R v Parkinson[2006] QDC 57

DISTRICT COURT OF QUEENSLAND

HIS HONOUR: Lester Kenneth Parkinson is charged with two offences, both alleged to have been committed on the 26th of November 2004 at Palm Island. The first alleges that he and others, being riotously assembled together, unlawfully began to destroy a police station. The second alleges that he and others wilfully and unlawfully set fire to the building housing the Palm Island Police Station.

The defence has objected to the admissibility of an interview between police and Parkinson conducted on the 1st of December 2004 at the Palm Island Police Barracks which were then being used as a temporary police station, on the basis that it was not voluntary and, alternatively, that it should be excluded in the exercise of the discretion.

Parkinson is an Aboriginal aged 28. He was born in Townsville, but has lived on Palm Island for most of his life. He is unemployed and I doubt he could ever hold down meaningful employment.

He has been examined by Ms Renee McAllister, a psychologist, and she has provided a report, Exhibit 10. Parkinson's family background is characterised by extreme alcohol abuse and probable neglect. Most of his schooling was on Palm Island. He completed grade 10, but obviously did not pass it. From the age of 12 in grade seven he rarely attended school due to substance abuse. He said he was addicted to drugs, (marijuana, petrol and liquid paper) and lacked interest in schooling. At the age of 15 he stopped sniffing petrol and started injecting speed which he still does weekly. He said he could not read aloud the headlines of the local Townsville newspaper or "read time".

Testing using the Standard Progressive Matrices (SPM) indicated he is intellectually impaired having the mental ability of a less than average seven and a-half year old, and an intellectually impaired grade. The SPM is designed to test a person's mental ability by non-verbal methods. Parkinson presented with impaired cognitive functioning and understanding, and a much reduced ability to think clearly. He is considered to be at a disadvantage in comparison with members of the Australian community generally, and I think that is clearly so.

I have some reservations about the intellectual assessment of Parkinson by Ms McAllister. In a sense it was quite superficial, not extending beyond the SPM which is designed to test mental ability by only non-verbal methods. I think Parkinson is street smarter than his age as indicated by the SPM. A verbal assessment was not undertaken by Ms McAllister because she took the somewhat patronising view that such an assessment may not have been culturally appropriate for an Aboriginal such as Parkinson.

Nevertheless, hers is the only assessment I have and it was not seriously challenged by the Crown. In these circumstances I am really obliged to proceed on her results. The SPM is designed to provide an estimate of a person's ability to think clearly, to discern meaning and to digest information and make sense of it and respond. Parkinson's intellectual impairment is probably due to a combination of his mother's quite heavy use of alcohol during pregnancy, a head injury suffered at school (when he said he was struck with a baseball bat, knocked out and spent four days in hospital) and petrol sniffing and drug and alcohol abuse.

Ms McAllister said that she considered Parkinson did not present as a person who had verbal skills. She was able to get more information from him as her interview progressed by making her questions "a bit more simple". She said this required a change in her approach "rather than his verbal ability."

By reference to the police interview transcript (Exhibit 2) Ms McAllister was able to point to only four areas (on pages 3-4, 19, 20 and 21) where she thought Parkinson's answers may indicate that the questions were not understood. These areas did not include the caution or the questions following that.

I am unable to accept Parkinson's statements to Ms McAllister that he had consumed drugs and alcohol before the interview. Those statements are inconsistent with what he said in the interview (pages 5-6) and Ms McAllister could not determine which version was correct. The defence did not call Parkinson and the Crown did not require him for cross-examination on what he said to Ms McAllister.

On the 28th of November 2004, two days after the riot, Parkinson gave a witness statement to police. That statement is Exhibit 3. In that statement he said he saw a crowd of people throwing rocks at the Palm Island Police Station. He said he also threw about three rocks which hit the concrete wall of the police station.

On the 29th of November 2004 Constable Aaron Butler was tasked to further interview Parkinson. He went to the address given in Exhibit 3. Parkinson was there. He agreed to accompany police to the barracks for an interview. Butler said "he wanted to come in and speak to police". He was placed in the back cage of a police vehicle. The door was closed and could not be opened from the inside.

For the purposes of the interview Constable Butler treated Parkinson as a suspect. The introductory parts of the interview, by reference to the transcript Exhibit 2, are as follows:

"BUTLER:Ok. Todays date is the ah first of December 2004. Current time is approximately 10.55. We're at the ah Palm Island Police ah Barracks conducting a record of interview between myself Aaron Butler I'm a plain clothes constable attached to the Townsville CIB. I'll get my partner here to identify himself

PRICE:Detective S/Constable Garth Price 9891 Townsville CIB.

