS FOR JUDGMENT - DAVIES J.A.
Judgment delivered 1 August 1997
M and S were jointly charged with one count of housebreaking and one of stealing. The only evidence against them consisted of admissions made by them to R which, unknown to them, R had tape-recorded.
At the time of the offences M and T were both 15. At the time they made their recorded admissions to R, M was still 15 but T was then 16. They were therefore both at all material times children within the meaning of the Juvenile Justice Act 1992. R, who was a friend and who drove them to work, had agreed to a request by a police officer to secretly tape-record conversations with them in his car on the way to work. It was during the course of one of these conversations that the admissions were made.
The learned trial judge excluded this evidence on the basis that it was obtained in breach of s.36(1) (now s.9E(1)) of the Juvenile Justice Act. He went on to say that, had s.36(3) (now s.9E(3)) been invoked, he would still have exercised his discretion to exclude this evidence under s.130 of the Evidence Act 1977.
In the reference the Attorney asks the following questions.
1.Whether the term "police officer" in sub-s.36(1) of the Juvenile Justice Act 1992 includes a person acting under the direction of a police officer?
2.Was the learned trial judge correct in holding that s.36 of the Juvenile Justice Act 1992 applied to the statements made by T and M to R on 10 February 1995?
3.If s.36(1) of the Juvenile Justice Act 1992 did not apply, was there any conduct on the part of the police officer which enlivened the discretion to exclude confessional evidence on the basis of unfairness to an accused?
Section 36 was relevantly as follows:
"(1)In a proceeding for an indictable offence, a court must not admit into evidence against the defendant a statement made or given to a police officer by the defendant when a child, unless the court is satisfied that there was present at the time and place the statement was made or given, a person mentioned in subsection (2).
(2)The person required to be present is -
(a)a parent of the child; or
(b)a legal practitioner acting for the child; or
(c)a person acting for the child who is employed by an agency whose primary purpose is to provide legal services; or
(d)a justice of the peace other than -
(i) a justice of the peace who is a member of the Queensland Police Service; or
(ii) a justice of the peace (commissioner for declarations); or
(e)an adult nominated by the child.
(3)Subsection (1) does not apply if -
(a)the prosecution satisfies the court that there was proper and sufficient reason for the absence of a person mentioned in subsection (2) at the time the statement was made or given; and
(b)the court considers that, in the particular circumstances, the statement should be admitted into evidence.
(4)This section does not require that a police officer permit or cause to be present when a child makes or gives the statement a person whom the police officer suspects on reasonable grounds -
(a)is an accomplice of the child; or
(b)is, or is likely to become, an accessory after the fact;
in relation to the offence or another offence under investigation.
(5)This section does not limit the power of a court to exclude evidence from admission in a proceeding."
There is no possible basis for including within the meaning of "police officer" in that section a person acting under the direction of a police officer. The term is not defined in the Act, but should be given its ordinary meaning unless the context requires otherwise. Such an extension of its natural meaning is not justified either by its context or, to the extent that it can be ascertained, the intent of the section.
Nor can it be said, in my view, as was argued before this Court, that the section includes evidence of a statement because it is obtained by a person, other than a police officer, on behalf of a police officer and at his request. It may be accepted that the person making or giving the statement to a police officer need not know that the person to whom he is making or giving it is a police officer. But the ordinary sense of the phrase "make or give a statement to a person" is that the maker or giver intends to make or give the statement to that person, even though he or she may be uncertain as to the identity of that person. That is not this case.
Section 36 therefore had no application to this case and accordingly the learned trial Judge was, in my view, wrong in excluding the admissions on the basis on which he did. Questions 1 and 2 should therefore be answered "No".
The third question goes beyond the basis upon which the learned trial Judge exercised his discretion to exclude the evidence. It goes to the common law discretion to exclude evidence in a criminal trial on the basis of unfairness. But unfairness in this sense means that the reception of the evidence would be unfair to the accused in the sense of jeopardising his right to a fair trial.[2] The characteristic of evidence which will generally give rise to the exercise of this discretion will be its reliability.[3] But there may be cases where to admit confessional evidence would be unfair in this sense, not because it is unreliable, but because no confession might have been made if the investigation had been properly conducted.[4] Where that is so, as for example where an investigation which has been illegally conducted to the detriment of the accused has caused the accused to make a confession which he would not otherwise have made, the public policy discretion may also require exclusion of the evidence.[5]
[2]R. v. Lee (1950) 82 C.L.R. 133 at 150-1; Cleland v. R. (1982) 151 C.L.R. 1 at 18, 30; Van der Meer v. R. (1988) 62 A.L.J.R. 656 at 666.
[3]Lee at 153; Cleland at 30, 32, 36; Van der Meer at 666.
[4]Duke v. R. (1989) 180 C.L.R. 508 at 513.
[5]As in Pollard v. R. (1992) 176 C.L.R. 177 at 184, 197, 209, 224.
