R v Wiley
[2007] QDC 183
•22 June 2007
DISTRICT COURT OF QUEENSLAND
CITATION:
R v Wiley [2007] QDC 183
PARTIES:
THE QUEEN
V
JAMIE LEE WILEY
FILE NO/S:
2969/06
DIVISION:
Criminal
PROCEEDING:
Application pursuant to s 590AA Criminal Code
ORIGINATING COURT:
District Court, Brisbane
DELIVERED ON:
22 June 2007
DELIVERED AT:
Brisbane
HEARING DATE:
JUDGE:
Nase DCJ
ORDER:
CATCHWORDS:
COUNSEL:
Mr P. Richards for the accused
Mrs C. J. McAnally for the Crown
SOLICITORS:
Volk Lawyers for the accused
Office of the Director of Public Prosecutions for the Crown
Introduction
Jamie Lee Wiley is a young aboriginal. She turned 17 on 27 September 2005. Two weeks after her 17th birthday she was arrested for an assault at Southbank.
Immediately before her arrest she was one of a group of about 10 young aboriginals walking towards Southbank along a boardwalk adjacent to the State Library. The group were sighted by police on foot patrol at 8.52 pm. The police were looking for two aboriginal girls who had assaulted two young women employed at the “Café Lavazza” at the Queensland Performing Arts Centre and stolen a packet of cigarettes from one of them.
The assault occurred shortly before 8 pm (approximately 7.50 pm) on 11 October 2005. What happened is that a young aboriginal girl (said to be Jamie Wiley’s younger sister) approached a group of workers from the café relaxing on a short meal break. The group declined to give her a cigarette. The request for a cigarette ended in the girl striking the first complainant. Someone else present (the second complainant) intervened and a person, said to be Wiley, then struck the second complainant around the back of the head with her hand. This person then seized a packet of cigarettes belonging to the first complainant, which by this stage were lying on the ground, and ran away.
When the police first approached the group of young people, some of the group ran from the police. One of the police officers had a short conversation with Jamie Wiley, and when she refused to accompany him to the West End police station, arrested her.
The arrest at that point was authorised by s 365 of the Police Powers and Responsibilities Act 2000. This section authorises the arrest, for the purposes of questioning, of any person reasonably suspected of committing an indictable offence. Jamie Wiley was handcuffed when arrested. Her younger sister was also handcuffed and taken into police custody. Wiley was handcuffed because she resisted being taken to the police station and objected to being separated from her younger sister. The police officer said he was apprehensive she might hit him.
Before the arrest a very brief exchange occurred between the police officer and Wiley. The prosecution say in that conversation Wiley admitted striking “the white bitch”. The admission is not in terms related to the assault on the first or second complainant, and is not sufficient evidence of Wiley’s involvement in the assault charged, if considered in isolation from two later interrogations carried out by the police.
The Issues
The application before me is to exclude the two formal police interrogations on the ground of unfairness. The exercise of the unfairness discretion requires a close examination of the circumstances of each interview. As Wiley made admissions during both interrogations, some substantial reason for excluding each interrogation must be shown.
The West End interrogation
The first of the formal interrogations was conducted after Jamie Wiley was restrained and transported to the West End police station. The tape‑recording of the interview at the police station shows that it commenced at 9.38 pm, and concluded at 9.47 pm. At the time of the interrogation, Jamie Wiley was under arrest for questioning.
One can infer her state of mind at the time of this interview from her statements:
“CONST LOUW: Do you want me to call your Mum?
WILEY: She’s a dog. She’s a dog hey. Hope she dies. Hope she dies. She’s a dog.
CONST LOUW: You don’t want me to call your Mum?
WILEY: She kicked me out of my own house. She kicked me out. My baby sister is 12 years old and she ran away from home. See that’s how big of a dog she’s been.
CONST LOUW: OK listen Jamie-
WILEY: She kicked me out and now I’ve got no home to go to so don’t tell me Fuck’-
CONST LOUW: Listen Jamie Lee I’m just going to give you a right to silence caution OK.
WILEY: I want my sister.
CONST LOUW: Listen to me, you’ve got the right to remain silence. This means you do not have to say anything-
WILEY: I don’t’ give a fuck about nothing. I want my sister. I’m a homeless black Abo cunt who can… I’m homeless.
CONST LOUW: I’m going to give you a right to silence caution.
WILEY: I want my-
CONST LOUW: OK Jamie just listen. Will you just listen.
WILEY: No no no no.
CONST LOUW: I am going to give Aboriginal Legal Aid a call as well.
WILEY: Fuck them. [indistinct].
CONST LOUW: You don’t’ want me to give them a call?
WILEY: I want my sister.
CONST LOUW: Yeah she’s at the watch house at the moment.
WILEY: Well I want to go there then. I don’t give a fuck.
CONST LOUW: OK listen. You’ve got the right to remain silent. This means that you don’t’ have to say anything answer any questions or make any statements unless you wish to do so. If you do say anything answer any questions or make any statement this may be used as evidence. Do you understand that caution Jamie Lee?
