GPN v R[2018] QDCPR 34

CHILDREN'S COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant is charged with four counts of rape. At the time of the alleged offences he was 12 years old. The complainant was a four year old girl. They were both children of Aboriginal or Torres Strait Islander descent living in a remote Aboriginal and Torres Strait Islander community in the northern peninsula area of Cape York.

2. [2]
   On 27 June 2016 the applicant participated in an interview with police in which he made certain admissions.

3. [3]
   The applicant applies pursuant to s 590AA of the Criminal Code for a ruling that the entire record of interview be excluded from evidence on his trial.

4. [4]
   The grounds for the application are that the police failed to explain adequately, and as a consequence the applicant failed to understand, his right to silence and his right to consult a lawyer, and that the applicant’s mother, present during the interview as his support person, placed undue pressure on him, such that his interview cannot be said to be voluntary. The applicant further submits that the interview should be excluded on the basis of unfairness and the discretion pursuant to s 130 of the Evidence Act, because the police acted in breach of the Police Powers and Responsibilities Act 2000 (Qld).

5. [5]
   The respondent concedes that part of the interview should be excluded but contends that the balance is admissible at the trial.

6. [6]
   I have reached the view that all of the record of interview should be excluded on the basis that the Crown has failed to prove the admissions were made voluntarily. These are my reasons for that decision.

Circumstances of the alleged offences

7. [7]
   It is alleged that on 12 June 2016 the applicant and the complainant were playing together at the house of the complainant. The complainant’s mother and the applicant’s mother were both in the house. The applicant’s mother sent the applicant back to her house next door to make some cordial. The complainant went with him. It is alleged that while inside that house the applicant raped the complainant vaginally and anally with his penis. It is also alleged that outside the house the applicant raped the complainant orally, twice, by inserting his penis into her mouth. The offences came to light when the complainant’s mother noticed that the complainant had an unusual vaginal discharge. Medical tests were undertaken and it was discovered that the complainant was suffering from gonorrhoea. The Department of Child Safety and the police were notified.

8. [8]
   Both the applicant and the complainant spoke Torres Strait Islander Creole, commonly the first language of many children in the Aboriginal communities of the northern part of Cape York Peninsula because that area shares many links with mainland Islander communities and some Torres Strait Islands.^[1] Both the applicant’s police interview and the complainant’s police interview were conducted in English.

9. [9]
   The complainant was interviewed by police on 12 June 2016. She was then four years and five months old. The interview was conducted in the presence of her grandmother as support person, who also assisted with interpretation of Creole and English. The complainant said that the applicant had put his “olu” into her “nunu” and “bum”. For most of that interview, the complainant spoke in Creole. No official interpreter was present. At the hearing of this application, the transcript of the complainant’s interview was available, but no translator had been engaged to transcribe it. Without translation, the interview was extremely hard to understand.

10. [10]
    The applicant was interviewed by police on 27 June 2016. It was not alleged that the applicant had any relevant history with police that may otherwise demonstrate familiarity with his right to silence. In the interview on 27 June 2016 he made some admissions with respect to the offending.

Relevant principles

11. [11]
    A confession will be presumed to have been made voluntarily: Attorney-General (NSW) v Martin.^[2]  However, where there are circumstances to suggest a confession was obtained by an inducement, threat or promise, the prosecution must prove the confession was made voluntarily: R v Thompson.^[3]  A confession which has been induced by any threat or promise by a person in authority shall not be received into evidence in any criminal proceeding: McDermott v R.^[4]

12. [12]
    The prosecution bears the onus of establishing that the applicant participated in the record of interview voluntarily.^[5] The Crown must prove that it was voluntarily made in the exercise of a free choice to speak or be silent. In McDermott v R^[6] Dixon J said:

“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: per Cave J in R v Thompson…”

13. [13]
    In addition to the requirement that out of court confessional statements be voluntary, the court has a discretion to exclude evidence if it has been obtained by unlawful conduct on the part of the police. The onus of persuading the court to exclude such evidence lies on the accused. In Cleland v R^[7] Dean J held as follows:

“Apart from the particular discretion to exclude evidence of a voluntary confessional statement, a trial judge has a more general discretion to exclude evidence of relevant facts or things ascertained or procured by unlawful or improper conduct on the part of those whose task it is to enforce the law (see R v Ireland (1970) ALR 727; 126 CLR 321 at 334–5, Bunning v Cross (1978) 19 ALR 641; 141 CLR 54 at 64-5, 72 and 74-5). The rationale of this principle is to be found in considerations of public policy, namely, the undesirability that such unlawful or improper conduct should be encouraged either by the appearance of judicial approval or toleration of it or by allowing curial advantage to be derived from it. Its application involves a weighing, in the particular circumstances of each case, of the requirement of public policy that the wrongdoer be brought to conviction and the competing requirement of public policy referred to above, namely, that the citizen should be protected from unlawfulness or impropriety in the conduct of those entrusted with the enforcement of the law.”

