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The Queen v S[2019] QCHC 1

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v S [2019] QChC 1

PARTIES:

The Queen

(Respondent)

v

S

(Applicant)

FILE NO/S:

14/18

DIVISION:

Criminal

PROCEEDING:

Pre-Trial Hearing

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED ON:

14 February 2019

DELIVERED AT:

Beenleigh

HEARING DATE:

23 October 2018 and 23 January 2019

JUDGE:

Chowdhury DCJ

ORDER:

Application granted

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – PRE-TRIAL HEARING – Confession – Admissibility – Voluntariness – Unfairness

Youth Justice Act 1992 (Qld), s 29

Police Powers and Responsibilities Act 2000 (Qld), ss 421, 428, 431

R v W & Ors [1988] 2 Qd R 308

R v C [1997] 2 Qd R 465

R v Phung and Huynh [2001] NSWSC 115

R v H (a child) (1996) 85 A Crim R 481

R v Tofilau (No. 2) (2006) 13 VR 28

R v Swaffield; R v Pavic (1997) 192 CLR 159

Van Der Meer v R (1988) 62 ALJR 656

COUNSEL:

J. Taylor for the Applicant

D. Kovac for the Respondent

SOLICITORS:

Aboriginal and Torres Strait Islander Service for the Applicant

Queensland Office of the Director of Public Prosecutions for the Respondent

  1. [1]
    The applicant is charged on indictment with three counts of endangering property by fire, three counts of being in premises and stealing and two counts of stealing. By way of application filed on 12 October 2018, the applicant seeks the following order:
  1. That the electronic record of interview between the applicant and Senior Constable John Sinclair and Senior Constable Deanna Geck dated 18 January 2017 be excluded as evidence.
  1. [2]
    The hearing of the application took place on 23 October 2018 and 23 January 2019.

Background to the interview

  1. [3]
    The applicant was born on 27 May 2006, and was ten years old at the time of the interview on 18 January 2017. Logan Hospital records relating to the applicant were filed in support of the application. At 12.29 am notes were compiled in the Logan Hospital records relating to the applicant that she had been seen at 12.06 am on 18 January 2017, having been brought in by ambulance after inhaling two cans of deodorant. The applicant had felt unwell after the inhalation, vomiting once. When the ambulance arrived she was drowsy but able to be roused. Her oxygen saturation was normal, as was her blood pressure.
  1. [4]
    The applicant told hospital staff that she lived in Ipswich with her mother and her mother’s partner, but had been staying with her aunt for the time being. Attempts were made to contact the mother on a mobile number given by the applicant, but the mother did not answer.
  1. [5]
    The applicant’s aunt, M, telephoned at about 8.00 am on 18 January 2017, advising that she would be able to pick up the applicant. The aunt was advised that the hospital needed someone to be at the hospital with the applicant.
  1. [6]
    The applicant advised hospital staff that she had no plans to inhale deodorants again. She said that she lived with her mother in Goodna, but for the time being was staying with M and had been there for the last two weeks. She said she wanted to stay with her aunt because “it’s more fun”. Hospital staff then discussed the applicant with a social worker and child protection liaison officer.
  1. [7]
    In a note created by hospital staff member Sarah Cosgrove at 10.09 am on 18 January 2017, the hospital had received a phone call from Tony Fheehan who advised that Queensland Police Service (‘QPS’) were currently in attendance at M’s house. He advised that police would send a unit to the hospital to interview the applicant in relation to some recent criminal activity. The hospital staff member asked if Mr Fheehan could provide information about the safety of the applicant staying at M’s house. He replied he was unable to do so as police units were still present at the house.
  1. [8]
    The next note by Ms Cosgrove is at 10.34 am and reads as follows:

Notified by Nicola (CPLO) that QPS will attend to take PT to pre-arranged appointment.  Advised that this is with consent from necessary parents/guardian.  SW also aware and happy with plan.

Detectives attended and introduced to PT.  D/C into their care.  Pt happy to comply with this.  Child safety report to be completed.

ID – Detective badges sighted on their arrival.

  1. [9]
    The social work notes from the Logan Hospital relating to this admission refer to ‘NP (Sarah)’, which I infer to be Sarah Cosgrove, who was identified elsewhere as a nurse practitioner.
  1. [10]
    At the conclusion of the social work notes, the following is recorded:

Recommendation:D/C plan involved QPS who collected young person – NP in attendance at pickup, and sighted ID prior to discharging minor into their care (NP unable to contact SW at time).  Vulnerable ++ young person known to both QPS and CS.[1]  QH[2]to provide CS info.  Re presentation via professional CS report.

Plan: Pt D/C’d, complete with SW, professional report submitted with copy and chart and to CPQ.

