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- Unreported Judgment
CHILDRENS COURT OF QUEENSLAND
R v CFD  QChC 5
Application pursuant to s 590AA
Childrens Court of Queensland at Brisbane
11 March 2020
18 February 2020
The record of interview obtained on 17 April 2019 excluded from evidence.
CRIMINAL LAW – CHILDREN – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED – GENERALLY – where the applicant child is Indigenous – where the applicant child was 13 years of age at time of offending – where the applicant child had some learning difficulties – where the police officer did not caution the applicant child adequately – where the child did not fully understand the cautions – whether evidence unfairly or improperly obtained – CRIMINAL LAW – CHILDREN – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED – PROCEDURE – SUPPORT PERSON – where the applicant child’s step mother attended the interview as a support person – where the role of the support person was not accurately explained by the police officer – whether the support person acted in the child’s best interests by ensuring the child’s comprehension of questions and their rights – where the support person criticises the child – where the step mother acted in the role of a support person
C Lovel for the Applicant
E Jary for the Respondent
Legal Aid Queensland for the Applicant
Office of the Director of Public Prosecutions for the Respondent
- This is an application to exclude from evidence a record of interview conducted by police on 17 April 2019 with CFD, a 13 year old boy.
- The applicant child was charged with entering a premises and stealing, attempted entry to a premises with intent to commit an indictable offence and an attempted robbery in company. All the offences were said to have occurred on 16 April 2019 at a shopping centre. The first charge involved entering a parked car and the subsequent theft of a mobile phone while the complainant’s family were seated inside the car. The second charge related to the attempted entry of a car while the complainant was driving out of the shopping centre carpark and the last charge involved the complainant being approached from behind by two males (one of which was this applicant) before being sprayed in the face with deodorant. She fell to the ground and was kicked and punched while car keys were being demanded.
- Police were called to the shopping centre and at approximately 11.00 pm they conducted patrols and found the child and his co-accused a short distance away hiding in some bushes. He was taken into custody but released that night and sent home. He was brought into the police station the next morning around 10.00 am in the company of his step mother. An interview was commenced at 10.27 am. His step mother was present during the interview as a support person.
- The bases submitted for exclusion are firstly that the support person was not adequate, secondly that the record of interview as not voluntarily made, and thirdly that there are issues which enliven the discretion to exclude it on the basis of fairness and public policy.
- The law applying to the questioning of offenders can be found in the Police Powers and Responsibilities Act which provides:
“A police officer who is questioning a relevant person must not obtain a confession by threat or promise.”
“Before a police officer starts to question someone they must tell them that they have a right to telephone or speak to a friend or relative, or a lawyer and to arrange for them to be present during questioning if necessary, provided that questioning is not delayed unreasonably. If the person wishes to speak to a friend, relative or lawyer, then the police officer must allow them to do so and provide reasonable facilities for that to happen.”
- This section applies if –
A police officer wants to question a relevant person; and
The police officer reasonably suspects the person is a child.
- The officer must not question the child unless –
a) Before questioning starts, the police officer has, if practicable, allowed the child to speak to support person chosen by the child in circumstances in which the conversation will not be overheard; and
b) The support person is present while the child is being questioned. However, the child may not choose as a support person a person against whom the offence is alleged to have been committed.
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.”
- Mirroring that, is s 29 of the Youth Justice Act which provides:
“In a proceeding for an indictable offence that Court must not admit into evidence against the defendant a statement made or given by 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.”
- The Police Powers and Responsibilities Regulations require the police to give the support person information in the approved form about the role of the support persons during questioning. They must ensure that as far as practicable they understand the nature of the support person’s role, give an explanation if asked and inform them of the identity of the child and why they are being questioned.
- The Youth Justice Principles are set out in the Youth Justice Act and guide all proceedings and dealings with children. The Charter of Youth Justice Principles provide in part:
“2. The Youth Justice System should uphold the rights of children, keep them safe and promote their physical and mental wellbeing.
- A child being dealt with under this Act should be –
a) Treated with respect and dignity, including while the child is in custody; …
- Because a child tends to be vulnerable in dealings with a person in authority, a child should be given the special protection allowed by this Act during an investigation or proceeding in relation to an offence committed, or allegedly committed by the child.
