R v Yatta[2015] QDC 58

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application by the defendant, Jacilla Yatta (the applicant), under s 590AA of the Criminal Code for the following orders:

1. (a)
   that the interview between police and the applicant on 27 September 2012 be excluded from evidence; and
2. (b)
   that the items of clothing located by police as a result of a search be excluded from evidence.

2. [2]
   The applicant is charged with one count of armed robbery, alleged to have been committed on 3 September 2012. It is alleged that, around 2:40 pm on that date, the applicant entered a 7-11 convenience store at Mt Gravatt East, approached the serving counter with a knife, made a demand for and received money. The assailant was described by the owner of the 7-11, who was there at the time, as being “approximately 20 to 22 years old, dark complexion, approximately 5 foot tall, wearing black pants and a black hooded jumper pulled over her head”. After receiving the money, the assailant left the store.

3. [3]
   The applicant is an Aboriginal person who, at the time of the alleged offence, was 17 years old. It was acknowledged by counsel for the Crown that she was a person who had limited contact with police prior to this; she had not been interviewed previously.

4. [4]
   Subsequently, on 27 September 2012, at 7:50pm the applicant was a passenger in a vehicle which was intercepted by police officers, Detective Senior Constable (now Detective Sergeant) Celebicanin (Celebicanin) and Plain Clothes Constable (now Senior Constable) Pearson (Pearson) on Newnham Road, in Wishart.

5. [5]
   Pearson gave evidence that the vehicle was intercepted because it was speeding. Celebicanin’s evidence was somewhat different. His evidence was that “[t]he vehicle was speeding and we suspected that [the applicant] could be in the vehicle”.^[1]  The basis for the suspicion was said to be that Celebicanin had been in contact with a human source (prior to 27 September) who had implicated the applicant as the person responsible for the robbery at the 7-11.  He then received another phone call from the same source, on 27 September, indicating the applicant would be travelling in that vehicle.  However, he then equivocated about whether he knew the applicant was a suspect before or only after the vehicle was pulled over.  In terms of the matters I need to determine, this is not material, but the officer’s equivocation is, given the inconsistencies between his evidence and that of Pearson, in some critical respects.

6. [6]
   Pearson’s evidence, which I accept, was that he had not had any conversations with Celebicanin about the vehicle, or the occupants of it, before it was pulled over for speeding.

7. [7]
   In any event, Celebicanin conducted police checks in respect of each of the persons in the car. After carrying out those checks, Celebicanin informed Pearson that the applicant was wanted for questioning in relation to the armed robbery at the 7-11.

8. [8]
   Celebicanin said in his statement made on 25 January 2013 that he advised the applicant that she was wanted for questioning in relation to an armed robbery, “cautioned her in accordance with the PPRA”, and that she then “agreed to attend Upper Mt Gravatt police station for the purpose of further questioning”. Pearson’s evidence corroborates the evidence that the applicant agreed to accompany the police officers back to the police station, but makes no reference to any caution being administered at this point. The exchange at the roadside was not recorded.

9. [9]
   The applicant and the two police officers then travelled back to Upper Mount Gravatt Police station, arriving at about 8:30pm.

0. [0]
   At the police station, Celebicanin and Pearson commenced conducting an electronic record of interview with the applicant.

11. [11]
    The video recording of the interview, and a transcript of the interview, were produced at the hearing. The video was played in Court.

12. [12]
    The interview was conducted by Celebicanin, as the senior ranking officer, with Pearson there to assist him by taking notes, and to assist if he thought it was necessary to ask more questions.

13. [13]
    The recording commenced at 8:46pm. The applicant was asked to “introduce herself”, in response to which she gave her name, Jacilla Yatta, and her date of birth, 1 November 1994. She was asked to spell her surname, which she did. She was asked “what is your current home address?”, in response to which she said “Um, I’m more like um moving around like couch surfing, like not staying anywhere, just.”

14. [14]
    Celebicanin referred to the circumstances leading up to the applicant being at the police station on that evening, and asked the applicant to confirm that she “came back here of your own free will”, to which she said “Yeah, I, yep”.^[2]

15. [15]
    Celebicanin then informed her of her rights, saying:

“So but before I go into any questioning I’ve got to give you certain rights.  You have the right to remain silent, that means you don’t have to say anything or make any statements unless you wish to do so.  Whatever you say will be recorded by recording device and can be later used as evidence in Court.  Do you understand that?”

16. [16]
    The applicant responded “Yep”.

17. [17]
    Celebicanin also informed the applicant that she had the right to telephone to speak to a relative, a friend and a lawyer of her choice. Although at first the applicant said “no” when asked if there was anyone she wished to contact, when Celebicanin asked if she was sure about that, the applicant said she would like to contact someone, but did not have her phone, which was “back at the house, where I’m staying with friends”. Celebicanin then offered to assist the applicant to find the relevant numbers, and to find a lawyer, at which point the interview was suspended. This was at 8:50pm.

18. [18]
    When asked why he did not ask the applicant to repeat back her understanding of the caution regarding her right to silence, Celebicanin said he did not think that was necessary, because he thought she had an understanding, based on her answer “Yep”. But he then gave a variety of answers when pressed about a later part of the interview (referred to below), where there was an inquiry from Pearson about her understanding of her legal rights, and why that was not done at the start. These answers ranged from “we never had the time to do it at the start”, because the applicant “wanted to seek legal advice”; to that being a standard or routine question; to that not being common practice unless you had concerns at the start of the interview that the person did not understand.

19. [19]
    Pearson also said he had not harboured any doubt or concern that the applicant did not understand the caution given to her at the start of the interview.

20. [20]
    The record of interview resumes at 11:03pm.

21. [21]
    What occurs in-between 8:50pm and 11:03pm is important, but was not the subject of any electronic recording. Both Celebicanin and Pearson gave evidence about this, but in some critical respects their evidence is inconsistent.