  1. [11]
    None of the hospital staff were required to give evidence at the hearing. No objection was taken to me considering the medical records. The only rational inference that can be concluded from the medical records is that M did not arrive at the hospital to visit the applicant, before she was taken into police custody.
  1. [12]
    I was also requested to consider subpoenaed documents from the Department of Education relating to the applicant’s schooling at Ipswich North State School. Again, there was no objection from either party to me considering the records. There are numerous behavioural issues identified in the records. The applicant’s attendance at school was poor, and her school results were also poor. On her report for semester 1 2017, in grade six, it was observed that the applicant was a capable student but lacked self-belief. It was observed that she needed to put in the required effort to achieve academic success, and that she needed to participate more effectively in class.
  1. [13]
    There is nothing in the school records which indicated that the applicant had any intellectual disability. In fact, the report for semester 2 in 2017 showed an improvement in her academic results, as well as an improvement in her attitude to attendance, punctuality, and her overall attitude to school.
  1. [14]
    The principal interviewing officer, John Sinclair, provided a statement dated 27 February 2017 which briefly states that he and Detective Senior Constable Geck interviewed the applicant on 18 January 2017 with her Aunt M present as a responsible person. For the purposes of the application the prosecution obtained an addendum statement from Senior Constable Sinclair, dated 22 October 2018. Between [5]-[10] Sinclair stated the following:
  • On 18 January 2017 the applicant had come into police custody voluntarily and attended Logan Central Police Station in company with her Aunt M, born 16 November 1979.
  • The applicant had previously been located by police at Logan Community Hospital with her Aunt M.  Due to the applicant’s cooperation and with the assistance of M the applicant attended Logan Central Police Station voluntarily as she had several matters outstanding that police needed to speak to her about.
  • He examined the Queensland Police Information and Records Exchange (‘QPRIME’) and located an entry for the applicant’s father C.  He was unable to be located.  He located the applicant’s mother H on QPRIME, and he recalled that H said she was unable to attend the police station as she was in Ipswich and was happy for M to represent the applicant’s interests.  The applicant was also happy to have M present as her support person.
  • He explained to M that he wanted to interview the applicant in relation to the investigation.  He recalled M said something like ‘that’s okay’.  He was aware that M had discussed the reason why the applicant was at the police station with the applicant.
  • Prior to the interview he gave M a ‘Form 36 Notice of Information for Support Persons about their Role’.  That form outlined information for the support person about their role, essentially outlining their rights and responsibilities.
  • The electronically recorded interview commenced in an upstairs interview room at Logan Central Police Station.  Prior to that commencing M had been left alone with the applicant to discuss the interview process and any concerns the applicant may have had.
  1. [15]
    At [17]-[18] of the addendum statement, Sinclair stated that he examined QPRIME and observed that the applicant had previously been cautioned by the Inala Child Protection and Investigation Unit in relation to six charges of shop stealing and one charge of wilful damage, and that she had been formerly cautioned under the Youth Justice Act 1992.

The interview

  1. [16]
    Following the first day of hearing, I watched the interview between Sinclair, Geck and the applicant, which was recorded on DVD. I also had a transcript of that interview, which was part of the material before me.[3]
  1. [17]
    At the commencement of the interview Sinclair refers to the investigation, relating to endangering particular property by fire and entering premises and committing indictable offences. He asks the applicant if she knew what that means. The applicant says ‘yeah’, but when asked further if she knew what that meant, she said ‘no’. M then explains to the applicant what it means, ‘it means – that you got – [indistinct] you lit like in public you don’t light fires and [indistinct] okay’.  At this point M is looking at the applicant in a stern manner.[4]
  1. [18]
    Sinclair asks the applicant if she had come down to the police station of her own freewill, asking ‘you, you, you didn’t have to be arrested or anything?’. The applicant does not answer, but M does, saying:

[nodding her head] no, I get, I got um I was at sister’s house and kept getting [indistinct] to come and [indistinct] so yeah.  ‘Cause I’ve been like at home [indistinct] a police car come, another police car come like… you know.

  1. [19]
    Senior Constable Geck then asks the applicant if she remembered that she was at the hospital today, and if she was happy to come with us back to the police station. Geck states that the applicant said that she was, asking ‘so do you agree that you are here of your own free will? So you’re here because you want to be here, not because we had to, you know, arrest you or force you to come here? Is that right?’. The applicant slightly nods her head, and says softly ‘yeah. Yes.’[5]
  1. [20]
    The following exchange then took place:

Sinclair:  Before I ask you any questions, I must tell you, you’ve got the right to remain silent. That means you do not have to say anything or answer any question or make a statement unless you wish to do so. If you do say something or make a statement, it may later be used as evidence. Does it, does any of that make sense to you?

Applicant: Yes.

Sinclair:  Wh – , tell, what do you think it means?

Applicant: Um – – [at this point the applicant is looking downcast].

Sinclair:  You’d, alright. So, so you know like here today, we’re here today, we’re here to talk about the fires, but you also need to know that what you say is, is it’s a matter for you. Like you, you’ve got the right to remain silent, that means you don’t have to say anything. Does that make sense?

Applicant: Yeah. [Slight nod of head].

Sinclair:  Yeah yep. And if you do say something, it’s being  recorded on that little machine there. Does that make sense? So, do you, do you understand that – –

Applicant: Yep.

Sinclair:  Yeah?

Geck:  So pretty much, you don’t have to speak to us if you don’t want to.

Applicant: Okay.

Geck:  But if you do speak, you want to speak like you, you are at the moment, it’s just being recorded, and then that little CD that comes out of that machine can be played in a courtroom as evidence. Okay. So we just have to warn you about that, that’s all. So do you understand that warning?

Applicant: Yep.

Geck:  Okay.

Sinclair:  And so um, you’ve also got a, some other rights. You’ve got the right to telephone or speak to a friend or relative, inform that person where you are and arrange or attempt to arrange for that person to be present during questioning. So you, you’re allowed to telephone or speak to someone. For example, you’ve got your aunty – –

M:  Aunty.

Sinclair:  Here.

Applicant: Yep.

Sinclair:  Yeah. And, and you’ve also got the right to telephone or speak to a lawyer of your choice, inform that person where you are and arrange or attempt to arrange for that person to be present during questioning. And if you do want to telephone or speak to these people, questioning can be delayed for a reasonable time for that purpose. Um, and, is there anyone else you guys’d like to speak to?

M:  No. [Shaking head].

Sinclair:  No. Anyone else you’d like to speak to? Don’t want to phone your – –

M:  No, she doesn’t wanna [indistinct].[6]

Sinclair:  Alright.

Geck:  We just have to get you to speak your answers, S…

Sinclair:  Yeah.

Geck:  Just because um it’s –

Applicant: Why?

Geck:  Being recorded.

Applicant: [Indistinct].[7]

Sinclair:  Are you happy that you’ve spoke to your aunty about why you’re here today?

Applicant: Yeah.

Sinclair:  Yeah, and you’re aware of – –

M:  Yeah.

Sinclair:  The circumstances?

M:  [Indistinct].[8]

Sinclair:  Yep.

M:  Yep.

Sinclair:  And do you understand, if you want to we can arrange for someone else to come down for you? Yeah?

Applicant: Yeah.

