DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application by the defendant B seeking that an interview between himself and PCC LB, conducted at the Mornington Island Police Station on 7 February 2007 be ruled inadmissible.

2. [2]
   The defendant was born on 29 May 1990 (Exhibit 13B) and was therefore a “child”^[1] at the time of the interview.

Background

3. [3]
   I have previously canvassed the factual background of these proceedings at some length in my ruling in respect of co-defendants R and T, delivered at the Mount Isa District Court (ex tempore) on 13 August 2009^[2]. 

4. [4]
   It is relevant in respect of this application to repeat only that the alleged offences occurred at Mornington Island on 28 February 2007, and that P was the complainant.  The defendant on this application was one of a group of male aboriginal youths alleged to have been involved in physical and sexual offences against the complainant. 

5. [5]
   The defendant B admitted during the course of the impugned interview … to being present during the offences, holding the complainant to prevent her head hitting the concrete, telling others to get condoms, telling other co-defendants that he wanted to have sex with the complainant, and warning co-defendants when the police attended.^[3]

The Law

Voluntariness

6. [6]
   I refer to and adopt my exposition of law in respect of voluntariness of admissions, as set out in my ruling in relation to co-defendants R and T delivered (ex tempore) at Mount Isa District Court on 13 August 2009^[4]. 

Unfairness Discretion

7. [7]
   Similarly, I refer to and adopt my exposition of the law in respect of the unfairness discretion, as set out in my ruling in relation to co-defendants R and T delivered (ex tempore) at Mount Isa District Court on 13 August 2009^[5]. 

Records of interview – juvenile offenders

8. [8]
   I refer to and adopt my exposition of the law in respect of records of interview between police and juvenile offenders, as set out in my ruling in respect of the co-defendant L delivered (ex tempore) at Mount Isa District Court on 13 August 2009^[6].

Conclusions Re Admissibility of Record of Interview

9. [9]
   The admissibility of the record of interview falls to be considered firstly in respect of voluntariness (i.e. whether the defendant B “has spoken in the free exercise of a choice to speak or remain silent”^[7]), in respect of which the prosecution bears the onus, secondly in respect of compliance with the “support person” provisions of Juvenile Justice Act s 29, and thirdly, if necessary, pursuant to the unfairness discretion, on which the defendant bears the onus.

10. [10]
    LR, the defendant’s “grandmother” (within the extended sense of that relationship in the defendant’s aboriginal family) was present as a “support person”^[8].  In fact, LR is not related to the defendant by blood, but has played a significant role in raising the defendant. …

Voluntarily

11. [11]
    I have reviewed the video record of interview, and it is clear the defendant was not asked to explain the “right to silence” caution in his own words^[9] even though he was an aboriginal child in a remote indigenous community, about to be questioned in respect of serious allegations.  It was disturbing during the administration of the cautions to hear PCC LB describe the caution in respect of a relative, friend or lawyer as sounding “like a big waffle”^[10], a description which (although perhaps unintentionally) clearly diminished the importance of the caution being administered.

12. [12]
    In my view it was, in the circumstances of the caution administered in this interview, incumbent on the interviewing police officer not to accept either the defendant’s monosyllabic answers (interspersed I noted with lengthy pauses), nor LR’s assessment that the defendant understood the cautions (including the right to silence) as being sufficient evidence that the defendant did, in fact, understand the cautions.

13. [13]
    It is not at all clear, for example, that the defendant understood what a solicitor or lawyer was, despite PCC LB’s attempts to provide an explanation.

14. [14]
    It was by no means clear to me from Exhibit 13B that the defendant understood his right to contact a lawyer, and although he was told that [questioning would] “be delayed for a reasonable time”^[11] that was followed immediately by the interpolation “that all sounds like a big waffle” and the delay for questioning issue was not subsequently addressed, even though PCC LB sought to elucidate further whether the defendant knew what a lawyer was.