22. [22]
    As to what first occurred, Celebicanin’s recollection was not clear; he either could not remember, or could only say something was “possible”. However, Pearson’s evidence was clear, and I accept, that the police officers provided a list of duty lawyers to the applicant, from which she could select; that she selected a name; that Celebicanin dialled the number; and then handed the phone to the applicant to speak to the lawyer. This took place at the administrative officer’s desk which was down the hallway from the interview room. There was no one else in the office at the time, as it was at night.

23. [23]
    Pearson’s evidence was that the applicant did not speak to the lawyer for very long, maybe less than five minutes. He did recall that she made other phone calls, trying to get in touch with a friend or friends, but did not remember whether that was before or after she spoke to the lawyer.

24. [24]
    Celebicanin’s evidence in chief was that after the applicant had spoken to the lawyer:

“She was seated back in the interview room and was it immediately after or time later when I approached and I said what are you doing.  She said lawyer said no talk.  Like, I’m not going to interview, but – but then she volunteered.  I’ll take you – I’ll show you where I dumped the clothing.”

25. [25]
    This conversation was not recorded. Celebicanin’s explanation for why that was not done was that he was not questioning her. He said “she said no talk and I had no intention of questioning [her] any further, so I didn’t think that was necessary to – to record that at the time”.

26. [26]
    In cross-examination, Celebicanin was pressed as to what he believed constituted “questioning”. He indicated that was not until “we turn the tapes on and we start questioning. Like, asking questions in relation to the offence”.

27. [27]
    The applicant having communicated, in effect, that she was exercising her right to silence, she was nonetheless returned to the interview room. There is conflicting evidence about this also:

1. (a)
   Celebicanin said that the reason she had been put back in the interview room was because he “didn’t know much anything about that offence and we were looking and reading on the – what evidence was there”.   He was reading statements that were taken from the console operator at the 7-11, and looking at the footage from the service station.  
2. (b)
   Celebicanin described the applicant, on at last two occasions, as being “voluntarily in custody”; seemingly because “[s]he didn’t ask me to leave”.   Given that the applicant is a 17 year old girl, at a police station at night with two senior police officers, who is not otherwise known to them, who has just spoken briefly to a duty lawyer and been advised not to answer any questions, and who has not been cautioned that she is free to leave at any time unless she is arrested, the obvious question is whether she would even know that she could ask to leave.
3. (c)
   On Celebicanin’s evidence, it is possible she could have been in the interview room for anywhere up to 30 minutes.  He said he doubted it was that long, but that it was possible.
4. (d)
   Celebicanin then said that the applicant volunteered to show him where she dumped her clothing.  He could not remember if she came out of the interview room to see him, or if he went in there to see her.   He said he was “pretty sure” the conversation took place in the interview room though, or at least that he was in the doorway of the interview room.
5. (e)
   His evidence was that he would have told her she did not have to, that she could remain silent, or something along those lines.  He described that as his standard response to any person he deals with when they volunteer information, to remind them of their rights.  He acknowledged that he does not have an independent memory of doing this. 
6. (f)
   He acknowledged he would have asked her some questions, along the lines of where she had dumped the clothing, how to get to the location, and whether she could direct them.
7. (g)
   None of that was recorded – again, because of Celebicanin’s view that he was not “questioning” the applicant.
8. (h)
   He also accepted that he could easily have recorded this conversation – all he had to do was press a button.

28. [28]
    Pearson’s evidence was that after the applicant finished using the phone, the applicant was put back into the interview room by Celebicanin, and then about 20 seconds later Pearson walked into the interview room. He had been outside the room, at the computer, prior to this.

29. [29]
    Pearson’s evidence was that after he walked into the interview room, Celebicanin told him the applicant did not want to answer any questions, and then the applicant said “my lawyer’s told me I’m not going to interview – participate in the interview”, “I’m not going to answer any questions but I’ll show you where the clothes are”.

30. [30]
    Pearson’s evidence was that the applicant was not in the interview room for an extended period of time by herself – rather, that she spoke to the lawyer, was then taken back to the interview room by Celebicanin, then after 20 or 30 seconds, Pearson entered.

31. [31]
    After the applicant said the things referred to above, Pearson said:

“I think basically we just said to her, okay, so you don’t want to talk to a lawyer and then she said yeah.  I don’t want to talk to a lawyer.  I don’t want to answer any questions, but I’ll show you where the clothes were – clothes are.  And then we just said to her, well, okay.  You don’t want to talk to a lawyer – like, we were confirming that.  And you don’t want to answer any questions but you want to show – like, we just – I was a bit confused to be honest with you.  Like, yeah.  So – and then after that because she didn’t want to speak to us in relation to an interview or anything like that, myself – I didn’t want to talk to her any more and I think Damir didn’t talk to her any more about anything else.  We just said to her okay.  Do you want to show – you were talking to us about the clothes.  Where – where are the clothes?  And then she basically said, well, I’ll show you and that was when – okay.  We’ll get a car and then we’ll go to the location and that’s pretty much what happened.” 

32. [32]
    Pearson had no recollection of Celebicanin giving a further caution. He said if Celebicanin had told him that he had done that, he would most likely have recorded that in his notebook. Pearson’s notebook was produced at the hearing. There is no mention of any further caution.

33. [33]
    The first mention of this “unrecorded caution” by Celebicanin was in his supplementary statement, signed on 2 May 2013.

34. [34]
    On balance, I do not accept that a further caution was given to the applicant, after she communicated the advice she had received from the duty lawyer. Celebicanin’s evidence is based on what he says his “standard practice” is, not an independent memory. The giving of a further caution is not corroborated by Pearson’s evidence. If Celebicanin had said something to the applicant, he was required, by s 26(5) of the Responsibilities Code to repeat that in Pearson’s presence, which he clearly did not.

35. [35]
    Even if something was said to the applicant, I am not satisfied that she acquired any greater understanding of her rights than she apparently had when her rights were first put to her by Celebicanin, on the basis that her actions, and the things she said when the recorded interview resumed, suggest the opposite.

36. [36]
    At some point, Celebicanin, Pearson and the applicant left the police station in a car, and travelled to a unit complex at 166 Cavendish Road, following directions being given by the applicant.

