The Queen v E[2009] QDC 427

DISTRICT COURT OF QUEENSLAND

[1] HIS HONOUR:  This is an application by the defendant E (represented in this application by Mr M Hibble of counsel) seeking the exclusion of a tape recorded statement between himself and Constable LB which took place on 6 March 2007 from 1:45 p.m. to 2:30 p.m. at the Mornington Island Police Station, purportedly pursuant to section 93A of the Evidence Act.

[2] The defendant was born in Mount Isa … and was 14 years old at the time of the interview (exhibit 12B, pp 3-4).

[3] I have canvassed the factual background of these proceedings at some length in my ruling in respect of co-defendants, R and T, delivered 13 August 2009 (R v R & T [2009] QDC 425).  I refer to that ruling, and note that it is relevant only to repeat that alleged offences occurred at Mornington Island … on 28 February 2007, and that P was the complainant.  The defendant in these proceedings was one of a group of male Aboriginal youths, alleged to have been involved in physical and sexual offences against that complainant.

[4] It is clear from the interview which is the subject of these proceedings in relation to E, that no caution was administered, nor was any support person present, at any time during the interview.  The interview contains clear statements against interest.

[5] Mr Cowen who appears on behalf of the prosecution, concedes that so much of the statement as follows after the bottom of page 10 of Exhibit 12B, should be properly excluded.  However, he argues for the retention (in admissibility terms) of the first portion of the interview (as I understand it down to the end of page 10, which he submits is the first clear admission against interest).  I note that those are not his specific words, but that's my understanding of his submissions.

[6] It is relevant at this stage to extract a short portion of the interview leading up to that section, which Mr Cowen submits is the initial admission against interest, commencing Exhibit 12B, page 10, at line 33.

[7] It is useful at this stage to extract an earlier passage in the interview which Mr Hibble submits, as I understand it, reflects (arguably) an admission against interest:- Extract commences from Exhibit 12B, page 6, line 40 and concludes at page 7, line 3.

[8] Constable LB gave oral evidence on the application.  His evidence was that when he arrived at Mornington Island from Mt Isa on 6 March 2007, he viewed only a statement of the complainant P, and the crime report (known as a CRISP report).  During the course of cross-examination, Constable LB viewed a version of the crime report (Exhibit 24), which was apparently printed out at a much later date than the time of the crime.  Constable LB was not prepared to concede that when he first viewed the crime report on or before 6 March 2007, that it named E as a suspect. 

[9] Constable LB gave evidence that the crime report process was able to be continually updated, and although he was unable to produce the crime report that he had read prior to interviewing E, he was adamant that E was not named as a suspect when he read the crime report that was then extant, prior to the interview.

[10] I found Constable LB's evidence on this issue unconvincing.  The Mornington Island Police Station occurrence sheet for 28 February 2007 (the date of the rape) which was completed by Police Officers FM, and ZH, nominated E as a "possible offender" (Exhibit 25).  Constable LB's own official police diary entry for 6 March 2007 listed E under the heading "Confirmed Suspects" (Exhibit 23).

[11] Constable LB claimed in cross-examination not to have seen Exhibit 25 prior to the interview with E, and to have written up his diary (Exhibit 23) after that interview.  Despite E’s admissions during the course of the interview, Constable LB continued to treat him as a witness rather than as a suspect.  Again, I found his assertions as to why he did not caution the child E in these circumstances to be singularly unconvincing.  Whether or not an interrogation of the police computer system could produce a version of the crime report as it existed on or before 6 March 2007, no such document has been placed before me on this application, so it is not possible to assess Constable LB's testimony against the relevant objective documentary evidence that he claims to have viewed at the relevant time.

[12] What was available to Constable LB, however, on his own admission, was the statement of P.  At paragraphs 14-22, P describes a sexual assault, including forced oral sex, occurring at "the caramel coloured shed", and she names Y specifically as an offender involved in that component of the overall incident.

[13] P then states (relevantly) the following at paragraphs 22-32 of her statement dated 2 March 2007: 

[14] A number of propositions, in my view, are immediately apparent:

[15] It follows that there has been a complete failure to comply with any of the relevant provisions of Police Powers and Responsibilities Act (PPRA) ss.414-421, 428, and Juvenile Justice Act s 29.  Consequently I find the statement was not voluntarily made (i.e. made in the exercise of a free choice whether to speak or to not speak), nor did it comply with Juvenile Justice Act s 29, and therefore should be excluded from admission, to any extent, in the trial of E on this indictment.

[16] This ruling of course obviates the need to consider whether the earlier comment by E at page 6 of the interview (which I heard as "for raping") is an admission against interest or simply an equivocal response indicating he was aware in general terms as to what the matter was that Constable LB was wanting to speak to him about.

[17] For completeness, I consider that the statement would also be inadmissible pursuant to my unfairness discretion.  E, at the time, was a 14 year old Aboriginal child in a remote indigenous community who provided what purported to be an Evidence Act s 93A statement, in circumstances where he was clearly and objectively a suspect, even confining the material to be considered in respect of that issue to P's statement alone.  In that respect, it was clear that corporately (in the sense of the Queensland Police Service as a whole), at least the police officers FM and ZH had nominated E as a suspect, but even taking into account the assertion by Constable LB that he was not aware of that nomination (a proposition which I find difficult to accept), he was clearly on any view of the statement of P, a suspect.  The absence of any caution and support person would render it unfair to admit that statement in evidence against E, and were it necessary, I would have ruled accordingly in respect of the unfairness discretion.