- A child being dealt with under this Act should have procedures and other matters explained to the child in a way the child understands.”
- The Operational Procedures Manual of the Queensland Police also contains instructions for the police pertaining to children. A support person must be present when questioning a child and the child should have the opportunity to speak to the support person chosen by the child in circumstances where the conversation will not be overheard.
- Finally, the DERIE Manual (Digital Electronic Recording of Interviews and Evidence) has a checklist in relation to interviews of suspects. It notes that if a support person is required to be present, the police officer should ensure that the support person has read and understood Form 36. The manual states that in addition to the usual warnings, when dealing with a child the officer should add “Do you understand that if you do speak that whatever you say will be recorded by this device? Do you understand that if you speak, whatever you say, may be told to a Court?”
- Therefore, before interviewing a child the police must ascertain that the child:
- (a)Is there of his own free will;
- (b)Has a support person of his choosing with him;
- (c)That the support person understands their role;
- (d)That the child understands his right to silence;
- (e)That the child understands the consequences of waiving that right; and
- (f)That the child understands his right to obtain legal advice
- In this case, the child was 13 years old at the time of the interview. He had had no previous contact with the police. He was Aboriginal. He was in a special class at school, so he presumably had some sort of learning difficulty. It was mandatory that a support person be present for the interview. The support person during the interview was his step mother. At no stage was the child asked if he consented to the stepmother acting as his support person. The child was with the step mother about 15 to 20 minutes prior to the interview.
- The only conversation police officer Rogers had with the support person was to hand her the Form 36 and say words to the effect “This outlines your roles and responsibilities as a support person, if you have any questions in relation to that let me know”. That piece of paper was handed to her about 10 to 15 minutes before the interview commenced. The Form 36 is a one and a half page typed document. The first paragraph reads:
“Your role as a support person during the question of a person includes ensuring as far as possible the person is questioned in a way that avoids any situational 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 insuring that as far as possible, the person is questioned in a way that avoids any situational circumstances 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 interest of the person.”
- This is an example of the type of language that is used throughout the Form. The police officer made no enquiry as to support person’s reading ability or her level of education. It is unknown how long she took to read the form or if she was able to understand the responsibilities she undertook as a support person. She was not asked until half way through the interview whether she had read the Form 36. She was not given any detail of the charges being investigated before the interview commenced and it is not known what she explained to the child of his rights. She was not called during this hearing and refused to come to court.
- It can be inferred that the support person did not understand her role from her interaction with the police and the child during the interview. At the start of the interview when the child was asked whether he understood his right to remain silent he said “That means I just have to tell the truth and stuff”. The officer added “And if you don’t want to answer anything, you don’t have to”, and he replied “Yeah”. There was no further discussion around the fact that if he made any statements it could be later used as evidence in Court because the warning given did not mention Court. In the absence of the police ensuring that the child understood what was said, the support person should at that stage have stepped in and made sure the child had a clear understanding of what was going on. Similarly, there was no attempt to ensure that the child knew that he could speak to a lawyer who would act in his interests and that the interview would be suspended while he spoke to someone.
- The child was not informed about the charges that were being investigated at the beginning of the interview. It was assumed he knew. He was simply asked to say what happened yesterday from when he got up in the morning, and he gave a detailed version of his day. Officer Rogers questioned him for about half an hour in a gentle and reasonable way.
- Senior Constable McDonald, who was also present for the interview, began to question the child in a more aggressive fashion. There was no interference from the support person. During his questioning he started cutting him off,  cross-examining him, dropping a statement down onto the table, tapping on the desk and generally speaking in a loud and gruff manner. The police officer himself must have had some concerns about his behaviour as he asked the support person whether she felt he was being intimidating. She replied that she did not think that but then soon after commented to the child that he was changing his story and lying. Later she said to the police “He has actually said things to us adults at home and I’m sitting there shaking my head cause he’s not telling the truth”. Immediately before this stage the following exchange took place:
“SCON MCDONALD: Yeah. Alright. Now mate, I’m gonna give, this is your opportunity to tell me the truth
SCON MCDONALD: Alright? And I feel like I’m not getting the whole truth from ya.
SCON MCDONALD: D’you understand what I’m saying?