37. [37]
    They drove into the driveway of the complex (which was not gated), then drove around the complex, on the driveway, near to where the fenced pool area was. There was a pathway next to the pool area. They got out of the car, and walked along the pathway, towards a timber fence (which was the boundary fence of the property). The officers described this as part of the common area for the complex. Some clothing was located in that area, on the fence and on the ground. Pearson’s recollection was that there was one item of clothing on the fence, and on the ground near the fence there was a pair of shoes, a pair of pants, and a top or shirt.

38. [38]
    As it was approaching 0pm, which was the shift change-over time, Celebicanin and Pearson made contact with other police officers, whose shift was due to start at 0pm, to come to the location, in order to ensure the area, and the clothing, remained secure until the scenes of crime officers could arrive.

39. [39]
    Once those police officers arrived, Celebicanin, Pearson and the applicant left 166 Cavendish Road, and returned to the police station.

40. [40]
    Photographs were produced showing the area, and the clothing. Although Celebicanin in his evidence in chief said, by reference to the photographs “that’s exactly what we saw, how we found it…”, it is apparent that is not the case because, for example, in the two photographs showing two items of clothing hanging on the fence, one has the white striped jacket the right way around, and the other has it inside out. I accept Pearson’s evidence, just referred to, as to how the clothing appeared when they first arrived. I also accept that neither Celebicanin nor Pearson moved the clothing; but it seems clear that someone did, before photographing it.

41. [41]
    No part of the time spent at 166 Cavendish Road was recorded, again, because, as Celebicanin said, “I had no intention to question Ms Yatta at all”.

42. [42]
    No search warrant was obtained prior to attending 166 Cavendish Road, nor was a post-search approval obtained afterwards. Both officers said they did not think they needed either of those things, because this was a “common area” or “common property”, and there was no gate.

43. [43]
    When the recorded interview resumed, at 11:03pm, Celebicanin commenced by saying: “So Jacilla just to cover certain stuff, what happened in the meantime”, then paused, and appears to invite the applicant to speak, saying “You”. The applicant then says:

“Um, I, I showed the evidence of where I chucked my clothes after the robbery at the seven eleven and I got a lawyer, a, um a lawyer and the other one was oh, yeah I got a lawyer to sort out for my um Court and everything.”

44. [44]
    Celebicanin then proceeds to go through, “in chronological order”, the things that happened, between 8:50pm, and 11:03pm, including:

1. (a)
   an unsuccessful attempt to find a number for one of the applicant’s friends;
2. (b)
   an unsuccessful attempt to call another person, the “guy who was… with you tonight”;
3. (c)
   speaking to another friend to ask him to bring the applicant’s clothing “back here”;
4. (d)
   the applicant being given a list of lawyers, and picking a lawyer;
5. (e)
   the applicant speaking to the lawyer;
6. (f)
   the lawyer giving the applicant “certain instructions”.

45. [45]
    After that, the following exchange occurs:

“SCON CELEBICANIN:  Did we ask you or question you in relation to the offence?

YATTA:  Um.

SCON CELEBICANIN:  After the lawyer, what the lawyer told you, did we talk to you, [INDISTINCT].

YATTA:  No, um the lawyer told me to um wait until to not talk until I have like, have gone to Court and.

SCON CELEBICANIN:  Yep, so the lawyer told you not to talk?

YATTA:  Yep.

SCON CELEBICANIN:  However you took us to, on the corner, to the Corner of Creek.

YATTA:  Yep.

SCON CELEBICANIN:  And Cavendish Road, to the Unit complex.

YATTA:  Yep.

SCON CELEBICANIN:  And you showed us, where.

YATTA:  The, where I chucked my clothes after the robbery.

SCON CELEBICANIN:  Mmhmm.

YATTA:  Yeah.

SCON CELEBICANIN:  What clothing was there?

YATTA:  Um there was a jumper.  There was a jumper and another jumper.

SCON CELEBICANIN:  Okay.

YATTA:  But I wore the stripy jumper underneath the black jumper and I wore pink, pink shoes and –

SCON CELEBICANIN:  Yeah.

YATTA:  Ah the black shorts.

SCON CELEBICANIN:  Did Mark or myself or anyone threaten you to do that?

YATTA:  Um, no, no.  I remembered where –

SCON CELEBICANIN:  Okay.

YATTA:  Um.

SCON CELEBICANIN:  No, no –

YATTA:  The thing –

SCON CELEBICANIN:  But did, did, did I say to you, you must tell me or you told me of your own free will?

YATTA:  No, um I just said it because um I remembered from where I put ‘em before, like I, I told where I had it, so.

SCON CELEBICANIN:  Mmhmm.

YATTA:  Um, and then we went to the Police and then they were, the clothes were there, I thought they were gone, so.

SCON CELEBICANIN:  Mmm.

YATTA:  That’s why I asked to go there ‘cause um.

SCON CELEBICANIN:  [INDISTINCT]

YATTA:  Yeah, yeah I thought the clothes was gone.

SCON CELEBICANIN:  Alright.

YATTA:  But yeah.

SCON CELEBICANIN:  So you didn’t think, [INDISTINCT].

YATTA:  Just to check.

SCON CELEBICANIN:  So you didn’t think we were going to find [INDISTINCT].

YATTA:  Yeah, yep.

SCON CELEBICANIN:  Alright, have we threatened you, have we promised you anything in return to do that for us?

YATTA:  Um no, no.”

46. [46]
    After that there is a pause, and Celebicanin then looks at Pearson and says “ah Mark” (listening to the recording, this is done in a questioning tone, which I take to be a question whether Pearson has anything else he wants to address). The following exchange then takes place:

“CON PEARSON:  Um obviously at the start of this interview you were given your rights um, there was certain rights, you were fully aware of those rights when they were given to you?

YATTA:  Yep.

CON PEARSON:  Okay, you understood those rights when they –

YATTA:  Yep.

CON PEARSON:  Were given to you?