15. [15]
    This was, in my view, yet another situation, where an aboriginal child, with poor literacy skills, in an interview room with a “support person” who (in this case) was directly related to the complainant, and was not appropriately briefed (whether by documents or otherwise), was therefore not able, as an interviewee, to exercise a free choice whether to speak or to remain silent. That, as I indicated in my ruling in respect of the defendant L delivered (ex tempore) at Mount Isa District Court 13 August 2009^[12], is a threshold question, and what occurs subsequently in the interview, including assurances of understanding by the “support person”, and admissions against interest by the defendant, does nothing to render the interview “voluntary”.

16. [16]
    It follows therefore that I am not persuaded, on the balance of probabilities, that the interview between the defendant B and PCC LB, was given voluntarily, and therefore should, on this ground alone, be excluded from evidence at the trial of the defendant on this indictment.

Support person

17. [17]
    LR was not provided with any documentation in respect of her role as a support person^[13], contrary to the legislative requirements^[14].  Neither did LR receive any form of oral briefing on her role from PCC LB.  LR is an employee of Queensland Health, and has been an elder in the Community Justice Group since it was formed in 1996 or 1997.  On court days the Community Justice Group sits in the Court, and the Magistrate asks them if they have anything to say.  The Community Justice Group talks with defendants, tells them what to do, and plays a role in remanding defendants.  The defendant B was aware of LR’s role as an elder in the Mornington Island Community^[15].

18. [18]
    LR is also an aunt (by blood) of the complainant P … and they are close^[16].

19. [19]
    LR was, in my view, an authority figure on Mornington Island, was not an appropriate support person because of her links of close kinship and relationship with the complainant, and had not received the required documentation from PCC LB or any form of oral briefing.

20. [20]
    Some basic and straightforward enquiries by PCC LB with LR prior to the interview should have identified, in particular, the issues in respect of LR’s status on Mornington Island, and her links of kinship and relationship with the complainant.  Appropriate assistance to the defendant to enable him to exercise his right to legal advice might well have revealed the problems prior to any formal interview.

21. [21]
    Accordingly, I consider that LR (with all due respect to her) was not a “support person” and her presence at the interview therefore failed to satisfy the provisions of Juvenile Justice Act s 29(1). 

22. [22]
    I am not satisfied that there was “a proper and sufficient reason for the absence of a support person at the time”^[17] and I do not consider “in the particular circumstances, the statement should be admitted into evidence”^[18].

Unfairness discretion

23. [23]
    Although I have reached conclusions to exclude the interview based upon both voluntariness and the lack of a “support person”, I consider it appropriate to express my views on the issue of the unfairness discretion.

24. [24]
    If it had been necessary to do so, I would also have excluded the interview (noting that the burden of proof lies in respect of this discretion on the defendant on the balance of probabilities), on the following grounds:

1. The lack of confirmation that the defendant understood his right to silence and the failure of PCC LB to elucidate whether the defendant did understand the caution administered^[19];

2. The lack of confirmation that the defendant understood his right to legal advice and assistance and the failure of PCC LB to elucidate whether the defendant did understand^[20];

3. The clear breach by PCC LB of his legislative and operational obligations, in respect of the defendants’ understanding of the cautions, and the failure to ensure that a “support person” was appropriate, not disqualified or conflicted because of her role in the community and/or her status and/or relationship with the compliant, and had a proper understanding of the support person role (including ensuring the support person received the required documentation)^[21];

4. The failure of PCC LB to assess the defendant (an aboriginal child, in remote indigenous community, with limited literacy skills)^[22] as a “special needs” person, and therefore entitled to the benefit of Operational Procedures Manual, paras 6.3.2 and 6.3.3.

Concluding observations

25. [25]
    Over the period 12-14 August 2009, I heard applications in the Mount Isa District Court to exclude interviews in respect of six defendants, R, T, L, E, N and B^[23].

26. [26]
    All interviews were excluded, for a variety of different reasons set out in my rulings in respect of each of the defendants. Although I do not consider that the evidence reveals any form of malfeasance, it does indicate serious failures by investigating police, such that multiple records of interview related to very serious criminal allegations have been excluded from evidence. It would seem appropriate that all the rulings delivered by me be forwarded to the Director of Public Prosecutions, Mr Moynihan SC, and the Police Commissioner, Mr R Atkinson, to ensure steps are taken by way of management guidance and improved training to reduce the prospect of such negative outcomes (in the context of the investigation of serious crimes) in the future.