14. [14]
    The High Court in Tofilau v The Queen recently reiterated the principle that the impropriety of police conduct may be a ground for the exclusion of any resulting confession as a matter of discretion (i.e. the unfairness discretion), but it remains necessary for the defendant’s will to be overborne, if the confession is to be considered ‘involuntary’.^[8]

15. [15]
    Additionally the court has a discretion to exclude evidence if it considers that the evidence was obtained in circumstances which would make it unfair to use against the accused person. Once again, the onus of persuading the court to exclude the evidence due to unfairness is on the accused. The question as to what constitutes unfairness depends on an evaluation of the circumstances. It is concerned not so much with whether the police have acted unfairly or unlawfully but whether it would be unfair to the accused to admit his statements to be used against him. The reliability of the statements does not necessarily mandate a conclusion that it would not be unfair to deploy them.

16. [16]
    In R v Swaffield^[9] the High Court said:

“[53] The term “unfairness” necessarily lacks precision; it involves an evaluation of circumstances. But one thing is clear:

‘[T]he question is not whether the police have acted unfairly; the question is whether it would be unfair to the accused to use his statement against him… Unfairness, in this sense, is concerned with the accused’s right to a fair trial, a right which may be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement.’ (115)

[54] Unfairness then relates to the right of an accused to a fair trial;  in that situation the unfairness discretion overlaps with the power or discretion to reject evidence which is more prejudicial than probative, each looking to the risk that an accused may be improperly convicted. While unreliability may be a touchstone of unfairness, it has been said not to be the sole touchstone. It may be, for instance, that no confession might have been made at all, had the police investigation been properly conducted (116). And once considerations other than unreliability are introduced, the line between unfairness and policy may become blurred”. [Footnotes omitted].

17. [17]
    With respect to voluntariness, “in determining objections to the admissibility of a confession that is said to have been made involuntarily, the court does not attempt to determine the actual reliability of the confession. Rather, it assesses the nature and effect of any inducement to make the confession, in order to determine whether the confession was made because the will of the confessionalist was overborne by the conduct of a person or persons in authority”.^[10] It is therefore necessary to examine “the age, background and psychological condition of [the] confessionalist and the circumstances in which the confession is made.”^[11]

18. [18]
    McKechnie J in Siddon v The State of Western Australia^[12] summarised the voluntariness test as follows:

“2.  The word ‘voluntary’…does not mean volunteered. It means made in the exercise of a free choice to speak or be silent.

3. People do make confessions to crimes or other wrongful behaviour and admissions against interest. The law allows admissibility of such admissions if the prosecution establishes that the probabilities are that the person has spoken in the free exercise of a choice to speak or remain silent. A person is not obliged to incriminate themselves. If they do so voluntarily, however, that evidence will be admissible. Voluntariness is thus a precondition to admissibility for the state to establish on the balance of probabilities.

4. The administration of a caution is not an essential precondition to voluntariness. The essential precondition is the exercise of a free choice. Cases can be found where a caution was not administered but the court was satisfied that the person who spoke did so voluntarily. To opposite effect, the administration of a caution does not automatically lead to the conclusion that a confession was voluntary. There are cases where, despite the administration of a caution, a person who has not been shown to have understood their right to speak or remain silent.”

19. [19]
    It is trite that Aboriginal and Torres Strait Islander persons may be particularly susceptible to suggestion when questioned by police.^[13] The Anunga Rules or Guidelines for the interrogation of indigenous persons^[14] are relevant in determining whether it is fair to admit an interrogation of an Aboriginal or Torres Strait Islander person into evidence.^[15]

20. [20]
    The Anunga Guidelines have been reflected, in part, in various provisions of the Police Powers and Responsibilities Act 2000 (Qld) (“PPRA”). The right to an interpreter is reflected in s 433. The requirement for cautioning of persons is reflected in s 431. Section 420 deals with the questioning of Aboriginal and Torres Strait Islander people.

21. [21]
    Aboriginal and Torres Strait Islander children may be particularly susceptible to difficulties associated with giving oral evidence and police questioning.

22. [22]
    In addition to the above principles, it has long been recognised that there are particular issues and difficulties arising for Aboriginal and Torres Strait Islander people in their contact with police and the courts. They include a very real danger of miscommunication with police and with the courts, a lack of comprehension by many Aboriginal and Torres Strait Islander people of the criminal justice system and of conflicting cultural and legal assumptions and values such as the right to remain silent, deference to and intimidation by authority, and that some Aboriginal and Torres Strait Islander people are unable to speak, read and understand Anglo-Australian English.^[16]

23. [23]
    With respect to matters particular to an Indigenous person, in R v D^[17] Atkinson J stated at paragraph 11:

“These matters include the need to be aware of and on guard against gratuitous concurrence; the need to ensure the accused was not just informed, but actually understood, that he or she was free to exercise his or her rights including the right to silence; respect for long silences during interviews; the presence of, and opportunity to confer separately with, an Indigenous support person; and the notification of a representative of a legal aid organisation of the person’s custody [footnotes omitted].”