YATTA:  That, I didn’t, I could, um I’m only speaking for the, the evidence that um that I had for the to prove that I’m saying proof to say that I’ve um chosen to show where my clothes were but um I didn’t go, um I’ve chosen just to speak about the evidence.

SCON CELEBICANIN:  So you didn’t –

YATTA:  And.

SCON CELEBICANIN:  So you chose to speak about the evidence, but you chose –

YATTA:  Yeah.

SCON CELEBICANIN:  Not to speak what happened at the Seven Eleven?

YATTA:  Yeah, yeah.

SCON CELEBICANIN:  Why, why is that?

YATTA:  Um, ‘cause like just to show proof that the evidence and yeah just to show proof like the evidence and like where I had the evidence to prove that I’m, I actually, um show like actually accepted to show where I’ve chucked my clothes, yeah.”^[3]

47. [47]
    As to why Pearson asked her, on the resumption of the interview, if she understood her rights, his evidence was that he was just wanting to clarify everything that had happened up to that point in time, to “tell the story so it was on the tape from the beginning”. When asked whether her response, set out above, caused him any concerns, as at September 2012, or now, he said no, he thought she understood what was happening.

48. [48]
    Similarly, Celebicanin said that the applicant’s response, set out above, did not cause him any concern then, or now.

49. [49]
    Celebicanin then asked the applicant some questions about her level of education, in response to which she said that she finished year nine and half of year ten; that she can read and write; and was “pretty good” at English.

50. [50]
    After Pearson says he does not “have anything more”, Celebicanin then continues with the following exchange with the applicant:

“SCON CELEBICANIN:  So, as I said once, once again did you know by showing us the evidence, the, the clothing, that that was.

YATTA:  Um yep, um they were, when I went there, there was actually all the clothes were, I knew where I chucked some of the clothes and where I, I’ve chucked them everywhere and everything.

SCON CELEBICANIN:  But did you know –

YATTA:  Yeah.

SCON CELEBICANIN:  You didn’t have to show us where the clothing was?

YATTA:  Um.

SCON CELEBICANIN:  So you, you could have said, no I don’t want to show you.

YATTA:  Yeah, yep but um I had to chose, I, I chose because um because I knew where the evidence was for um for like I knew where the um where I’ve chucked my clothes after the stealing and I’ve chosen it because um, I knew where the clothes were, like for evidence like that I’ve actually did stole them from the shop.

SCON CELEBICANIN:  Alright, so no one, no one made you, what I’m trying to say, no, none of us, no Police Officer has made you to show us, so.

YATTA:  Yeah, yep, oh okay, yeah.

SCON CELEBICANIN:  Do you agree with that?

YATTA:  Yep, yep.”^[4]

51. [51]
    The interview was terminated shortly after that, at 11:11pm. The applicant was then arrested, and taken to the Brisbane City Watchhouse by Pearson and Celebicanin to be charged. Pearson was the arresting officer.

52. [52]
    Having watched the video of the record of interview, I note that during both segments of the interview, the police officers are, as one would expect, polite, and there is nothing intimidatory or aggressive about their demeanour towards the applicant. The applicant is also polite and cooperative, but appears nervous. As is apparent from the extracted passages set out above, she responds to many of the matters put to her by Celebicanin with “yep” or “yeah”. In the resumed part of the interview, she appears fatigued.

53. [53]
    However, having regard to her actions, despite the advice of the duty lawyer, and the emphasised parts of the interview, set out above, I have a very real concern that the applicant did not understand her rights. Her change of position, from communicating the advice of the duty lawyer not to answer any questions, to somehow volunteering to take the police to where she dumped her clothes, is a mystery. On Pearson’s evidence, which I generally prefer where it conflicts with Celebicanin’s, she only had a very short space of time in which to communicate this – a period of time not sufficient, in my view, for the officers to reasonably determine that she understood what she was doing. Her statements in the resumed interview reveal a confused, and frankly artificial distinction between not speaking about what happened at the 7-11 and not answering questions, on the one hand, but speaking about the evidence, on the other. Pearson himself referred to being “surprised” and “confused” about the applicant’s change of position. It seems apparent to me that the applicant was confused as well.

54. [54]
    It is most unsatisfactory that the exchange(s) between Celebicanin, Pearson and the applicant, during which, and after, she communicated the advice of the duty lawyer, were not recorded. But in the absence of that, I can only proceed on the basis of the material as it appears to me, from which, as I have said, I have reached the view, firstly, that the applicant did not understand her legal rights, and secondly, that appropriate measures were not taken by the police officers to address that.

Compliance with the Requirements of the PPRA

55. [55]
    Counsel for the applicant submitted that, in the circumstances outlined above, there were a number of respects in which provisions of the Police Powers and Responsibilities Act 2000 (PPRA) were not complied with.

56. [56]
    As Keane JA (as his Honour then was) observed in R v LR [2006] 1 Qd R 435 at [41]:

“One of the main reasons advanced for the passage of the PPR Act in 2000 was to ‘provide powers necessary for effective modern policing and law enforcement’ however it was also the intention of the legislature to ‘ensure fairness to, and protect the rights of, persons against whom police officers exercise [those] powers…’^[5]  Section 5 of the PPR Act states that it ‘is Parliament’s intention that police officers should comply with this Act in exercising powers and performing responsibilities under it’.  A breach by a police officer of an obligation imposed by the PPR Act amounts, at a minimum, to a breach of discipline.”^[6]

57. [57]
    Part 3 of Chapter 15 of the PPRA contains a number of statutory safeguards in order to ensure fairness to persons, such as the applicant, who are being questioned in relation to an indictable offence.

58. [58]
    Relevantly, section 420 of the PPRA provides as follows:

“420Questioning of Aboriginal people and Torres Strait Islanders

3. (1)
   This section applies if—

1. (a)
   a police officer wants to question a relevant person; and

2. (b)
   the police officer reasonably suspects the person is an adult Aborigine or Torres Strait Islander.

3. (2)
   Unless the police officer is aware that the person has arranged for a lawyer to be present during questioning, the police officer must—

1. (a)
   inform the person that a representative of a legal aid organisation^[7] will be notified that the person is in custody for the offence; and

2. (b)
   as soon as reasonably practicable, notify or attempt to notify a representative of the organisation.