SCON MCDONALD: Alright. What I’m gonna do is give you little break. I want you to have a talk with your mum. Alright? I want, I want you to think about what’s gone on, and when I come back in here, I’d like you to tell me the truth.
STAADER (Step mother): How do I---
SCON MCDONALD: Mum, d’you understand what I’m getting? I feel like there’s some stuffs—
STAADER (Step mother): I---
SCON MCDONALD: Have been skimmed over.”
- The interview was then suspended but the step mother, rather than talking to the child alone, asked the police officer to stay for the discussion. This action alone suggests that the stepmother did not understand her role as a support person.
- The provision of a support person was discussed in H (a child) v R by Hidden J:
“The primary aim of such provision is to protect children from the disadvantaged position inherent in their age, quite apart from any impropriety on the part of the 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.”
- The Crown has not shown that the step mother understood her role as a support person, that the child had chosen her as his support person, or that she acted in a supportive way towards the child. She was entitled as his step mother to be annoyed at him for telling a different version of events to the police but that did not fulfil her obligations as a support person.
- Further, the overall effect of the child’s treatment on 17 April 2019 leads to a general conclusion of unfairness.
- Whilst there may not have been a flagrant disregard for the rules, nonetheless the police did not afford the child the full extent of the protections under the Act:
- (a)The child was not asked if he was attending the station of his own free will;
- (b)The child was not asked if he was happy for his stepmother to be his support person.
- (c)He was told that he was free to go unless arrested, but he was not advised that whatever he said could be used in Court against him. He was simply told it could be later used as evidence, in what way, how and what that would mean for him, was not explained;
- (d)He was not told what charges were being investigated until quite late in the interview. The Crown submitted that that was unnecessary because the offences had only occurred the night before, but I accept the defence submission that that pre-supposes that he knew exactly what the incidents were and in fact pre-supposes that he was guilty of the offences. It may be of course, that he was present for one or other, or all of the offences, but it was necessary for him to know at the start of the interview exactly what he was facing. This was not done.
- (e)It was not adequately explained to him, given his tender years, that he had a right to speak to a lawyer and to arrange for that lawyer to be present. He was not asked to explain his understanding of that statement and the police should have explained to him that they could contact Legal Aid for him.
- (f)In addition the questioning, whilst initially fairly gentle, became much more aggressive when McDonald took over the questioning. It was clear that McDonald did not believe what he was saying (not without some just cause), and his manner became quite abrasive to the extent that he then suggested that the step mother should interrupt if she thought he was being overbearing.
- The child did not give evidence, but there is sufficient evidence that the child was vulnerable and that he would have been unsure of his rights given his lack of contact with police. The Principles of Youth Justice acknowledge that a child under 14 is vulnerable.
- I accept the statement of principle in relation to unfairness from Van der meer v The Queen (1988) 82 ALR 10 at 26:
“The question is not whether the police have acted unfairly; the question is whether it be unfair to the accused to use the statement against him; R v Lee at 154; Clelland CLR at 18. Unfairness, in this sense is concerned with the accused’s right to a fair trial the right which may be jeopardised if the statement is obtained in circumstances which the affect the reliability of the statement.”
- In my view, the irregularities isn procedure and breaches of the act coupled with the obvious deficiencies with the support person means that it would be unfair for the evidence to be admitted against the child and accordingly the application is allowed and the record of interview is excluded.
 Police Powers and Responsibilities Act 2000 (Qld) (‘PPRA’) Part 3 Div1, s 416.
 PPRA Part3 Div1, s 418.
 PPRA, s 420.
 PPRA, s 421.
 Police Powers and Responsibilities 2012 (Qld) Regulations Div3, Reg 34.
 Youth Justice Act 1992 (Qld), Sch 1.
 Operational Procedures Manual Issue 74 Public Edition, Chapter 5.9.
 DERIE Manual, Appendix 1.
 See T 1-6, l 35.
 T 1-8, l 15.
 P20 ROI.
 P22, 26,27 ROI.
 P23 ROI.
 P27 ROI.
 P25 ROI.
 P29 ROI.
 (1996) 85A Crim R 481 at 486.
- Published Case Name:
R v CFD
- Shortened Case Name:
R v CFD
 QCHC 5
11 Mar 2020