Sinclair:  Yep. Alright.

Geck:  Is that from, yeah. So are you of Aboriginal descent, S?

Applicant: Yep.

Geck:  And so we can get someone to come down from the support agency, from um, I think it’s, what are they called, Aboriginal Legal Aid or something.

M:  Oh – –

Sinclair:  It’s ATSILS.

M:  Abor –, ATSILS, yeah.

Geck:  Yeah, ATSILS, yeah.

M:  Yeah. [Indistinct].

Geck:  Mm.

Applicant: Okay.

Geck:  Um, do you want to have a support person present for that?

Applicant: No.

  1. [21]
    At this point Sinclair then turns to M about being a support person. The following exchange takes place:

Sinclair:  And so, just as um –

M:  Yep.

Sinclair:  You’re support person –

M:  Mm.

Sinclair:  You’ve got a form 36, what we call a form 36.

M:  They or –

Sinclair:  Mm that’s there, yeah.

M:  [Indistinct].

Sinclair:  Oh, you got two of them.

M:  Yeah.

Sinclair:  Oh.

M:  There’s a [indistinct].[9]

Sinclair:  Um, so basically what it is is just, it’s just you’re, you’re here just to ensure that – –

M:  Yep.

Sinclair:  The, interview’s being conducted properly.

M:  Mm.

Sinclair:  And, and anything you’re not sure of, or, you – –

M:  Mm.

Sinclair:  No, you’re supposed to, act – –

M:  Yeah.

Sinclair:  Act on S’s behalf.

M:  Yeah, to mm, yeah.

Sinclair:  Um, and once again, like if there’s anything you’re not sure of, just let us know and we’ll try and re- clarify it for you.

M:  Mm.  No worries.

  1. [22]
    Throughout the course of this exchange M is shuffling the pages that were part of Form 36 given to her previously.
  1. [23]
    Sinclair established from the applicant that she was going to North Ipswich School, but did not ask what grade she was in. The applicant said that she was able to read and write English, but no further attempt was made by the police officers to determine her proficiency. The applicant then proceeded to make admissions to the offending. It’s clear from the digital recording that M remains silent for most of the exchange that takes place between T8 to T28.
  1. [24]
    Significantly, at the point on the transcript at T22, l 10, and further at T23, l 30, the applicant is showing significant signs of tiredness.
  1. [25]
    At T28-29, Sinclair asks the applicant whether she understood she had done the wrong thing. The applicant replies ‘’cause the fire was too big and I shouldn’t have done it in the first place’. This then leads to the following exchange:

Sinclair:  No, you shouldn’t have. So what we want to take away from this, really is, what are you going to do next week or tomorrow?

M:  That’s it.

Sinclair:  That’s, that’s, what, what can you do next time to make a different decision? ‘Cause obviously, from our side of it, we don’t want you lighting these fires all the time. That’s just no good is it?

Applicant: No.

M:  You’ve got a lot better jobs to do hey? Remember I told you last time S, the last time I told you.

Applicant: I dunno.

M: ‘Cause you and Kyle, ever since youse come down to the house you keep them away, youse be stealing every single night – –

Applicant: Yeah.

M:  Ever since I’ve come over to that house, police come every single night, every single day. You know at this age when you’re at home you know, so you’re going home today to your mother, alright?

Applicant: Yep.

M:  This is going to stop S ‘cause you’re not I’m going to take you home. Sorry detective, but she’s gotta go home, ‘cause she’s been out more than a week.

Geck:  Mm.

M:  But I’ve got to come back, you know and it’s just, ever since [indistinct] being back at Jo-ann’s house, they just, [indistinct] you know?

Geck:  Yeah.

M:  [Indistinct] police had come on down, [indistinct] you’re like, what now?

Geck:  Mm.

M:  You know, and – –

Geck:  Mm, maybe some – –

M:  [Indistinct].

Geck:  Separation, you know, when – –

M:  Yeah, ‘cause they’re both.

Geck:  They’re all together.

M:  Getting out [indistinct] like [indistinct] getting out.

Geck:  Mm.

M:  And he wants to come into our house, you know, like with his kids. He’s been out for three years now, like Christmas, you know.

Geck:  Mm.

M:  And now I don’t know who’s going to tell him [indistinct] about this, you know, hey.

Geck:  Mm.

M:  Are you going to stop doing that, S?

Applicant: Yes.

  1. [26]
    The following further exchange took place between T33-34:

Sinclair:  Um, and you know the difference between right and wrong, yeah?

Applicant: Yes.

Sinclair:  ‘Cause you don’t want your mum catching you do you?

Applicant: No.

Sinclair:  No. What’s she going to do?

Applicant: Get up me and – –

M:  Mm.

Applicant: Grab me and flog me.

Sinclair:  Yeah. Do you like that?

Applicant: No.

Sinclair:  No. Probably not. No. And so what – –

M:  Oh, man.

Sinclair:  So, so when you hang around these kids next week, yeah?

Applicant: Mm.

Sinclair:  What are you going to do?

Applicant: Be good.

Sinclair:  Yeah. Is there anything else that you girls’d like to say? Any questions you got?

M:  I might just say something. Um, now S, now, where are youse gonna go when this gonna happen again?

Applicant: Juvi.

M:  I’m going to tell the police right now, if any of youse do it again, anything, I’m telling the detectives. Put you in a cell for a couple of nights and see how youse like it and stay there. Alright? ‘Cause I want you is, you gotta stop.

Applicant: Yeah.

M:  Like so [indistinct] you’re going home tonight, you know, I’m going to tell your mother, I’ll be telling, not me, the police’ll be telling her [indistinct] they, actually the police going tell your mum. [Indistinct] in case you go out. I’m not gonna lie to your mother. Honestly, you went out and did it. Okay?

Applicant: Yep.

M:  [Indistinct] you gotta stay away from all those kids now. It’s just not you, S, [indistinct].

Sinclair:  Yeah, how often are you going out at night, late at night? [At this point the applicant is stretching as if tired].

