The Queen v JT[2001] QDC 36

CRIMINAL JURISDICTION

JUDGE C F WALL QC

THE QUEEN

v.

JT

TOWNSVILLE

DATE 08/02/2001

DAY 2

EXTRACT OF PROCEEDINGS

HIS HONOUR: Objection has been taken by the defence to the admission of a recorded interview between the police and the accused. It is objected to on two bases, one that what the accused said was not said voluntarily, and the second basis relies upon the exercise of the discretion, should it be concluded that what he said was said voluntarily in the sense of being said in the exercise of a free choice to speak or remain silent.

The accused, who is a child, had just turned 16 years of age when, on 10 September 2000, Senior Constable Elliott of the Townsville Juvenile Aid Bureau, as a result of receiving certain information, attended at about 8.55 a.m. a residence called “Arana House”, 69 Allen Street, South Townsville. This was a “share house” of some sort.

The child was located in the kitchen area and, according to the statement of Senior Constable Elliott, “After a short conversation, he was detained in accordance with the Police Powers and Responsibilities Act.”

The short conversation was recorded on a hand-held tape recorder, and it includes this conversation:

He was then taken to the Townsville Police Station, arriving there at about 9 a.m., and according to the statement of Elliott, he was then lodged in a holding cell. Elliott says that he and Detective Sergeant Cheryl Scanlon who had accompanied him, then left the station and made a number of inquiries in relation to other matters “we were investigating, relating to the defendant child.”

Elliott's statement continues:

The child replied with words to the effect of, “Just a justice.”

Elliott says that he then made arrangements for a Justice of the Peace to attend the police station, and about 11 a.m., Robert Rogers JP attended. Elliott spoke briefly with Mr Rogers, after which Mr Rogers then spoke with the child in a separate room.

The conversation between Mr Rogers and the child commenced at about 11 a.m. The child had therefore been in the holding cell at the police station for some two hours.

Mr Bassett, for the child, contends that the detention of the child was unlawful because it was not authorised by the Police Powers and Responsibilities Act. I think there is substance in that submission.

The decision of Judge Hoath in Clark v. Bristow unreported, 17 November 2000, Brisbane, No D37 of 2000 provides some support by way of analogy for this submission. That decision was under the old Police Powers and Responsibilities Act, which was somewhat differently worded than the current Act, but I think the thrust of what his Honour had to say applies in this case.

I agree with what his Honour said at paragraphs 8 and 9 of his judgment as follows:

Those remarks must be read today in the light of the provisions of the Police Powers and Responsibilities Act 2000 but I do not consider that that Act allows police to simply arrest or detain a person for questioning.

The provision relied upon by Ms Duve for the Crown is section 234 of the Police Powers and Responsibilities Act which, so far as is relevant is in the following terms:—

Section 234 is in Chapter 7 of the Act, Part 2. Division 1 of Part 2 deals with the application of Part 2 and section 229, which is in Division 1 provides as follows:—

In my view, section 229 governs the extent to which section 234 applies to a particular case and not the other way around as was submitted by Ms Duve. The powers set out in section 234 (1) can only be exercised in the case of persons to whom section 229 has application.

The child here was not in custody following his arrest for an indictable offence when he was taken from Allen Street to the police station and subsequently interviewed. Likewise, he was not in lawful custody for an offence that had not been decided. It was submitted by Ms Duve that the words “offence that has not been decided” covered a situation where police were investigating an unspecified offence, however, in my view, I think those words mean an offence which the person has been charged with and which has not been determined by a Court.

It is not the case in my view that section 234 should be first looked at, and then relying on that, the person be fitted into section 229, rather section 229 governs whether section 234 applies.

So far as section 234 is concerned, the child was not in custody following an arrest for an indictable offence; he had not been arrested or charged with any offence at the time he was taken from Allen Street to the police station. Further, subparagraph (b) of subsection 1, I think applies to detention for questioning about an offence other than the offence for which a person is in fact in lawful custody for. I am reinforced in that conclusion by the terms of subsection 3.

It seems to be implicit that for the purposes of section 234 (1), the person is already in lawful custody, either for the offence for which the police wish to detain and question him about, or for another offence, and that was not the case here. The child was therefore unlawfully taken into custody, and his detention at the hands of the police between 9 a.m. and the time he was charged with a number of offences, including the two now before me following the conclusion of the interview at 1.05 p.m., was unlawful.

Reliance was placed by the Crown on the role played by Mr Rogers, the Justice of the Peace. Mr Rogers gave evidence and I found him to be a good-hearted and well-meaning individual, however, I do not think he fully understood in all respects, what his role was, certainly so far as it related to a child. He said that his role was to see that the child “gets a fair hearing and to see that all his rights get preserved”.

He made no inquiries at all of the position of the child's parents, or whether the child wanted them present, or whether the police had advised his parents of the position of the child. I am told that the child is a ward of the State, over whom the Chief Executive of Families, Youth and Community Care exercises certain powers. I am also told that his mother resided in a town other than Townsville.

Mr Rogers said he made no inquiries of the child or the police as to what the child's family background was, or what his level of education was. He also said, somewhat at odds with the evidence I have just referred, that he knew his parents had not been notified, and did not ask him or the police where they were, or ask him where he was living.

He came to the police station armed with his Justice of the Peace manual, and as if by rote, he followed the procedures set out in that manual. I do not think those procedures were designed to cover all situations, and certainly not the role of somebody in Mr Rogers' position, when dealing with a child, even if the child could be said to be somewhat street-smart.

Mr Rogers said he understood the police brought the child to the interview room from a holding cell. He understood this from what the police told him. He did not know how long he had been in the cell, or how long he had been at the police station. He did not know how he came to be at the police station - whether he had been forced to go there, or went voluntarily. He said, “I wasn't 100 per cent sure whether he had been arrested or not. I didn't inquire of the police whether he had been arrested. I thought he would know himself whether he had been arrested.”

He said that he told the child that he could go, that is, leave the police station if he wanted to, if he was not under arrest, but he said, “I didn't know if he was under arrest or not.”

Practically speaking, I am satisfied that the child would not have been allowed to go, even having been told by Mr Rogers that he could go. The police were proceeding erroneously on the basis that they had power to detain him for questioning for at least eight hours under section 234 of the Police Powers and Responsibilities Act and I am satisfied that there is no way at all that they would have let him go had he wanted to.

The interview which took place involved questions about the offence for which the child had been detained as well as, and I am reading here from page 2 of the transcript of the interview:

Mr Rogers said that before the interview started, he knew it was to be about unlawful wounding and some other matters, but he did not know any details of those other matters. His opportunity to advise or assist or inform or counsel the child about his rights, situation and position, was therefore limited.