3. (3)
   Subsection (2) does not apply if, having regard to the person’s level of education and understanding, a police officer reasonably suspects the person is not at a disadvantage in comparison with members of the Australian community generally.

3. (4)
   The police officer must not question the person unless—

1. (a)
   before questioning starts, the police officer has, if practicable, allowed the person to speak to the support person,^[8] if practicable, in circumstances in which the conversation will not be overheard; and

2. (b)
   a support person is present while the person is being questioned.

3. (5)
   Subsection (4) does not apply if the person has, by a written or electronically recorded waiver, expressly and voluntarily waived his or her right to have a support person present.

3. (6)
   If the police officer considers the support person is unreasonably interfering with the questioning, the police officer may exclude the person from being present during questioning.”

59. [59]
    This provision must also be read with s 25 of the Responsibilities Code which, inter alia, by s 25(1) requires that, unless the relevant officer already knows the person (cf s 25(2)):

“A police officer who is about to question a relevant person the police officer reasonably suspects is an adult Aboriginal person or Torres Strait Islander must first ask questions necessary to establish the person’s level of education and understanding.”^[9]

60. [60]
    Under s 25(3) of the Responsibilities Code:

“The questions the police officer may ask include questions, not related to the relevant person’s involvement in the offence, that may help the police officer decide if the person –

1. (a)
   is capable of understanding the questions put to the person, what is happening to the person and the person’s rights at law; and

2. (b)
   is capable of effectively communicating answers to the questions; and

3. (c)
   is aware of the reason the questions are being asked.”

61. [61]
    In relation to the formulation “is reasonably satisfied”, where it also appears in s 423(2)^[0] (formerly numbered s 254(2)), McPherson JA said, in R v LR [2006] 1 Qd R 435 at [5]:

“I cannot doubt … that it is designed to set up an objective criterion to be determined by reference to the external evidence or indicia of the influence of liquor rather than simply according to the officer’s subjective even if honest impression of the matter.  Otherwise, I can see no reason why the expression used in s 254(2) is “reasonably satisfied”. 

62. [62]
    In the same case, Keane JA said, at [44]:

“If a person is to decide that he or she is ‘reasonably satisfied’ as to something it means that there must have been evidence available to him or her which can objectively be seen to support the decision that has been reached.  A person may still be ‘reasonably satisfied’ about a matter despite it being possible for another person to reach a different view based on the same material. …  It is only if there is no evidence that could reasonably be seen to support a particular conclusion that it is possible to conclude that the original decision-maker was not ‘reasonably satisfied’. ”

63. [63]
    At [45] his Honour expressed the view that, “when examined objectively, there was no basis on which the officer could have been reasonably satisfied that the appellant’s level of intoxication was not affecting his ability to understand his rights or to decide whether or not to answer questions”.

64. [64]
    This case is not one of questioning whether the officers could be “reasonably satisfied” of a particular matter; but rather one of questioning whether the officers ought to have been “reasonably satisfied” of a particular matter, namely that the applicant was Aboriginal. In my view, the same objective analysis is appropriately brought to bear to that question.

65. [65]
    At the time of questioning the applicant, both Celebicanin and Pearson said it did not occur to them that she may be Indigenous.

66. [66]
    Counsel for the applicant submitted that the police should have had a reasonable suspicion that the applicant was Indigenous and as such should have followed the procedures mandated by s 420 of the PPRA.

67. [67]
    The evidence given by the police officers was as follows.

68. [68]
    Celebicanin initially said “we never got to that part in the questioning”—suggesting that, having cautioned her, if she had not sought to speak to a lawyer, the next question would have been whether she identified as Aboriginal or Torres Strait Islander. However, because she opted to ask for a solicitor, the interview was suspended, and that part of the questioning was not reached. That is, with respect, illogical, given that one of the purposes of asking the question is to ascertain whether a particular type of lawyer should be contacted.

69. [69]
    But Celebicanin also said “it never crossed my mind”, “[s]he didn’t appear to me as being Aboriginal or disadvantaged”. When asked what facts he relied upon in forming that conclusion, he identified three things: that she was well-presented, well-spoken, and “not like everyday Aboriginal – the people I deal with”. He later added: “Her appearance. Her look”.

70. [70]
    That is a troubling response from a police officer. But in fact, as Celebicanin clarified, those were not things he thought of at the time, in consciously deciding she was not Aboriginal – rather, he said that on 27 September it “never crossed my mind that [she] was Aboriginal”.

71. [71]
    The applicant was in court on the hearing of this application. Whilst noting immediately that the colour of a person’s skin is not a necessary indicator of their cultural heritage, including as Aboriginal or Torres Strait Islander, the applicant is clearly a person with dark skin, such as would stereotypically be associated with an Indigenous person. For Celebicanin to say “it didn’t cross my mind” is, with respect, difficult to comprehend.

72. [72]
    Although Pearson also said it didn’t occur to him the applicant was Aboriginal, he did say “She looked more Pacific Islander to me, I think”.

73. [73]
    From his evidence, it appears Celebicanin did give consideration to whether she was “disadvantaged”, but was satisfied she was not, he said, because she “spoke well”, and because of the answers she gave (relevantly, he identified her name, date of birth and address). In so far as this was part of Celebicanin’s conscious thought processes on 27 September 2012 this, too, I find surprising, given that he was interviewing a 17 year old girl (putting to one side her Aboriginality), who has been picked up and brought in for questioning at night, alone, and who is unable to provide an address, because she is “couch-surfing”. He had not, at that stage, asked her anything to ascertain her level of education, or her ability to understand, in terms of s 25(3) of the Responsibilities Code.

74. [74]
    Even if he had asked the questions he did ultimately ask the applicant, about her level of education, at the outset, as required by s 25(3), I accept the submission on behalf of the applicant that those perfunctory questions were inadequate to establish the applicant’s level of understanding and therefore whether the applicant was at a disadvantage in comparison with members of the Australian community generally.