M:  Tell the truth.

Applicant: Um – –

Sinclair:  You don’t, you’re not, I’m not going to – –

M:  Yeah, [indistinct].

Sinclair:  ‘Cause you shouldn’t, make, the reason why you shouldn’t be out by yourself is you’re, you’re too young and you’re too vulnerable, yeah. Like it’s, it’s purely a matter of your safety and welfare, like more than anything else.

  1. [27]
    At this point in the conversation Senior Constable Geck reminds the applicant of a story that another police officer told the applicant before the interview commenced. Geck said the following:

He was a kid who thought he was indestructible, would jump on trains and buses, and he, that was, that story is real.  That kid ended up dead.  Cut throat, cut straight down the middle.  Because he, he pulled a knife on someone, trying to steal their money, and the guy just killed him.  So you never know who you, you know that lady you tried to take the phone off and stuff you don’t know who you’re, who you’re trying to steal from, ‘cause one day they’re going to come back and go– –”

  1. [28]
    The interview concludes at 12.46 pm on 18 January 2017. The transcript makes it clear that the interview concludes abruptly, and this is confirmed by watching the digital recording. Significantly, neither police officer asks the applicant the concluding questions that invariably are asked at the conclusion of any interview, whether it be an adult or a child, such as whether the interview was given of their own free will, whether what was said by the interviewee was the truth, and whether any threat, promise or inducement was held out to them to take part in the interview.
  1. [29]
    My overall impression of M was that she was obviously concerned for the welfare of the applicant, and was upset about her getting involved in criminal activity. She clearly sided with the police, and was anxious to impress on the applicant the wrongfulness of her actions, emphasising what would happen if she continued to offend in the future.

Other evidence

  1. [30]
    The respondent relied on the second statement of Detective Senior Constable Steven Miles, dated 24 October 2018. He had conducted an interview with a suspected co-offender of the applicant earlier that morning. Before the commencement of the formal interview with the applicant, he spoke to the applicant in what is called a ‘quiet room’ within the child abuse unit at Logan Central Police Station. He told her the story about Dylan Charles Anderton, a fourteen year old boy from Capalaba who was murdered in Slacks Creek in 2001. This is clearly the conversation that was referred to in the interview by Detective Senior Constable Geck. In a further third statement of Miles dated 24 October 2018, he provided specific details of what he told the applicant. The purpose of the conversation was to highlight to the applicant the risks of roaming around the streets at night. Some of the details of the murder given to the applicant were that the boy ‘had his throat cut and stomach stabbed from belly button to throat. Dylan’s body was stuff under drainage pipes under the rear of the now Youth and Family Services building, Kingston Road, Woodridge. Upon conviction it was revealed that Dylan was murdered by an adult for a ten dollar drug deal gone wrong’.
  1. [31]
    The prosecution referred to the statement of Detective Sergeant Timothy Everett, dated 25 October 2018. Briefly, Everett describes taking up with the applicant and other children on 17 January 2017 at an address in Runcorn. Everett states that the applicant was warned of her rights in the presence of Jo-ann Margaret McGrath, and that the applicant made admissions to certain offending. Everett asserts that the conversations were electronically recorded but has in the meantime been unable to locate the recordings of the conversations.
  1. [32]
    The respondent also relied on the statement of now Detective Sergeant Geck dated 24 October 2018. Relevantly, Geck states that she and Sinclair went to the Logan Community Hospital and located the applicant, who was cleared by medical staff for release. The statement is silent on whether M was at the hospital at that time, as asserted by Sinclair.
  1. [33]
    Annexure B to the outline of the respondent is Form 36 entitled ‘Information For Support Persons about their Role’, which was given to M at some point before the interview with the applicant commenced. Relevantly it states as follows:

Your role as a support person during the questioning of a person includes ensuring that as far as possible the person is questioned in a way that avoids any situation or circumstances which may give rise to a suggestion of oppression, unfairness, fear or dominance by a police officer, or to any other injustice.  Your role also includes ensuring that as far as possible the person is questioned in a way that avoids any situation or circumstance whereby he or she may be overborne, oppressed or otherwise unfairly or unjustly treated.  In your role as a support person you must act in the best interests of the person.

The police officer must ensure that as far as practicable you understand the nature of your role as a support person.  If you ask, the police officer must give you an explanation of anything relevant to your role as a support person.

The police officer will inform you of the identity of the person and why he or she is going to be questioned.

You should inform the police officer if any of the following circumstances exist:

  • You have an affiliation, association or other relationship with the police officer questioning the person;
  • You have a relationship of authority with the person that may prevent you from acting in the best interests of the person (an example would be if you were the teacher who recently excluded the person from a school);
  • You are a victim, or a friend of the victim, of the offence, for which the person is being questioned;
  • You are a witness to the commission of the offence for which the person is being questioned.

However, the above circumstances do not limit the circumstances in which a person may be unable to properly perform the role of support person.