BUTLER:Ah, Lester what's, can you just tell us your full name, your date of birth and where you live.

PARKINSON:Oh, Lester Kenneth Parkinson 13th of the 10th I live at Phillips Lane Palm Island

BUTLER: Now, do you want to do an interview here mate. Um, Lester did you come here today of your own free will

PARKINSON:Yeah

BUTLER:Yeah, Ok. Have um I or any other police officer forced you to come here

PARKINSON:No

BUTLER:No. Do you agree that we picked you up earlier from your house

PARKINSON:Yes

BUTLER:And you told us you wanted to tell us some things

PARKINSON:Yeah, Yeah

BUTLER:What we wanted to speak to you mate about Ok but before I do

PARKINSON:Yeah

BUTLER:What I, well I have to give you just a bit of a caution Ok that caution is you do have the right to remain silent

PARKINSON:Ok

BUTLER:It means you don't have to say anything, or answer any of my questions or Garths questions unless you wish to do so, however anything you do say and any questions you do answer are allowed to be used in court, do you understand that

PARKINSON:Yes

BUTLER:You do also have the right to telephone or speak to a solicitor or legal representative and inform that person that you are being questioned in relation to an offence and have them present during questioning if you wish

PARKINSON:Um

BUTLER:Ok. You don't have to have them present if you want to you can. You also have the right to telephone and speak to a friend or relative and have that person present for questioning if you wish

PARKINSON:No

BUTLER:Ok. If you wish to have any of these people present just let me know and ah so be it and we'll get them present for you ok

PARKINSON:Yep

BUTLER:Mate um on a personal note where'd you go to school

PARKINSON:Ah, I went to Central Station ah State School in North Ward

BUTLER:Yeah

PARKINSON:I started there then I come back to Palm and I just stayed here

BUTLER:What, what grade did you go to over there at Palm

PARKINSON:Oh when I finished here to grade 10

BUTLER:Grade 10

PARKINSON:Yeah

BUTLER:Good school

PARKINSON:Oh, not really

BUTLER:No you didn't like it too much

PARKINSON:No

BUTLER:Why's that

PARKINSON:I didn't learn much

BUTLER:Yeah

PARKINSON:Totally fucked (indecipherable)

BUTLER:No, you're right mate. So when did you finish that, what year, how long ago

PARKINSON:Oh, Grade 10, then I went, I went back out to Hughenden repeated grade 10 again

BUTLER:Oh yeah so you did grade 10 twice

PARKINSON:Yeah

BUTLER:Have you been to TAFE

PARKINSON:No

BUTLER:No

PARKINSON:Never done any TAFE no, nothing much

BUTLER:How do you go at reading

PARKINSON:Ah a bit (indecipherable)

BUTLER:Can you read the um Townsville Bulletin

PARKINSON:No, not, oh I can, I can understand some but I can't you know, like, pronounce the words and that, but I can understand what it means and all that

BUTLER:Yeah, um, now what about verbally

PARKINSON:Verbally

BUTLER:Well can you understand what I was speaking to you about now, do you know what's going on

PARKINSON:No, no

BUTLER:What part don't you understand

PRICE:You can talk alright

PARKINSON:Talk, yeah, yeah I can, yeah

BUTLER:And you understand

PARKINSON:Yeah, I understand and talk

BUTLER:I tell you what, if myself or Garth

PARKINSON:Yeah

BUTLER:If we um use a word that you don't understand

PARKINSON:Mm

BUTLER:Just ask us

PARKINSON:Ok. yep

BUTLER:And we'll, we'll, we'll talk about it

PARKINSON:Yep

BUTLER:Well we'll explain it to you, have we used any words that you don't understand, haven't understood today

PARKINSON:Oh, not just one, one there, just come up there verbally ah

BUTLER:Which one

PARKINSON:Verbally

BUTLER:Verbally

PARKINSON:Yeah

BUTLER:That's just speaking

PARKINSON:Oh

BUTLER:Ok. So what I mean, if we talk to you, and you don't understand what we ask

PARKINSON:Mm

BUTLER:Let us know

PARKINSON:Ok, not a problem

BUTLER:Do you feel you're disadvantaged at all

PARKINSON:No

BUTLER:No, nope, ok. Ah Garth

PRICE:(indecipherable) Mate because we're talking here

PARKINSON:Yeah

PRICE:(indecipherable) and we're talking about possible offences that might've occurred

