R v MFP[2023] QCHC 23

CHILDRENS COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application to exclude from evidence a record of interview conducted by police on 12 August 2022 with the applicant, then a 16 year old boy. Material was filed by the parties and three witnesses gave evidence on the application. The parties presented oral and written arguments.

Background

2. [2]
   The applicant child was charged with seven counts of indecent treatment of a child under 16, two counts of attempted rape and one count of rape.  The offences are alleged to have occurred between May and July 2022.  It appears that the applicant was 15 at the time of the alleged commission of the first five counts, 15 or 16 at the time of the alleged Count 6, and 16 for the remaining counts.  The allegations are of sexual offences committed against two separate complainants.  The complainant for the first five counts was a 12 year old boy, and for the remaining counts was a 14 year old girl.  The applicant and the complainants were known to each other, having attended the same school.  The male was a friend of the applicant’s younger sister and knew the applicant through her.  The female complainant and the applicant had a relationship for a relatively short time, apparently in June and July of 2022.
3. [3]
   The allegations concerning the male complainant include procuring the complainant to touch his penis; attempting to have the complainant perform fellatio on him; and rubbing his penis against the complainant’s buttocks.  In relation to the female complainant it is alleged that the applicant procured her to send him photographs of herself either in underwear or unclothed; orally penetrating her; having her watch him masturbate; procuring her to lick ejaculate from his penis; and trying to pull her shirt up and gripping and rubbing her buttocks.
4. [4]
   The complainants disclosed the alleged offending to police on 28 July and 5 August 2022 respectively.  Police subsequently attended the applicant’s house, apparently with the intention of executing a search warrant, however the family were absent.  Then on 12 August 2022 at about 5.15 pm the police attended the house and executed a search warrant.  At the conclusion of that process, which was partially recorded on body-worn camera footage, the applicant with his mother attended the Mango Hill Police Station and participated in a recorded interview.  It is this interview which is sought to be excluded.  The prosecution have indicated that it is not intended to attempt to introduce the recording of the search warrant process into evidence.
5. [5]
   During the interview the applicant denied most of the offending although saying that some sexual activity had occurred which was consensual and initiated by the complainants.  He admitted asking the female complainant to send him sexually explicit photographs and he did receive some.  These have been deleted and apparently were not discovered by police on any of the applicant’s electronic devices.
6. [6]
   The mixed nature of the interview does not prevent its admission; the exculpatory and inculpatory statements together are elements of the so-called “mixed statement” which is thus admissible; Nguyen v The Queen (2020) 269 CLR 299.

Interview not Voluntary

7. [7]
   The first basis for the exclusion is that the interview is not demonstrated to have been voluntary, in breach of s 10 of the Criminal Law Amendment Act 1894.  Reference is also made to s 416 of the Police Powers and Responsibilities Act (PPRA), prohibiting police from obtaining a confession by threat or promise.  The essence of this argument is that the recorded interview was obtained improperly by pressure to attend the police station under threat of arrest.  Reference is made to Collins v R (1980) 31 ALR 257 at 307 for the proposition that conduct of police before and during such questioning fashions the circumstances in which confessions (in this case, admissions) are made, as to whether a confession is voluntary.  Attention should be focused on the will of the person confessing, in the context of the age, background and psychological condition of each such person and the circumstances of the interview.  A careful assessment is required of the effect of the actual circumstances of a case on the will of the particular, in this case, child. 

Discretionary Exclusion

8. [8]
   Further, it is argued that if the interview is admissible in law, there are reasons for its discretionary exclusion (see s 130 of the Evidence Act 1977 (Qld)).  It is said that the caution which was given was deficient in that it did not in terms refer to court proceedings; thus it was unclear that the applicant properly understood his right to silence; there was an unsatisfactory discussion as to the applicant’s expression of wishing a lawyer to be present, and this was occurring in circumstances where there was no particular urgency for the interviewing of the applicant child; there was lack of clarity about the exact nature of the charges being investigated; and the interviewing of the then 16 year old child for 2 hours on a Friday night was inappropriate, particularly in the aftermath of the relatively stressful search warrant process.
9. [9]
   The parties have helpfully referred to R v CFD [2020] QCHC 5 in which the President discussed many of the applicable principles.  These include 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.”

10. [10]
    Importantly, the Police Powers and Responsibilities Regulations require police to give the support person information in the approved form about their role 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 (Police Powers and Responsibility 2012 (Qld) Regulations Div. 3, Reg. 34).
11. [11]
    The Youth Justice principles as set out the Youth Justice Act are also relevant.  The Charter of Youth Justice principles, in Schedule 1 of the Act, provides relevantly:

“2. The youth justice system should uphold the rights of children, keep them safe and promote their physical and mental wellbeing.

….

3. 4.
   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.”

12. [12]
    Section 418 of the PPRA required police, before questioning, to inform the child he may telephone or speak to a lawyer of his choice and arrange, or attempt to arrange their presence for questioning.
13. [13]
    It is also relevant that 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 a conversation will not be overheard.  Further, the DERIE Manual (Digital Electronic Recording of Interviews and Evidence) has a checklist for interviews of suspects.  If a support person is required to be present, the police should ensure that the person has read and understood Form 36.  The manual sets out 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?”

14. [14]
    Thus, as the President sets out, before interviewing a child the police must ascertain that the child:

    1. is there of his own free will;
    2. has a support person of his choosing with him;
    3. that the support person understands their role;
    4. that the child understands his right to silence;
    5. that the child understands the consequences of waiving that right; and
    6. that the child understands his right to obtain legal advice.