75. [75]
    It appears that Celebicanin’s and Pearson’s failure to consider whether the applicant may have been Aboriginal, may be linked to a broader lack of knowledge or understanding of the relevance or significance of that, in terms of the job they had to do.

76. [76]
    Celebicanin said he had not heard of the concept of gratuitous concurrence with Aboriginal suspects. When asked if he had ever received any cultural awareness training in respect of Aboriginal defendants, he said “I would have received the training but not – I’m not sure if – it would have been mentioned 00 percent. Yes, it would have”; but “Not to a fine details, you know” and he could not pinpoint a date “in my last 15 years” when that training would have been received; he could only say that it would have occurred sometime in the last 15 years.

77. [77]
    Pearson has been a police officer since April 2008. He candidly acknowledged that he was not aware of the provisions in the PPRA relating specifically to Aboriginal defendants, in September 2012. He said that he was aware there was a legal service for Aboriginal and Torres Strait Islander people, called ATSILS, but believed that contacting a defence lawyer was “just as good because they’re both legal services”. He was not aware that, for an Aboriginal person, ATSILS “was the first choice and that we had to go to them first”. He said he has subsequently made himself aware and “obviously I’ve done my best to improve what I’ve been doing in that regard”.

78. [78]
    This case demonstrates a need for improved education and training in relation to these matters.

79. [79]
    There are a number of other respects in which there were failures to comply with the PPRA.

80. [80]
    Section 22 of schedule 9 to the PPR Regulation requires a particular caution to be given to a person when asking them to attend for questioning. That includes, by s 22(4), requiring the police officer to caution the person, before starting to question them, by asking them: “Do you understand you are not under arrest? Do you understand you are free to leave at any time unless you are arrested?” There is no evidence that this caution was given to the applicant, either before the interview commenced, or in the intervening period. As noted above, Celebicanin’s evidence was that he viewed the applicant as being “voluntarily in custody”.

81. [81]
    There is a requirement, when cautioning a person about their right to silence,^[11] to ask the person if they understand (s 26(1)).  If the police officer “reasonably suspects” that they do not understand, the police officer may ask the person to explain the meaning of the caution in their own words (s 26(2)), and if necessary must further explain the caution (s 26(3)).  If questioning is suspended or delayed, the police officer must ensure the person is aware the person still has the right to remain silent and, if necessary, again caution the person when questioning resumes (s 26(4)), and if a police officer cautions a person in the absence of someone else who is to be present during questioning, the caution must be repeated in the other person’s presence (s 26(6)).

1. (a)
   As noted above, Celebicanin did ask the applicant if she understood when he issued the caution to her.  She answered “yep”.  I question whether that is adequate, when dealing with 17 year old (Indigenous or non-Indigenous) girl.  I would think it prudent to check the person’s understanding.

2. (b)
   But in any event, I have found he failed to caution her again, when she had communicated the advice of the duty lawyer, either in terms of the more fulsome requirements of s 26, or even in the sense that he suggested he “would have done”, that is, by saying “you don’t have to” (show us where the clothes are).

3. (c)
   Further, when the interview is resumed, nothing is said about this until Pearson raises it, almost as an afterthought. The applicant’s answers at that point make no sense at all.^[12]    Likewise, her later response when Celebicanin asks her to confirm that “you could have said, no I don’t want to show you”.^[13]   Those answers do not give me any sense at all that she understood what her rights were and was deliberately exercising an informed choice to do what she did. 

82. [82]
    Further, s 24 of the Responsibilities Code requires that, if a person confirms they do not want to answer questions, a police officer must not question or continue to question the person (s 24(3)) and if the person later indicates they are prepared to answer questions, requires the police officer to ask them why, and ask them if a police officer or someone in authority has told them to answer questions (s 24(4)).   In my view, Celebicanin and Pearson’s view that they were not “questioning” the applicant demonstrates an artificial and narrow view of what constitutes “questioning”.  In order to elicit the information that there were some clothes that were discarded, somewhere, and that the applicant knows where they are located, they have clearly asked her some questions.  But in any event, it seems unduly narrow, and inconsistent with the spirit of the PPRA and the PPR Regulation, including the Responsibilities Code, to say that because you are not formally in an interview situation, actively posing questions to a suspect, but rather are eliciting information from them in a more informal, or even passive way, that you are not “questioning” them.  In my view there was a failure to comply with this requirement also.

83. [83]
    Section 435 of the PPRA requires a police officer, who is required to give a person information (including a caution), if practicable, to electronically record the giving of the information to the person and the person’s response.

84. [84]
    Section 436(2) of the PPRA requires that the questioning of a person, if practicable, be electronically recorded. Some examples are given, for when it might be impracticable to electronically record a confession or admission, including if a murderer telephones police about the murder and “immediately confesses to it when a police officer arrives at the scene of the murder”; or where a person makes a confession or admission “immediately after being apprehended”, or otherwise when it is not reasonably practicable to use recording facilities.

85. [85]
    That is not an issue here – the police officers readily acknowledged it was just a matter of pressing a button – because they were in the interview room. I mention the examples, however, because it supports the view I have taken, that “questioning” is not limited to where it occurs in a formal situation.

86. [86]
    Separately, there are issues concerning the search that was conducted at 166 Cavendish Road.

87. [87]
    The area was within the common area of a residential unit complex at that address, adjacent to the pool area. On this application, the Crown, appropriately in my view, accepted that this was not a “public place”, within the meaning of that term in schedule 6 to the PPRA, for the purposes of s 33 of the PPRA, which permits the search of such places without a warrant.

88. [88]
    Section 150 provides for an application for a warrant to enter and search a “place”.^[14]  Section 160 of the PPRA does, of course, permit police to search a “place” without first obtaining a warrant, if they reasonably suspect that evidence may be concealed or destroyed if the place is not entered and searched.  However, in those circumstances, they are required, by s 161 of the PPRA, to obtain a post-search approval order as soon as reasonably practicable after the search.   As noted above, that was not done here.