PARKINSON:Yeah

PRICE:You have some other rights and they include ah

PARKINSON:Yeah, yeah, yeah

PRICE:Have you gone through those. That you have the right to have a friend or relative here

PARKINSON:Well, I was going to get me mum to

BUTLER:Ah no he can't have (indecipherable)

PRICE:That's alright buddy, sorry I didn't hear

BUTLER:Yeah I already asked you about if you wanted a solicitor Everyone talking at once

PRICE:Cool, that's alright mate

BUTLER:You feel comfortable doing this yourself

PARKINSON:Oh, yeah no dramas"

Towards the end of the interview (Exhibit 2, page 19) Parkinson said that he could not "read time". At the end of the interview the following conversation took place:

"BUTLER:Ok, no worries, look um, I'm now going to stop the interview, going to stop speaking to you about this now

PARKINSON:Um

BUTLER:Now the time, you see on my watch there, what time's that

PARKINSON:0 2 (indecipherable) 15 minutes past 10

BUTLER:Past 11

PARKINSON:11, yeah

BUTLER:15 minutes past 11, that's right

PARKINSON:Mm

BUTLER:And um are you happy with the way police have treated you here today

PARKINSON:Yeh

BUTLER:Been pretty good

PARKINSON:Yeah

BUTLER:Got any complaints

PARKINSON:No, just wanted to just give myself up

BUTLER:Now that's good. Now, have I, this detective here, or any other police officer, held out any threat

PARKINSON:No

BUTLER:Promise or inducement for you to take part in this

PARKINSON:No

BUTLER:What I'll do, is I'll just explain threat, promise or inducement to you

PARKINSON:Yeah, oh, I know what it is, I been in and out of prison and all that

BUTLER:Can you tell me about a promise, what do you think a promise is

PARKINSON:Promise, ah, learn to keep things to yourself, and don't tell anybody

BUTLER:Mm, Did I promise you something in ret, if you did, did this interview

PARKINSON:Oh

BUTLER:Did I promise you um

PARKINSON:No mate

BUTLER:(indecipherable) a new car or something like that

PARKINSON:No, nah, nah

BUTLER:Or I promise I wouldn't arrest you if, if, if um

PARKINSON:No, no, no

BUTLER:I we spoke about this

PARKINSON:No

BUTLER:Ok. Now have I threatened you in any way

PARKINSON:No

BUTLER:Have I said hey

PARKINSON:No

BUTLER:I'm going to give you a flogging or

PARKINSON:No

BUTLER:Or I'm going to growl at you

PARKINSON:No

BUTLER:Or anything like that

PARKINSON:Nup

BUTLER:And inducement have I um ah you know have I said if you do this for us we'll do this for you

PARKINSON:No

BUTLER:No. So everything here you've said is your own free will

PARKINSON:Yep

BUTLER:And you've understood everything

PARKINSON:Yep

BUTLER:Yep, and it's all been the truth

PARKINSON:Yep

BUTLER:Ok. Garth

PRICE:That's fine, no, no further questions

BUTLER:Alight ah mate, thanks for taking the interview and, and I'll now stop it Ok

PARKINSON:Yep, thank you"

Having listened to the audiotape of the interview I think there is substance in the criticism levelled by Mr Walters, who appeared for Parkinson, that in the introductory parts of the interview Butler was speaking quite fast compared to later in the interview, and that it would have been extremely difficult for a person such as Parkinson (with his limited intellect and capacity to comprehend) to adequately absorb, understand and consider what was being said to him and what his response should be.

In his evidence at the committal proceedings Butler said of Parkinson that he thought he was very well spoken. He said the fact that he queried him about the meaning of "verbally" indicated to Butler "a substantial level of education". Butler did not consider him to be disadvantaged. He said he understood the questions and answered them in a coherent manner. He had previously supplied the statement Exhibit 3 and was educated to grade 10 level. He appeared to understand the caution so he was not asked to explain what it meant. Butler's opinion was that he understood what was happening and understood his rights. Butler was aware that solicitors were on the island at the time of the interview.

Butler said that he excluded Parkinson's mother from the interview because she may herself have been a rioter. He did not know, but thought she may have been. His information was that the crowd that gathered around the police station included elderly women and Parkinson's mother was an elderly woman. He did not speak to her because he was not investigating her. He said that Parkinson did not wish anybody else present. "He was happy to go on and do the interview by himself." At the conclusion of the interview Butler arrested Parkinson.