The Applicant / Voluntariness

15. [15]
    In the present case, the applicant was 16 years old at the time of the interview.  The evidence is silent as to whether he had had any previous contact with the police.  The evidence is, in a clear exchange at the commencement of the interview, that he was there of his own free will. He gave evidence on the application and, although displaying, in my assessment, at least an average range of intelligence, presented as somewhat troubled and during cross-examination had to request a break in the proceedings.  He gave evidence that he did not understand the nature of the interview process, however retreated somewhat from this when presented with the transcript, and at one point a portion of the recording, of the interview.
16. [16]
    In the interview he was able to respond to questions coherently and sometimes at length, putting forward his largely exculpatory version. The right to silence was explained more than once. Whilst the applicant points to the possibility of him being arrested had he not accompanied police, in my view the respondent has established that the interview was, in the relevant sense, voluntary. Thus it is prima facie admissible, which raises the question of discretionary exclusion.

Waiving Right to Silence

17. [17]
    The right to silence was explained. However, as to the consequences of waiving that right, this case shares with CFD the feature of the applicant not having been told that what he said may be told to a court, as the manual requires. This may have more impact in the present case, where the pre interview conversation with the mother had canvassed possible court diversion; thus it may have been unclear, at least to the support person, where this process was headed. Either court or another process was possible; therefore the omission of reference to a court is important.

Right to Legal Advice

18. [18]
    Further, as to his understanding of the right to obtain legal advice, Plain Clothes Constable Ellis said that before the interview the applicant and his mother said they wished to get legal advice. Early in the interview he was told he could telephone or speak to a lawyer, to arrange or attempt to arrange for the lawyer to be present; and questioning could be delayed for that purpose. Yet this was immediately followed by him indicating a desire to call, or have present, his lawyer (or possibly querying the right to do so; the inflection is somewhat nuanced, although the distinction between the two possibilities is in my view not crucial to the result).
19. [19]
    The response was “no… not a lawyer, just a relative”. He may have understood (or at least was enquiring about) his right to legal advice, yet it seems to have been denied, in the context that police had tried to call Legal Aid unsuccessfully (the applicant was not given the opportunity to make his own enquiries). He was then asked, after repeating that police had spoken to mum, “there’s no other lawyer or anything that you wish to advise, prior to questioning?” The applicant said no. He was told to let them know if he changed his mind. The questioning immediately followed. These exchanges do not demonstrate his understanding and ability to exercise his right to legal advice.
20. [20]
    The PPRA in ss 418 and 419 provides for a right to telephone or speak to a lawyer and to arrange for them to be present during questioning, provided that questioning is not delayed unreasonably (s 23 of the Police Powers and Responsibilities Code is to similar effect). It is not clear that any delay here for the purpose would have been unreasonable (and I do not understand the respondent to argue that it was). It was a Friday night. Lawyers were understandably hard to obtain, but there do not seem to have been any pressing exigencies. The police apparently had their information from the complainants. There is no suggestion evidence was likely to be lost or attenuated by a delay, even until the following Monday; Plain Clothes Constable Ellis admitted this lack of urgency in evidence.
21. [21]
    Thus it does not appear that the right to arrange for a lawyer to be present during questioning was accorded to the applicant. There was no real attempt to allow him the legal advice he had sought; compare R v Bennetts [2017] QSC 181 at [73] – [78]. The obligation to delay questioning for a reasonable time to allow the applicant to speak to a lawyer was not complied with.

Support Person

22. [22]
    The investigating police complied with the mandatory requirement of a support person, his mother, being present for the interview process.  The child was with his mother for a significant period of time prior to the interview, including the time during which she drove them to the police station.
23. [23]
    The investigating officer had a discussion with the mother prior to the interview.  This seems to have included, appropriately, some information as to the nature of the allegations being investigated.  There was also the discussion as to possible diversion of the matter from the court process, depending upon the outcome of the interview.  Form 36 was given to her, however any explanation of the nature of the contents thereof seems to have been very limited.  The applicant’s mother gave evidence on the hearing of the application and essentially indicated very little understanding of the process.  She did not recall being given the form, although the evidence seems reasonably clear that that was done.  During the interview process, which was lengthy, she did not intervene in any significant way and remained mostly passive.
24. [24]
    A copy of the Form 36 is an exhibit in these proceedings.  Its language, with respect to the author, is somewhat legalistic and I embrace the description given by the President in paragraph [14] of R v CFD.  In my view it is obviously desirable that the language be redesigned to be much simpler and more direct. It could for example, start with dot points setting out that the support person should

3. -
   Ensure fair questioning

3. -
   Prevent oppression, fear or dominance by a police officer

3. -
   Avoid the person being overborne or oppressed; and act in their best interests.

25. [25]
    As in CFD, the police apparently made no enquiry as to the applicant’s mother’s reading ability or level of education and she was not asked as to her comprehension of the responsibilities as described in the form.  She was not asked during the recording of the interview about these aspects, merely that she had been given the form, as to which she had no questions.  In her evidence on the hearing of the application she essentially said that she did not understand. In my view the respondent has not demonstrated she understood her role. It is not an extreme case such as CFD; nevertheless this feature is not established on the evidence.

Conclusion

26. [26]
    It is therefore concluded that the overall treatment of the applicant was unfair in that the warning did not include that the answers given could be told to a court, contrary to the DERIE manual; his right to legal advice and having a lawyer present or to have the questioning delayed for a reasonable time to do so was not accorded him; and the support person, doing her best, did not understand, and therefore was not in a position to fulfil, her role. These may not have been flagrant nor deliberate breaches, however the effect, nevertheless, is that it would be unfair to use the recorded interview against the applicant (Van den Meer v The Queen (1988) 82 ALR 10 at 26). Thus the application is successful and the interview is excluded.