WILEY: Well, I got kicked out of home, my fucking house, my baby sister is 12 years old, she ran away form home. My baby sister, I don’t give a fuck, I want my sister.
CONST LOUW: But do you understand that caution I gave you?
WILEY: Yes.
CONST LOUW: What does it mean to you?
WILEY: I have got the right to remain silent, whatever, whatever, whatever.
CONST LOUW: So you know that you don’t have to talk to us if you don’t want to?
WILEY: I want my sister.
CONST LOUW: You know you don’t have to talk to us if you don’t want?
WILEY: Well can I tell you something, I don’t give a fuck cause I’m homeless. I don’t care.
CONST LOUW: You’ve also got the right to contact a friend or a relative and to have that person be present. You also have the right to contact and speak to a solicitor of your choice and to have that person present OK?
WILEY: I’ve got no Fuckin’ solicitor, I’ve got no friends, I’m a homeless cunt.”
…………………………..
“CONST LOUW: So you are still drunk now?
WILEY: Well durr. What do you think?
CONST LOUW: Well I don’t know I’m asking you.
WILEY: Aah well I’m still drunk if you didn’t know.
CONST LOUW: Do you understand what’s happening here now?
WILEY: Yes I’m in a fuck’ police station for questioning.
CONST LOUW: Do you want to, do you want me to phone anybody, aboriginal Legal Aid or your Mum or anything, anyone that I can get hold of like that? Maybe I can get hold of your Mum?
WILEY: My Mum doesn’t give a fuck about me. She kicked me out. What’s today? Tuesday hey? Yeah she kicked me out yesterday morning because I’m a slut, so… My aunt..
CONST LOUW: How much have you been drinking today?
WILEY: Too much, too much for me to answer.”
The police officer said Jamie Wiley was obviously intoxicated. They presumed from the consumption of alcohol, but she may also have been affected by the ingestion of other chemicals, as her sister was holding a can of paint in one hand at the time of the incident. From her statements she was in an unstable state of mind, distressed at her own predicament (homeless) and at being unable to protect her younger sister, who was only 12 years of age, and who had been taken away by the police.
Discussion of the West End interrogation
The Police Powers and Responsibilities Act 2000, while equipping the police with the power to arrest for the purpose of questioning any person reasonably suspected of having committed an offence, also attaches to the exercise of that power the obligation to comply with a set of statutory safeguards when questioning persons held in police custody.
In this case, the relevant obligations were to defer any questioning until satisfied the influence of alcohol or drugs on Wiley no longer affected her ability to understand and exercise her rights and to decide whether or not to answer questions (s 423(2)). The questioning at the police station took place in breach of this requirement.
As Jamie Wiley is aboriginal, the police were under an obligation to arrange, or attempt to arrange, for a lawyer to be present during any questioning, and to allow her to speak to a support person before being questioned (s 420(2), (4)). The obligation to contact the Aboriginal Legal Aid Office[1] does not apply if the police officer “reasonably suspects” the person is not at a disadvantage when dealing with the police “in comparison with members of the Australian community generally” (s 420(3)), or, in the case of a support person, if the suspect has waived his or her right to a support person (s 420(5)).
[1]The obligation in the section is to contact “a representative of a legal aid organisation”, but for the purposes of this judgment I will sometimes refer to an obligation to contact the Aboriginal Legal Service.
No serious attempt was made by the police who took Jamie Wiley into custody to arrange for legal representation or for a support person to be present.
The only attempt to obtain a support person occurred when one of the police officers spoke to Wiley’s aunt by telephone. The aunt unfortunately had no means of attending at the West End police station at that time of night.
The watch house interrogation
The arresting police officer was due to cease duty at 10pm. The responsibility for Wiley’s continued detention was taken over by two constables (Foo and Walker) who commenced duty at 10 pm. On the basis of the short exchange at the scene, and the interview at the West End police station, Foo and Walker transported Wiley to the City Watchhouse, where she was formally charged. After the charging procedure she was lodged in a cell.
At some point in the process the police decided to reinterview Wiley at a time when she was not obviously affected by alcohol. Presumably the police realised the West End interview was compromised because of Wiley’s condition. A second interview took place at the Brisbane City Watchhouse at 2.17 am (2.17 am to 2.37 am). By that time Wiley had been in police custody for a little over five hours.
Up to the time of the Watchhouse interrogation, no attempt was made to contact the Aboriginal Legal Service, or to contact a support person (apart from the phone call to the aunt). During this period of time she was interrogated while distressed and affected by alcohol, transported to the City Watchhouse, charged, and then lodged in a cell. Over the entire period of time from the initial arrest she had possibly been given 1 drink of water and allowed 1 visit to the toilet. At approximately 2.15 pm she was brought into an interview room for a second interrogation.
At the outset of this interrogation, a formal caution was administered to Jamie, and she was asked whether she understood it. To that question she replied “I don’t have to say anything unless I am supposed to.” The meaning of her words “I don’t have to say anything unless I am supposed to” is not immediately clear, but whatever their meaning, the words are not a simple confirmation that at the commencement of the interview she understood and felt able to exercise her right to silence.