Evidence of Senior Constable Sinclair at the pre-trial hearing

  1. [34]
    Senior Constable Sinclair gave evidence at the pre-trial hearing on 23 October 2018. He set out his experience as a police officer, which included eight years in the Metropolitan Police in London, and then in the Queensland Police Service since the end of 2012. He detailed his experience with juvenile offenders, commenting that ‘throughout my time in the police quite often as much as half of the people we deal with are juvenile offenders. Maybe not half, but uh – a lot’.[10]
  1. [35]
    He gave evidence that on the morning of 18 January 2017 he and Detective Senior Constable Geck were tasked to locate the applicant at the Logan Community Hospital. He recalled that they arrived sometime in the morning, maybe 10.00 am or thereabouts. On arrival he considered that the applicant was fine, that she did not appear to be drug affected or under the influence of anything, she seemed to be alert, ‘a normal kid’. Sinclair was adamant that at the hospital she was with her aunt, M.
  1. [36]
    Sinclair confirmed that he did not speak to any of the doctors. He said that at the hospital he spoke to M, asking ‘I said S’s got a number of outstanding matters we need to speak to her about.  Are you –  are you happy to come down to Logan Central Police Station and – and deal with this now? Obviously, you don’t have to, but – I appreciate you’ve [indistinct] the hospital, but – so – so we ask them these questions’.
  1. [37]
    Sinclair said that he actually spoke to M, and that he couldn’t actually remember what he said to the applicant. He did not make any notes of those conversations, nor were there any tape recordings of those conversations. He stated that “to me, the aunty seemed more than happy to get this matter dealt with.  Like, she was saying, ‘that’s fine, we can come down now.  I’ve got no other reason why we can’t’… [The applicant] she seemed happy – happy to go along”.
  1. [38]
    Sinclair said that on arrival at the Logan Central Police Station they went upstairs to the Child Protection and Investigation Unit office. The applicant and M were taken to an interview room and they remained there while he and Geck sorted out some paper work. He thought that they might have been in that room for about half an hour. He couldn’t quite remember, but recalled that they were in the room longer than normal because there were a number of people to be dealt with and an amount of paper work to be completed.[11]
  1. [39]
    He considered that M’s role was to be a support person at the interview for the applicant because she was under 18. He said that ideally the parents would be obtained, and in that case the father was not able to be contacted. He recalled that he spoke to the mother, who advised them that she was at Ipswich and she couldn’t get to Logan Central, but the mother was happy that M acted on the applicant’s behalf.[12]
  1. [40]
    He said that M told him that she was happy to be a support person for the applicant. He issued her with the Form 36 on the morning before the interview. When asked if he went through the contents of Form 36 with M, he said:

“Yep.  Yep.  I showed – there’s a couple of pages there, essentially.  Some of its quite long and I said, ‘are you happy to go through it?’ – ‘are you happy for me to go through it with you?’ she said, ‘no, no, no.  It’s fine.  I’ve read it before.’”[13]

  1. [41]
    Sinclair that there was nothing about the presentation of the applicant which suggested to him that she did not understand what was going on. Nor was there anything about M’s presentation that gave him any concern about her being a support person:

No, I thought the aunty was a good support person.  To me, it seemed like she knew what was going on… well, she was there, she was alert, she was listening, she was – I thought she was supporting S myself, as good as anyone could.[14]

  1. [42]
    He acknowledged that he was aware that M was the mother of co-accused in relation to the same offences that they were investigating the applicant. He said he became aware of that in the morning before the interview. When asked if that caused him any concerns about M being a support person, he said:

No, not in this case.  I don’t she was I don’t think she was trying to influence her kid in any way.  She was – she was happy to help the kid do a police interview.  To me, it seemed like she wanted the kid to tell the truth.” [Emphasis added][15]

  1. [43]
    Sinclair said that the only other option for a support person would be to obtain a justice of the peace. When asked why he did not do that, he said:

To me, it seemed like S knew the aunty.  She was comfortable with the aunty.  She was happy to be with the aunty.  It didn’t feel like the aunty was, you know, someone she was fearful of or anything like that.  She felt quite comfortable.  To me, it seemed like she was very comfortable with the aunty.  So she seemed like the most appropriate person and she was there at the time, so yeah.  JP’s are just – would be a stranger.  So for someone so young, she might not – it might just make the process more daunting.[16]

  1. [44]
    Sinclair added that the fact that the applicant was of Aboriginal descent influenced his decision, as he considered she would be more comfortable with M as an Aboriginal relative.
  1. [45]
    In cross-examination, he said that he wasn’t really aware of the conversation between Detective Sergeant Miles and the applicant before the interview. He also said that he was not aware of the conversation that took place between the applicant and M before the interview took place. That occurred in a room and they were given privacy.[17]
  1. [46]
    He acknowledged that he did not see M read the Form 36. He conceded that he didn’t ask her if she could actually read, and whether she had in fact read the form.
  1. [47]
    In regard to conversations at the hospital, he could not recall whether he specifically told the applicant that she did not need to accompany the police to the police station. When asked, “was that ever communicated directly between you and the child? ‘you do not need to come with us to the police station’?”, Sinclair answered, ‘I would say that’s something I referred to Jo-Ann McGrath’.[18]  [It seems in the material that ‘Jo-ann’ is also used to refer to M.  I have used the given name ‘M’ because that is how the support person introduced herself on the digital recording.]
  1. [48]
    It was put to Sinclair that in fact M was not at the hospital when he and Geck collected the applicant. He maintained that on his recollection, albeit from 20 months ago, that she was present.[19]
  1. [49]
    Sinclair considered that there was not in his mind any conflict with M being a support person for the applicant simply because she was the mother of two of the co-accused.[20]
  1. [50]
    Significantly, Sinclair gave the following evidence:

Well – so this is something that we examined, but after we looked at that, we thought no.  No.  She’s not really in a conflict because S – well, was essentially living with them.  S wasn’t really living anywhere at the time.  She was quite – quite transient.  That was the impression I got.  That she was living with the aunty.  So – – – well, the consideration was that essentially at the end of the day, M  was – whilst she was the aunty of a co-accused – sorry the mother of a co-accused and then the aunty of the – S, she’s also to all intents and purposes, her – her – her – her parent to a large extent.  And so therefore, she knows her.  My impression was that she was – S was quite comfortable with the aunty.  I – I – she certainly didn’t seem to be fearful.  The aunty was keen to help police.  She wasn’t obstructing us in anyway, which happened sometimes… she – well, she seemed to be co-operative, sorry, rather than keen. – – like, sometimes people refuse to co-operate.  She seemed happy to co-operate.” [Emphasis added][21]

  1. [51]
    Sinclair was then asked whether, in hindsight, he would consider that the mother of two co-accused might have an interest in protecting her own children and having another child confess. He said that he didn’t know what the other co-accused said in their interviews, but agreed that potentially it may not have been a good idea.[22]

No evidence from applicant or support person

  1. [52]
    The applicant was not called to give evidence at this hearing, something which would ordinarily be done on an application of this nature.[23]  The respondent was unable to locate M in order to call her to give evidence at the hearing.