Detective Senior Constable Garth Price who was present during the interview said in relation to the point in the interview where Parkinson mentioned his mother that he, Price, had moved away from the interview table to close a window or a door and when he returned Butler told him that he had already spoken to Parkinson about that and "that issue had been canvassed already", and that Parkinson did not want anyone present for the interview. Price was not present when the issue was first mentioned. He said Parkinson did not appear to be a disadvantaged person judged from the way he was interacting and speaking. He showed no signs of distress.

One of the purposes of the Police Powers and Responsibilities Act is to "ensure fairness to and protect the rights of persons against whom police officers exercise powers" under the Act (section 4(e)). Parliament intends that police officers should comply with the Act and if they contravene the Act that may carry disciplinary and penal consequences (section 5 and R v. Cho, [2001] Q.C.A 196 at paragraph [6]).

Section 249 of the Police Powers and Responsibilities Act (Right to communicate with friend, relative or lawyer) and section 34(1) of the Responsibilities Code (Schedule 10 of the Act) may have been initially complied with in a relatively cursory manner except that it is not clear that Parkinson in fact knew what was going on or what he could or could not do. When asked if he did he said, "No, no". Butler did not then see if he had in fact understood his earlier questions based on section 249.

In this respect section 34(2) of the Responsibilities Code was not complied with. Butler would, in my view, have reasonably suspected that Parkinson did not understand the advice he had given him in which case he should have asked him to explain in his own words the meaning of that advice, and to further explain to him that advice (section 34(3)).

It was the responsibility of Butler pursuant to section 249(1) to ensure that Parkinson understood that there was an important decision to be made and that that decision needed to be made decisively one way or the other (Keane JA, R v. LR [2005] Q.C.A 368 at paragraph [48]). I am satisfied that Butler did not satisfactorily comply with section 249(1).

Notwithstanding that Butler said he knew solicitors were on the island, he did not also comply with section 251 of the Police Powers and Responsibilities Act notwithstanding that it was clearly arguable that Parkinson may have been in custody at that time. That section required him to inform Parkinson that a legal aid representative would be notified and to notify such a representative. He did neither.

Having said (page 2) that he did not wish to contact a solicitor, friend or relative, section 36(4) of the Responsibilities Code required Butler to inform Parkinson that he could have a support person present during the questioning. In doing this Butler was required to substantially comply with section 36(5) of the Responsibilities Code. He did not do so.

Both Butler and Price effectively said they did not consider Parkinson to be at a disadvantage in comparison with members of the Australian community generally. I am unable to accept their evidence as to this. In my opinion it would have been abundantly clear to them that he was in which case section 36(6) of the Responsibilities Code required them to "arrange for a support person to be present". This was not done and Parkinson, in my view, remained at a disadvantage notwithstanding the evidence given by both police officers.

The provisions of chapter 7 of the Operational Procedures Manual, Queensland Police Service, are even clearer. As an Aboriginal, Parkinson was to be considered as a person with "a special need because of cultural and sociological conditions" (section 6.3.6). He clearly met this description. He was not, in my view, "capable of looking after and managing his own interests" (section 6.3.2). The interviewing police were required to take whatever action was necessary to compensate for his position of special need and to comply with relevant legislative requirements (section 6.3.2 and section 6.3.3).

Such measures include obtaining the assistance of an independent or support person (section 6.3.3) to assist Parkinson overcome his condition of special need and safeguard his rights (section 6.3.4). He was, in my view, clearly in need of a support person and that should have been obvious to the interviewing police. They should have arranged for such a person to attend the interview. The absence of such a person clearly perpetuated an unbalanced and disadvantageous situation so far as Parkinson was concerned. I doubt that his mother would have been much help even if she had been able to attend. According to what Parkinson told Ms McAllister, his mother was/perhaps still is an alcoholic. He said he was "raised by his grandmother due to his mother being an alcoholic".

Having refused to allow Parkinson to have his mother present, the interviewing police should have enquired whether Parkinson wanted someone else and at least arranged for that person to be present. In any event a support person (whether known to Parkinson or not) was in the circumstances required and the attendance of such a person should have been arranged. It was unfair to Parkinson not to do so. Without such a person being present Parkinson remained at a significant disadvantage and he was not "capable of looking after and managing his own interests", and he remained in a position of disadvantageous special need.

In my view the cumulative nature of the breaches of the statutory and procedural requirements to which I have referred render it unfair to Parkinson to admit the interview against him, and I would exercise my discretion to exclude it.

In these circumstances it is not necessary that I decide whether the circumstances were such that a person of the limited intellect of Parkinson would have been so overborne by the way the interview was conducted that his answers could not be said to have been voluntarily made in the sense that he was speaking in the exercise of a free choice to speak or be silent.

The end result is that the interview will be excluded.