Jamie Wiley was told in a single lengthy statement that she was entitled to telephone or speak to a friend or relative and arrange or attempt to arrange for that person to be present, and that she had the opportunity to telephone or speak to a lawyer of her choice and arrange or attempt to arrange for that person to be present. The interviewing Police Officer then reminded her that contact had earlier been made with her aunt. Jamie responded by saying she didn’t want her aunt to be present because her aunt by that time would be asleep. Then she was asked “Do you feel alright to go on with it yourself? Yeah? Okay?” To which she said “Yeah”. Listening to the tape of the interview there are pauses between the first “Yeah” the “Okay” and Wiley’s reply “Yeah”. Her “Yeah” was an acknowledgement she was (physically) capable of participating in the interview.
Discussion and analysis
The Police Powers and Responsibilities Act 2000, however, casts the obligation on a police officer who intends to question an aboriginal person “to notify or attempt to notify a representative of a legal aid organisation” as soon as “reasonably practicable” (s 420(2)(b)). The prosecution accept that no attempt was made over the period of five hours to notify the Aboriginal Legal Service.
Jamie Wiley made admissions during both the West End interview and the later City Watchhouse interview.
The various requirements in the Police Powers and Responsibilities Act 2000 are intended to be taken seriously, and breach of a statutory safeguard may result in the exclusion of a relevant interview.
In this case, Jamie Wiley did not want to leave her younger sister and had to be physically restrained when taken into custody. She had turned 17 only two weeks earlier,[2] and her relatively young age is a relevant consideration when considering the breaches in this case. She was obviously distressed both at her own situation of homelessness, and at the fact she was, once taken into custody, unable to protect her 12 year old sister, who like her, was homeless and at risk. She was also adversely affected by alcohol or drugs.
[2]In any other State or Territory in Australia Jamie Wiley would be treated as a child, reflecting internationally accepted standards, and following the entry into force in Australia (16January 1991) of the Convention on the Rights of Children (New York, 20 November 1989).
In conducting the interview at the West End police station, the specific prohibition on interviewing intoxicated persons (s 423(2)) was ignored, as was the requirement to notify “a representative of a legal aid organisation (s 420(2)). As there was no particular urgency about conducting an interview, it should have been deferred and appropriate persons contacted. This interview should be excluded: it was conducted in breach of the statutory safeguards in the Police Powers and Responsibilities Act 2000, and I doubt her admissions were freely and voluntarily given, rather, I think the exercise of her right to silence was compromised and it would be unfair in all the circumstances[3] to use her statements against her.
[3]The relevant circumstances are:
1.Her age. In part because of her age she was not on equal terms with the police.
2. She was at the police station against her will, having been transported there handcuffed.
3. Her emotional distress.
4. Her state of intoxication. The combination of intoxication and emotional distress compromised her ability to think clearly and consistently or exercise her right to silence.
5. And finally the breaches of the statutory safeguards: the power of arrest for questioning carries with it the obligation to observe the safeguards in the Act.
The West End interview in turn taints the Watchhouse interview. At the time the Watchhouse interview was conducted, Jamie Wiley had been held in custody for approximately five hours (and for most of that time in a cell), although no longer outwardly unstable she was nonetheless a young and vulnerable person. She had been formally charged with a serious offence; and had, in the West End interview, effectively surrendered her right to silence. The failure to take any steps to contact the Aboriginal Legal Service, and other appropriate persons merely compounds all the other circumstances. I am satisfied it would be unfair to use any admissions against her made during the Watchhouse interview.
Reconsideration of the prosecutor’s argument
I have not so far referred to the argument that the obligation to contact the Aboriginal Legal Service did not apply to her as she was not at a disadvantage in comparison to a member of the Australian public.
In argument it was submitted the requirement to notify the Aboriginal Legal Service was simply overlooked by the police, perhaps as a consequence, it was implied, of a miscommunication when the handover to the police officers Foo and Walker occurred. As a fallback position it was submitted the obligation to notify did not arise because Jamie Wiley was not “disadvantaged in comparison with the Australian community generally”.
The evidence does not reveal the reason the various police officers overlooked the obligation to notify the Aboriginal Legal Aid Service. In the Watchhouse interview police officer Foo told Wiley in his formal introductory remarks that she had the “opportunity” to telephone or speak to a lawyer of her choice. In describing the requirement in terms of “an opportunity” for Wiley he misstated the requirement, which was an obligation on him to notify.
The obligation to notify does not arise if a police officer suspects (reasonably) that the suspect is not at a disadvantage in comparison with members of the Australian community generally (s 420(3)). This subsection, which has the potential to negate the requirement in many cases, led Mrs McAnally to submit that Jamie Wiley was not at a disadvantage in comparison with the community generally. I agree that her “level of education and understanding” did not place her in a position of disadvantage, but her age in the circumstances[4] did make it unfair to use her statements against her when interviewed at West End, and that interview in turn compromised the Watchhouse interview.
[4]See note 3.
Order
In the result, I exclude from evidence the interview conducted at the West End police station on 11 October 2006, and the interview conducted at the City Watchhouse on 12 October 2006.
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