The competing arguments

  1. [53]
    The applicant submits the following:

(a) In the absence of any recordings prior to the commencement of the interview, and given the circumstances of the applicant’s attendance at the police station, it is unclear why the applicant agrees that her attendance at the police station is voluntary during the interview, and whether she understands the concept of voluntariness. At no time was she asked to demonstrate her ability to understand the meaning of the caution in her own words.

(b) There is no evidence of compliance with s 33 Police Powers and Responsibilities Code in schedule 9 of the Police Powers and Responsibilities Regulation 2000.

(c) M should not have been allowed to be the support person for the applicant. She was the parent of an alleged co-offender, which gave rise to a clear conflict of interest.

(d) Further, M did not adequately perform the role of support person for the applicant at the commencement of the interview, answering on behalf of the applicant on occasions. Later in the interview it’s quite clear that M sides with the police and makes threatening comments to the applicant.

(e) Before the formal interview commenced, the applicant was told a disturbing account of a young child having been murdered in gruesome circumstances by a senior police officer. While perhaps the motivation of that story was to impress upon the applicant the need to be safe and not to be roaming the streets, it had the effect of frightening and unsettling the child just before an interview was to take place.

(f) There is insufficient evidence to show that M understood what her role was, and whether she had in fact read the Form 36 provided to her.

(g) The applicant was only ten years old, she had special needs by virtue of her Indigenous culture, her recent hospitalisation after inhaling aerosols, she did not receive any proper explanation about what a lawyer was, nor did she get any chance to say whether she would like one, combined with the other matters raised to lead to the exclusion of the interview, either on the grounds that it was involuntary, or on the grounds of unfairness.

  1. [54]
    The respondent submits that M was an adult relative of the applicant and clearly fell within the definition of a support person. She was the applicant’s aunt, and indeed the applicant had been living with her in the days prior to the interview. Therefore M was ‘hardly a person in a position of authority with respect to the applicant’. M was supplied with the Form 36 document before the interview, which clearly outlined her role as a support person and the rights of the applicant. She was given an opportunity to speak to the applicant privately before the interview took place.
  1. [55]
    At the commencement of the interview the rights of the applicant were clearly explained to her, and she was given an opportunity to have another person present as her support person, or a lawyer of her choice, including a representative from ATSILS.
  1. [56]
    The respondent submits that on the previous day, 17 January 2017, the applicant was cautioned in respect of six charges of shop stealing and one charge of wilful damage. The evidence established that her rights had been explained to her on that occasion, and therefore at the time of the interview in question she would have been aware of her rights.
  1. [57]
    The respondent concedes that toward the end of the interview, M makes what is described as ‘unnecessary statements’. The respondent submits however that those statements could not be seen as a threat, promise or inducement. Further, the respondent submits that they are made at the end of the interview after the applicant has made admissions to the offences in question.
  1. [58]
    In particular, the respondent submits as follows:

“[37]  Particularly, prior to any notable involvement of M in the interview, the applicant quite readily and without any hesitation gave her account of her part in the commission of 6 offences. Specifically, she spoke about her involvement as the principal offender in the commission of counts 1 and 2, and then counts 3 and 4 which subsequently occurred at a different location. She then also readily said, without any prompting, that she lit a fire in Kmart at the Hyperdome Shopping Centre which is the location of counts 5 and 6. Furthermore, the applicant described the manner in which she achieved her goals (to steal property), namely by lighting tags on fire by a jet lighter in a specific section of the store.

The relevant law

  1. [59]
    Relevantly, s 29 Youth Justice Act 1992 states 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 a support person was present with the child at the time and place the statement was made or given.

  1. (4)
    This section does not limit the common law under which a court in a criminal proceeding may exclude evidence in the exercise of its discretion.”
  1. [60]
    Section 421 Police Powers and Responsibilities Act 2000 states as follows:

“(1) This section applies if—

  1. (a)
    a police officer wants to question a relevant person; and
  1. (b)
    the police officer reasonably suspects the person is a child.
  1. (2)
    The officer must not question the child unless—
  1. (a)
    before questioning starts, the police officer has, if practicable, allowed the child to speak to a support person chosen by the child in circumstances in which the conversation will not be overheard; and
  1. (b)
    a support person is present while the child is being questioned.
  1. (3)
    However, the child may not choose as a support person a person against whom the offence is alleged to have been committed.
  1. (4)
    If the police officer considers the support person is unreasonably interfering with the questioning, the police officer may exclude the person from being present during the questioning.”
  1. [61]
    Section 428 Police Powers and Responsibilities Act 2000 sets out the circumstances in which a person may be unable to properly perform the role of a support person for a relevant person.  Sub-section(3) sets out the circumstances as follows:

“(a) the person’s ability to perform the role is substantially impaired by the effect of something the person has ingested, for example, alcohol, a drug or a potentially harmful thing, to the extent that the person is unable to act in the best interests of the relevant person;

  (b) the person is a person with an impaired capacity and the person’s impairment prevents the person from acting in the best interests of the relevant person;

  (c) the person is, or appears to a police officer to be, unwilling to perform the role of a support person because of illness, injury, pain, tiredness or a similar cause;

  (d) the person has an affiliation, association or other relationship with a police officer questioning the relevant person;

  (e) the person has a relationship of authority with the relevant person that may prevent the person from acting in the best interests of the relevant person;

   Example for paragraph (e)—

   a teacher who recently excluded the relevant person from a school

  (f) the person is a victim of the offence for which the relevant person is being questioned or a friend of the victim;

  (g) the person witnessed the commission of the offence  for which the relevant person is being questioned.”