In the present case no question arose, or could have arisen, as to the reliability of this evidence. There was no illegal conduct on behalf of the police. And it could not be said, in my view, that there was any improper conduct on behalf of the police or that any conduct by them, proper or improper, caused the giving of this evidence. All the police asked R to do was to secretly tape-record conversations which occurred in his car, thus enhancing the reliability of any admissions made by either T or M in R’s presence. It was not and could not have been suggested that any conduct by the police caused the accused to make the incriminating admissions which they did.
At least where the evidence of such admissions is reliable no question can ever arise as to its exclusion on the basis of unfairness in the absence of evidence of illegal or, arguably, improper conduct by the police which causes it to be given. Absent such evidence, no question of the exercise of the unfairness discretion arose. Section 36(5) plainly envisaged that, except where the specific provisions of that section applied, the above principles would govern the exclusion of evidence on the ground of unfairness.
There being no conduct on the part of the police officer which enlivened the discretion to exclude the evidence on the basis of unfairness, I would therefore answer the third question "No". I should add that the discretion to exclude cannot be enlivened unless there are facts on which it can be exercised. A voluntary statement is admissible as a matter of law unless reason is shown for rejecting it in the exercise of discretion.[6] To the extent that a dictum in the joint judgment of the Chief Justice and Mackenzie J. in Davidson[7] appears to be to the contrary it is, in my view, with great respect, contrary to both principle and authority.[8]
[6]Lee at 153.
[7]R. v. Davidson C.A. No. 203 of 1996, 20 December 1996, at 10-11.
[8]Lee at 153, 154, 159.
REASONS FOR JUDGMENT - FRYBERG J.
Judgment delivered 1 August 1997
Questions one and two should be answered in the negative. I agree with the reasons advanced by Davies JA for that conclusion.
The third question arises almost by a side wind. Both accused were separately represented in the court below. Counsel for T did not submit to that court that the discretion to exclude on the ground of unfairness was enlivened. Counsel for M, at the very end of his submissions on the voir dire, said:
"Your Honour, I suppose just in addition to my learned friend if you were against us on s. 36, I would ask you to exclude the evidence in a discretionary course."
The evidence referred to by counsel was evidence of admissions made by the accused to the witness R. That was all he said. He did not identify which discretion was relied upon, nor did he point to any facts to support the exercise of the discretion. Neither accused called any evidence on the voir dire.
Counsel for the Crown then addressed His Honour. He dealt with s. 36 of the Juvenile Justice Act 1992. Then the following exchange occurred:
"MR CHOWDHURY: Under the general question of fairness, it may be that Your Honour may have to hear some evidence, may have to listen to the tape to consider whether, in all the circumstances, it would be fair to use against these accused. Perhaps I should call some evidence.
HIS HONOUR: Oh, I don't think I need to hear evidence, Mr Chowdhury.
MR CHOWDHURY: Thank you, Your Honour.
HIS HONOUR: No, no, no, we don't want to hear any evidence. There is no question of this being admitted, no question of it, and if you would like to sit down and listen, I will tell you why.
MR CHOWDHURY: Thank you, Your Honour."
His Honour then proceeded immediately to rule on the application. The Crown Prosecutor had no opportunity to make any further submissions and he did not attempt to make any. His Honour ruled evidence of the admissions inadmissible under s.36 of the Juvenile Justice Act 1992 and continued:
"Even if I thought - and I do not think - that section 36 had been complied with, I find as a question of law that section 36 is apposite to such a situation existing here. Even if I thought subsection (3) might be invoked and that the Crown had satisfied me under that section, I would still have exercised my discretion to exclude this evidence under the provisions of the Evidence Act, section 130.
Now, it is simply not on. We cannot have this sort of thing. That is not to say that people cannot be wired up. That is not to say that covert operations cannot take place. That is not to say that we cannot have videos in stores designed to catch offenders in the act. Of course we can do those things. Of course if people are wired up and information is forthcoming as to the perpetration of offences, information which does not amount to hearsay, then perhaps that could be admitted. You see, it is not a question of ruling out these practices; it is a question of deciding whether what is brought about by the employment of these measures is admissible in evidence. In this case, it is clearly inadmissible. If that is all there is to it, then you had better take steps."
That His Honour was dealing with the discretion to exclude evidence is apparent from his reference to s. 130 of the Evidence Act 1977[9]. As can be seen, His Honour drew no distinction between evidence by the tape recording and oral evidence of the admissions.
[9]"130. Nothing in this Act derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied that it would be unfair to the person charged to admit that evidence."
I have referred to these parts of the record to demonstrate two points. First, the Crown Prosecutor was stopped in his argument. It is true that he did not protest when it became clear that he had not been stopped because he had succeeded; but it is apparent that he was overborne. Second, evidence exists bearing upon the question of fairness.