89. [89]
    The Crown sought to identify an alternative basis on which it could be said the search was lawfully conducted, namely: that it could be said members of the public have an implied licence to enter the common area of a residential unit complex;^[15] that accordingly, the police have power to lawfully enter the area, which was not enclosed or gated off; and in those circumstances ss 19 and 196 of the PPRA permit the police to seize the clothing. 

90. [90]
    Section 19(3) of the PPRA provides that “[a] police officer may enter a place and stay for a reasonable time on the place to inquire into or investigate a matter”.  Section 196 applies if a police officer lawfully enters a place, or is at a public place, and finds at the place a thing the officer reasonably suspects is evidence of the commission of an offence (s 196(1)).  Section 196(2) permits the police officer to seize the thing, whether or not as evidence under a warrant.

91. [91]
    Section 19(1) explains that the purpose of the section is to ensure a police officer performing a function of the police service may enter and stay on a place in circumstances that may otherwise be trespass. But section 19(2) expressly provides that “this section does not authorise entry to a private place if a provision of this Act or another Act provides for entry in the particular circumstances only under a search warrant or other stated authority”.

92. [92]
    There is no definition of “private place” in the PPRA. One may reasonably infer it is a “place” other than a “public place”, as defined. In circumstances where the PPRA contains express provisions requiring the obtaining of a warrant before, or a post-search approval after, searching a place other than a “public place”, in my view s 19, cannot properly be construed to circumvent those provisions.

93. [93]
    Similarly, it seems to me that the activities of the police, in entering the residential unit complex and carrying out the search and subsequent activities that they did, went far beyond what might reasonably be contemplated by any implied licence to enter the driveway or path, leading to the entrance to a dwelling, such as is discussed by the High Court in Halliday v Nevill (1984) 155 CLR 1 at 7.

94. [94]
    Accordingly, it does seem to me that the search was conducted unlawfully, having regard to the failure to comply with s 150, or alternatively, ss 160 and 161 of the PPRA.

95. [95]
    In any event, it was agreed, by both the Crown and the applicant at the hearing, that the question of the admissibility (or exclusion) of the “admissions” by the applicant in the record of interview, and the clothes located as a result of the search, are inextricably linked, in the sense that if the “admissions” are either found to be inadmissible (for lack of voluntariness), or excluded in the exercise of my discretion, it necessarily follows that the clothes located as a result of those admissions ought to be excluded as well.

Voluntariness

96. [96]
    The Crown seeks to rely on the statements made by the applicant, in the course of the resumed portion of the record of interview, on the basis that they are admissions amounting to confessional statements, made by her voluntarily, after she was advised of her rights, and after she had received independent legal advice.

97. [97]
    The onus lies upon the Crown to establish on the balance of probabilities that the admission(s) were made voluntarily before they can be received in evidence.^[16] 

98. [98]
    The relevant principle was articulated by Dixon J in McDermott v The King (1948) 76 CLR 501 at 511 as follows:

“At common law a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made.  This means substantially that it has been made in the exercise of his free choice.  If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne.  If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary.  But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made…”

99. [99]
    The rule has two aspects to it: the “inducement rule” (reflected in the final sentence of the passage just quoted) and what has been termed the “basal voluntariness” rule (reflected in the earlier part of that passage).^[17]

100. [100]
     The inducement rule does not arise for consideration here, because there is no evidence of any inducement or threat being held out to the applicant by “a person in authority”, namely, either of the police officers.

101. [101]
     But I have given careful consideration to whether, in the circumstances of this case, the admissions were attended by “basal voluntariness” – that is, whether the admissions can be said to have been voluntarily made, in the sense that they were made in the exercise of the applicant’s free choice, rather than in circumstances where her will was overborne.

102. [102]
     On the basis that the applicant’s responses in the interview demonstrate that she did not understand her right to silence, and therefore did not exercise a free choice to participate in the interview, on behalf of the applicant it was submitted that voluntariness has not been established.

103. [103]
     As is apparent from the reasons of Callinan, Heydon and Crennon JJ in Tofilau,^[18] their Honours’ analysis of Dixon J’s concept of “basal voluntariness”, viewed in the light of its origins (in Cornelius v The King^[19]), as well as other decisions in which Dixon J participated, points to a relatively narrow ambit for that concept.^[20]  It requires “some factor external to the accused” in order to render a confessional statement involuntary, a factor(s) causing the will of the accused to be “overborne”.^[21]

104. [104]
     Similarly, in the same case, Gummow and Hayne JJ said:

“58… as the reasons of Dixon J in McDermott show, application of the rule about ‘basal voluntariness’ also depends upon identifying the criteria that are to found the legal conclusion that a confession was not made ‘voluntarily’. The relevant conclusion is described as the will being ‘overborne’. The circumstances that yield that conclusion, and provide the criteria which govern the availability of the legal conclusion, are described as ‘the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure’. All are species of compulsion.

…

60… Basal voluntariness is concerned with confessions made under compulsion. The key inquiry is about the quality of the compulsion that is said to have overborne the free choice of whether to speak or to remain silent. In this context, ‘overborne’ should be understood in the sense described by Dixon J as ‘the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure’. It is necessary to focus on the sufficiency of the compulsion.”

105. [105]
     Relevantly, at [63], Gummow and Hayne JJ identify what does not suffice to show that the person’s will has been overborne:

“The conclusion that a confessionalist had no choice to speak or stay silent is not required (and without more being established, would not be open) if it is observed that the confessionalist acted under some misapprehension or mistake, even if that misapprehension or mistake was induced by the person to whom the confession is made.  Nor is that conclusion required (and without more being shown the conclusion would not be open) if it is observed that there was some imbalance of power between the confessionalist and the person to whom the confession was made.”^[22]

106. [106]
     Earlier, at [54], their Honours observed that “[t]o the extent to which questions of fairness are distinct from reliability, and to the extent to which questions of controlling police conduct and methods are relevant, they are best dealt with under the discretion”.