  1. [62]
    Section 431 states that a caution must be given before a relevant person is questioned, in the way required under the Responsibilities Code. Significantly, the caution must be given in a language in which the person is able to communicate with reasonable fluency. If a police officer reasonably suspects that the person does not understand the caution, the officer may ask the person to explain the meaning of the caution in his or her own words. Sub-section(4) states that if necessary, the police officer must further explain the caution.
  1. [63]
    In R v W & Ors [1988] 2 Qd R 308, Dowsett J considered the authorities in respect of voluntariness.  Significantly, his Honour said this at [314]:

In summary, it seems to me that the better approach to voluntariness is as follows:

(a) Confessional material must be shown to be voluntary;

(b) The onus of establishing voluntariness is upon the Crown; the matter must be established on the preponderance of probability but not beyond reasonable doubt;

(c) Voluntariness is to be determined by reference to whether the accused exercised a free choice to speak or remain silent; see MacPherson v R (1981) 147 CLR 512; 519. This predicates an awareness of the choice;

(d) Characteristics peculiar to the accused or his race or social or age grouping may be relevant to the question of voluntariness but only in assessing the effect upon him of external factors which may go to voluntariness;

(e) A mere tendency to respond to questioning is not sufficient to deprive a confession of voluntariness;

(f) The importance of ensuring that the appropriate warning is given and understood relates to voluntariness as well as to the exercise of discretion to exclude unfairness;

(g) The considerations of inadmissibility for want of voluntariness and discretionary exclusions are not mutually exclusive;

(h) I should determine whether I am satisfied that each of the accused made a voluntary confession in the above sense.

Turning to the discretion to exclude for an unfairness, it is clear that the discretion is only enlivened once it is established that the confession is voluntary. Thus the existence of the discretion predicates circumstances in which a voluntary confession should not be received. This implies a consideration of the public interest in the apprehension and punishment of wrongdoers as against the interests of the public and the citizen in ensuring that there is no unfairness in methods used by law enforcement agencies.

  1. [64]
    The role of a support person was considered in R v C [1997] 2 Qd R 465.  The Court said this at [470]:

In our opinion, the trial judge was not prohibited s. 9E[24]from admitting any of the evidence of admissions by the appellant which was received.  All of the material admissions were made in the presence of either the appellant’s mother or a justice of the peace who was not excluded by s. 9E(2)(d)(i) or (ii).  There is no sufficient reason for implying qualifications into the categories of adult person who must be present by reference to the competency of that person, or his or her capacity to provide useful advice or assistance to the child, or to what remember what occurred in his or her presence, including questions asked and the answers given.  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 applicability of which is recognised by s. 9E(5).

  1. [65]
    In that case, the Court of Appeal allowed the appeal against conviction, holding that the appellant’s interview should have been excluded in the exercise of discretion due to the shortcomings in the support person’s role.
  1. [66]
    In R v Phung and Huynh [2001] NSWSC 115, Wood CJ at CL considered the role of the support person in the New South Wales’ context.  His Honour said this at [36]:

The role of the support person is to act as a check upon possible unfair or oppressive behaviour; to assist the 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 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.”

  1. [67]
    His Honour observed at [39] that police officers need to faithfully implement the law concerning the questioning of children, and not merely give lip service to them. At [40], his Honour listed numerous matters of concern, including the selection of that accused’s aunt and cousin without any appropriate enquiry being made of the accused as to who he wanted contacted, nor any enquiry as to the suitability of those persons to perform the support person role. In addition, amongst other factors there were some signs of the accused being tired and of having used drugs prior to the interview.
  1. [68]
    At [44]-[45], his Honour considered that there was no conduct on the part of the detectives that could be said to be oppressive or would warrant the description of a form of threat to the accused, or any knowing disobedience to the legislative regime. However his Honour considered that that was not definitive, as he had to weigh the nature and extent of the failure to comply with the legislative regime.
  1. [69]
    Bell J in DPP v Toomalatai (2006) 13 VR 319 considered the role of a support person in the Victorian situation.  His Honour expressed with approval the comments of Wood CJ at CL in R v Phung and Huynh, supra, and also approved of comments made by Hidden J in R v H (a child) (1996) 85 A Crim R 481 at 486:

…the primary aim of such a provision is to protect children from the disadvantaged position inherent in their age, quite apart from any impropriety on the part of police.  That protective purpose can be met only by an adult who is free, not only to protest against perceived unfairness, but also to advise the child of his or her rights.  As the occasion requires, this advice might be a reminder of the right to silence, or an admonition against further participation in the interview in the absence of legal advice… further, within appropriate limits, the adult might assist a timid or inarticulate child to frame his or her answer to the allegation.  For example, the child might be reminded of circumstances within the knowledge of both the child and the adult which bear upon the matter.

  1. [70]
    Bell J observed that a breach of a procedural rule governing the interrogation of a young person may bring about the discretionary exclusion of a confession. His Honour observed that the failure of an independent person to properly carry out their role may also bring about the same result.
  1. [71]
    In the case before his Honour, the support person was a justice of the peace who was judgmental and admonished the accused before the interview, acting in entirely the wrong way. His Honour said this at [334]-[335]:

The unfortunate consequences were that Mr Walker’s presence added to the weight of disadvantage that Mr Toomalatai had to carry.  Instead of bringing balance to the situation as an adult on Mr Toomalatai’s side, he became another adult before whom Mr Toomalatai was being held to account for his alleged conduct.  His presence, which was intended to make things better for Mr Toomalatai, in fact made things worse.

These circumstances give rise to serious doubts in my mind about the reliability of Mr Toomalatai’s admissions.  I believe Mr Toomalatai spoke the truth in his evidence when he said he was ‘scared’ ‘didn’t know what he was saying’ and his answers just came out of his mouth.  It is impossible to know how much of the interview was accurate and how much of it was reckless blurting on which it would be a travesty of justice to rely.

  1. [72]
    His Honour went on to observe that fairness was a two-way street, and that it was necessary to consider countervailing considerations. His Honour referred to the comments by Vincent JA in R v Tofilau (No.2) (2006) 13 VR 28:

…on the one hand, there is an obvious need to bring to account those who have committed serious offences if the objectives of the criminal justice system are to be achieved and societal values vindicated, but, on the other, it cannot be forgotten that those values incorporate the rights of the individual and, in part define the nature of the relationship between the citizen and the community in which he or she resides.  The balance is a delicate one and whether or not it has been maintained in a given case can only be determined after careful consideration of all the circumstances relating to the particular matter.