Unfortunately, His Honour took no evidence on the voir dire. It is unclear what evidence he had before him, as the proceedings were by way of ex officio indictment. Presumably, His Honour had a statement made by R to police. Presumably that included the admissions which were objected to. Presumably it foreshadowed both the identification of the tape recording of the admissions and verification of them. Whether it included a transcript of the tape recording is unknown, although it is apparent from the record that His Honour did not listen to the tape recording. Whether His Honour had any indication of the circumstances in which the recording came to be made is unknown. What led His Honour to find (as he apparently did) that there had been a breach of due process and that the admissions were made "in an atmosphere of bravado, which is likely to prevail amongst three scallywag children" is unknown. We were told that R gave evidence at committal proceedings[10] that nothing was offered to him to tape record the conversations. If His Honour knew that, he made no reference to it. Whether R in fact received anything for his efforts is unknown. There was simply no investigation into the reliability of the admissions.
[10]The acting magistrate discharged the respondent after excluding the admissions because of s. 36 of the Juvenile Justice Act 1992.
The procedure adopted by counsel in the District Court was fundamentally flawed. If an application is to be made for the exclusion of evidence in the exercise of a judge's discretion, the evidence which it is sought to exclude should be clearly identified, and any factual matters relied upon to demonstrate unfairness should be put into evidence on the voir dire. The failure to follow that procedure now has two consequences. First, it is impossible to say what was before His Honour and what he took into account in reaching his decision. Second, it is impossible to know whether the point referred to in question three is one which "has arisen at the trial" within the meaning of s. 669A(2) of the Criminal Code.
In one sense, though, there is a short answer to question three. The judicial discretion to exclude the evidence in question could not have been enlivened in circumstances where the prosecution was not properly heard on the question and no evidence relevant to it was put before the judge. However that approach did not commend itself to the Attorney-General. No argument along those lines was addressed to us. In these circumstances it would not be right to provide a negative answer to question three on this basis.
To overcome the difficulty of demonstrating that question three is one which "has arisen at the trial", the Attorney-General included in the document making the reference eighteen paragraphs setting out not only the course of proceedings in the District Court but also the following:
"THE FACTS
5.At the time of the offences, T was 15 years of age, having been born on 22 December 1978, and M was also 15 years of age having been born on 8 July, 1979.
. . .
10.In February 1995, detectives from the Ipswich CIB suspected T and M of committing a number of street robberies. At the time they were working at AMH Meatworks at Dinmore. They were being driven to work each day by a 17 year old friend named R.
11.On 7 February 1995, Detectives BALL and MERLEHAN approached R. They asked if he would secretly tape record conversations in his car with T and M in the hope of obtaining information concerning the robbery of an elderly lady. R agreed to do so.
12.R gave evidence at the committal proceedings that nothing wasoffered to him to do so. (pp6-7)
13.On 10 February 1995, R duly collected both T and M. The tape recorder was activated and the conversations were recorded."
A full transcript of the tape recording was then set out. I doubt whether this course complies with Order 9 Rule 19A and Form 3B of the Criminal Practice Rules 1900; but nothing presently turns on that. Both parties conducted the reference as though these facts and the transcript had been before the District Court judge.
The reference is silent as to the other evidentiary issues referred to above. Having regard to the way in which the parties have conducted the proceedings, we must approach the question on the basis that there are no other facts or circumstances suggestive of unfairness.
The precise wording of question three should now be noticed. It is:
"3.If Section 36(1) of the Juvenile Justice Act 1992 did not apply, was there any conduct on the part of the Police Officer which enlivened the discretion to exclude confessional evidence on the basis of unfairness to an accused?"
The question does not ask simply whether the discretion to exclude evidence was enlivened. It asks whether there was any conduct on the part of "the Police Officer" which enlivened the discretion. On the material before us the only conduct by police officers was the approach made by Detectives Ball and Merlehan to R and their request that he secretly tape record conversations in his car with T and M in the hope of obtaining information concerning the robbery of an elderly lady. How can this conduct possibly cause the exclusion of R’s evidence of the conversation? The existence of the tape recorder did nothing to bring about the admissions of breaking and entering and stealing. Indeed, the existence of the tape would surely enhance the reliability of R’s evidence on the point. The purpose of the recording was to obtain information concerning the robbery of an elderly lady, a completely different offence. There is no suggestion that a police officer asked R to interrogate the respondents. They raised the subject of the breaking and entering, and to the extent that R then asked questions, they were not leading questions. I am quite unable to see how it could be said that the police officers did anything which enlivened the relevant discretion. For this reason, I would answer the third question, "No".
This does not mean that there might not have been circumstances which did enliven the discretion. We cannot express a view on that question because of the course the proceedings took below. We do not know the basis for His Honour's apparent conclusion that the admissions were made in an atmosphere of bravado likely to prevail among three scallywag children. That finding hints at a view that the admissions were unreliable, and that, on the existing authorities[11], is plainly a relevant consideration in the exercise of the discretion. Questions concerning the effect of the authorities and the ambit of the discretion are currently before the High Court[12]. In the circumstances it is unnecessary to consider them here. It is to be hoped that if the question of unfairness arises on any retrial, the judge will be assisted with submissions by counsel which are both more thoughtful and prepared, and more robust, than were those in this case.
[11]See R. v. Davidson, unreported, CA 203 of 1996, 20 December 1996, and the cases there cited.
[12]R. v. Swaffield, B61/1996, heard 24-25 June 1997.
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