107. [107]
     Although, because of the matters addressed above, I am concerned about whether the applicant said the things she did in the exercise of her free choice, my concern in that regard arises from a combination of factors, including her age; whether she understood her right to silence, and the advice she was given by the duty lawyer (and whether that lack of understanding was related to her cultural and educational background); the persistence of the police officers in detaining her at the police station after she had conveyed to them what advice she had been given; and the failure of the police officers to further caution her, after she had advised them of the duty lawyer’s advice. Although, colloquially,^[23] it may be considered that in the circumstances she was not acting in the exercise of her free choice, because she did not understand her legal rights and the choices available to her, that is not the test for present purposes.

108. [108]
     In the circumstances, I find that the statements made by the applicant were made voluntarily, and are therefore admissible, subject to the discretionary factors to which I now turn.

Discretion to exclude

109. [109]
     Although admissible, it remains to be considered whether, in the exercise of my discretion, the evidence ought to be excluded.^[24]

110. [110]
     It is for the applicant to establish facts justifying the exercise of the discretion to exclude the evidence.^[25]

111. [111]
     The discretionary principles according to which a trial judge may exclude evidence of the voluntary confession cover three classes of case, summarised in R v Swaffield (1998) 192 CLR 159 at 189 [52], only two of which are relevant here:^[26]

4. (d)
   The first is a case where it would be unfair to the accused to admit the statement.  The purpose of the discretion to exclude evidence for unfairness is to protect the rights and privileges of the accused person.^[27]

5. (e)
   The second focuses, not on unfairness to the accused, but on considerations of public policy which make it unacceptable to admit the statement in to evidence, notwithstanding that the statement was made voluntarily and that its admission would work no particular unfairness to the accused.  The purpose of the discretion which is brought to bear with that emphasis is the protection of the public interest.^[28]

Fairness discretion

112. [112]
     In R v Lee (1950) 82 CLR 133, in the course of a discussion of the rule that allows a Court a discretion to reject evidence of statements voluntarily made to police officers, the Court said (at 150-151):

“The only circumstance which has been suggested as calling for an exercise of the discretion is the use of ‘improper’ or ‘unfair’ methods by police officers in interrogating suspected persons or persons in custody.  It was with such cases in mind that Latham CJ in McDermott v The King said that the trial judge had ‘a discretion to reject a confession or other incriminating statement made by the accused if, though the statement could not be held to be inadmissible as evidence, in all the circumstances it would be unfair to use it in evidence against him’.^[29]  In the same case Dixon J said: -- ‘In referring the decision of the question whether a confessional statement should be rejected to the discretion of the judge, all that seems to be intended is that he should form a judgment upon the propriety of the means by which the statement was obtained by reviewing all the circumstances and considering the fairness of the use made by the police of their position in relation to the accused’.^[30]  In our opinion the rule is fully and adequately stated in those two passages.  What is impropriety in police methods and what would be unfairness in admitting in evidence against an accused person a statement obtained by improper methods must depend upon the circumstances of each particular case, and no attempt should be made to define and thereby to limit the extent or the application of these conceptions.”^[31]

113. [113]
     As already noted, the purpose of the discretion is the protection of the rights and privileges of the accused, including procedural rights. It is relevant to consider the accused’s freedom to choose to speak to the police and the extent to which that freedom has been impugned.^[32]  As Brennan J observed, in Duke v The Queen (1989) 180 CLR 508 at 513, “[t]he unfairness against which an exercise of the discretion is intended to protect an accused may arise not only because the conduct of the preceding investigation has produced a confession which is unreliable but because no confession might have been made if the investigation had been properly conducted”.^[33]

114. [114]
     The circumstance that the record of interview was obtained in contravention of the PPRA does not of itself mean that it should be excluded.^[34]   Provisions such as those I have referred to do not purport expressly to govern the admissibility of evidence, but as Keane JA observed in R v LR [2006] 1 Qd R 435 at [51], the authorities suggest that they are to be “regarded as a yardstick against which issues of unfairness (and impropriety) may be measured”.^[35]   In the circumstances of that case,^[36] his Honour also observed, at [54]:

“… the judicial discretion also fell to be exercised against the background that the interview had proceeded in breach of provisions of the PPR Act designed, not merely to protect against the possibility of coerced confessions, but also to ensure the reliability of what an accused may say against his or her own interest and to ensure the free exercise of the right of the accused to stay silent.”

115. [115]
     Because the exchanges between Ms Yatta and the police officers, after she spoke to the duty lawyer, were not recorded, how she came to change her mind, or came up with the idea to voluntarily tell the police about the clothes, is not able to be tested. Counsel for the Crown submitted, and I accept, that it cannot necessarily be ruled out that a person simply decides to cooperate with police. However, in circumstances where Ms Yatta has communicated what her advice from the duty lawyer was – that is, not to answer any more questions – and indicates, not just then, but also later during the resumed part of the recorded interview, that she maintains that position, but nonetheless acts inconsistently with that, in the circumstances as I have outlined them above, in my view it would be unfair to the applicant to admit the record of interview.

116. [116]
     For completeness, I note that I was referred, by the Crown, to s 439 of the PPRA, which confers a discretion on the Court to admit a “record” of questioning, or confession or admission, despite noncompliance with ss 436 and 437, and other relevant provisions of the PPRA, “if, having regard to the nature of and the reasons for the noncompliance and any other relevant matters, the court is satisfied, in the special circumstances of the case, admission of the evidence would be in the interests of justice.”

117. [117]
     I am not so satisfied here. In my view, it is appropriate, in the exercise of the fairness discretion, that the interview between the police and the applicant on 27 September 2012 be excluded from evidence and, accordingly, that the items of clothing located by police as a result of the consequent search be excluded also.

Public policy discretion

118. [118]
     The public policy discretion does not focus on individual fairness: “Its emphasis is on whether the impugned conduct is sufficiently grave as to sacrifice the community’s wish to see the guilty convicted in order to express judicial disapproval and to deter the use of such unacceptable methods in achieving a conviction.”^[37]

119. [119]
     Having regard to the conclusion I have reached in relation to the fairness discretion, it is not necessary to address this matter further.

120. [120]
     The application is allowed.