  1. [73]
    R v Swaffield; R v Pavic (1997) 192 CLR 159 is a seminal case in Australia concerning the admissibility of confessions.  Brennan CJ in his judgment at 179-182 considered the overlap between the discretions to exclude a confession on the grounds of unfairness, and the public policy discretion.  In the joint judgment of Toohey, Gaudron and Gummow JJ at 189, it was observed that the term ‘unfairness’ necessarily lacks precision.  It approved of the following quote from Van Der Meer v R (1988) 62 ALJR 656 at 666, per Wilson, Dawson and Toohey JJ:

[T]he question is not whether the police have acted unfairly; the question is whether it would be unfair to the accused to use his statement against him…Unfairness, in this sense, is concerned with the accused's right to a fair trial, a right which may be jeopardized if a statement is obtained in circumstances which affect the reliability of the statement.

  1. [74]
    Toohey, Gaudron and Gummow JJ then went on to observe the following at 189:

Unfairness then relates to the right of an accused to a fair trial; in that situation the unfairness discretion overlaps with the power or discretion to reject evidence which is more prejudicial than probative, each looking to the risk that an accused may be improperly convicted.  While unreliability may be a touchstone of unfairness, it has been said not to be the sole touchstone.  It may be, for instance, that no confession might have been made at all, had the police investigation been properly conducted.  And once considerations other than unreliability are introduced, the line between unfairness and policy may become blurred.

Conclusion

  1. [75]
    The absence of evidence from the applicant and the support person, M, has made it difficult to reach a determination on the voluntariness of the interview. I suspect that the applicant’s decision to answer questions in the interview may not have been the result of a free exercise of the choice to speak or to remain silent.
  1. [76]
    I have however decided that the interview should be excluded in the exercise of my discretion, on the grounds of unfairness. There is no question that the charges are serious, and there is a clear public interest in having child offenders brought to account. However the following factors in combination render it unfair to have the interview admitted into evidence:
  1. The applicant was only ten years old.
  1. She had recently been hospitalised for inhaling aerosol cans, suffering illness as a result.
  1. The applicant was visibly tired during the interview.  No evidence was led before me to determine when she had last slept.  There is nothing in the medical notes which indicated that the applicant had slept at the hospital.  The interview did not commence until 11.50 am on 18 January 2017.
  1. The interviewing police failed to ensure that M fully understood her role as a support person.  While she had Form 36, it was not established whether she had read it, and if she had, whether she fully understood it.
  1. M had a conflict of interest.  She was the mother of a co-offender, and may have had an interest in having the applicant confess to the allegations.
  1. When the police advised in the interview that the applicant had the right to telephone or speak to a lawyer, or to arrange for a lawyer to be present during questioning, M answered on the applicant’s behalf.
  1. M was clearly in a position of authority over the applicant, and exercised her authority during the interview, particularly towards the end between T33-35.
  1. There was no record of what was said to the applicant by police at the hospital, or on the car journey to the police station.  When the applicant is asked early in the interview whether she had come to the police station of her own free will, M answers on her behalf.  A bit later when Senior Constable Geck asks again if the applicant had come to the police station of her own free will, the applicant slightly nods her head, and says ‘yeah.  Yes’, very softly.  It is not clear that the applicant had much choice in the matter.
  1. There is a risk that the unrecorded conversation with the applicant that took place before the interview commenced about the murder of a young boy some years ago put the applicant in a position of fear.  There was nothing wrong with the police having that conversation to advise the applicant of the risks of roaming the streets unsupervised.  However such a conversation should have occurred after the interview was completed.
  1. The interviewing police failed to ensure that what the applicant told them was in fact the truth.  It is a telling omission on their part that at the conclusion of the interview they failed to ask the applicant again if she had attended the police station of her own free will, and to ask her whether any threat, promise or inducement was held out to her to take part in the interview.
  1. [77]
    The application is granted. The interview between police and the applicant on 18 January 2017 is excluded from the evidence to be led at trial.

Footnotes

[1]  CS clearly refers to Department of Child Safety.

[2]  QH clearly refers to Queensland Health.

[3]  The sound on the disc that I was given cut out for a short period, between 12:31:34 and 12:35:56.  However the transcript records what was alleged to have been said during that period.  I raised this issue with the parties on the resumption of the hearing, and it was accepted that nothing of significance occurred at that point.  I watched the interview closely at this point.  I am satisfied I am able to make a decision without listening to that short period.

[4]  T3, l 10-35.

[5]  T4, l 20-50.

[6]  The rest of this sentence is difficult to hear on the disc.

[7]  It is extremely difficult to hear what the applicant says at this point.  All throughout the interview she was very softly spoken and withdrawn.

[8]  I am unable to discern what the aunt said at this point.

[9]  Again it was difficult for me to hear what the aunt was saying in this exchange, as her voice would drop off at the end of her sentences.

[10]  R1-6, l 36.

[11]  R1-10, l 20.

[12]  R1-11, l 3.

[13]  R1-13, 1 10.

[14]  R1-14, l 30.

[15]  R1-14, l 40.

[16]  R1-15, l 35.

[17]  R1-20, l 20.

[18]  R1-21, l 35.

[19]  R1-23.

[20]  R1-24, l 10.

[21]  R1-24, l 25.

[22]  R1-25, l 20.

[23]  Counsel for the applicant indicated at the commencement of the hearing that the applicant had little memory of the events of 17 and 18 January 2017.

[24]  The precursor to s 29 Youth Justice Act 1992.

Close

Editorial Notes

  • Published Case Name:

    The Queen v S

  • Shortened Case Name:

    The Queen v S

  • MNC:

    [2019] QCHC 1

  • Court:

    QChC

  • Judge(s):

    Chowdhury DCJ

  • Date:

    14 Feb 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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