24. [24]
    In R v M^[18] an interview with a 12 year old boy was found to have been obtained by inducement and was excluded. There Lucas J held:

“When the accused person is a boy of 12 years of age; and when the only evidence against him implicating him in the commission of the offence is an admission in the form of a record of interview, one must be particularly careful to examine the circumstances in which that admission is made.”

25. [25]
    In R v W & Ors^[19] Justice Dowsett (as he then was) considered the admissibility of interviews of Aboriginal children challenged on the basis that they lacked voluntariness and on the discretionary ground of unfairness:

“A child, especially an Aboriginal child, should be told that he has a choice to remain silent otherwise it is difficult to see how a court can ever be satisfied that he has freely chosen to speak. If he is to be told, he must be told in a way which he will understand. If care is not taken to explain the matter to him and his comprehension tested to ensure that the advice has been assimilated, one may just as well speak to him in Greek.”

Relevant statutory provisions

26. [26]
    The rights of a suspect and the specific duties of police to safeguard those rights are set out in Chapter 15, Part 3 of the Police Powers and Responsibilities Act 2000 (PPRA). Section 415 enshrines a suspect’s right to silence. Division 3 contains “special requirements for questioning particular persons” including Aboriginal and Torres Strait Islander people and children.

27. [27]
    When questioning an adult Aboriginal or Torres Strait Islander person, unless the police officer is aware that the person has arranged for a lawyer to be present during questioning, the police officer must inform the person that a representative of a Legal Aid organisation will be notified that the person is in custody for the offence and as soon as reasonably practicable, notify or attempt to notify a representative of the organisation: s 420(2).

28. [28]
    When questioning a child, a police officer must not question a child unless, before questioning starts, the police officer has, if practicable, allowed the child to speak to a support person chosen by the child in circumstances in which the conversation will not be overhead, and a support person is present while the child is being questioned: s 421(2). If the police officer considers the support person is unreasonably interfering with the questioning, the police officer may exclude the person from being present: s 421(4).

29. [29]
    “Unreasonable interference” for the purposes of Division 3 includes conduct that prevents or unreasonably obstructs proper questions being put to a relevant person or the person’s response to a question being recorded, answering questions on behalf of the relevant person and providing written replies during the questioning for the relevant person to quote: s 424(1). However, it is not unreasonable interference to reasonably do any of the following (relevantly): to seek clarification of a question; to challenge an improper question put to the relevant person; and to challenge the way in which a question is put: s 424(2).

30. [30]
    Before excluding a support person, from being present during questioning, the police officer must warn the person not to interfere with the questioning, give the person one further opportunity to stop unreasonably interfering with the questioning and tell the person that he or she may be excluded from being present if he or she continues to interfere unreasonably with the questioning: s 425.

31. [31]
    There are additional provisions in Division 5 dealing with the exclusion of support persons if a police officer reasonably considers a support person is unable to properly perform their role and, in the particular circumstances, it would be in the interests of the relevant person to exclude the person and arrange for another support person to be present during questioning: s 427(1).

32. [32]
    Examples of the circumstances in which a person may be unable to properly perform the role of a support person include the following:

1. (a)
   the person’s ability to perform the role is substantially impaired by alcohol or a drug, to the extent that the person is unable to act in the best interests of the relevant person;

2. (b)
   the person has impaired capacity which prevents them from acting in the best interests of the relevant person;

3. (c)
   the person is, or appears to be, unwilling to perform the role of a support person because of illness, injury, pain, tiredness or a similar cause;

4. (d)
   the person has an affiliation, association or other relationship with the police officer questioning the relevant person;

5. (e)
   the person has a relationship of authority with the relevant person that may prevent the person from acting in the best interests of the relevant person;

6. (f)
   the person is a victim of the offence or a friend of the victim;

7. (g)
   the person witnessed the commission of the offence;

: s 428(3). That section does not limit the circumstances in which a person may be unable to properly perform the role of a support person: s 428(2).

33. [33]
    If a police officer considers that a support person is unable to properly perform the role of the support person, the police officer must (i.e. is obliged to) exclude the support person from being present during questioning, explain to them the reasons for the exclusion and record (in writing or electronically) the explanation: s 429.

34. [34]
    If a police officer excludes a support person, the police officer must advise the child that he or she may choose another person to be present as a support person during questioning: s 430(c). In addition, questioning must be delayed for a reasonable time to allow another person to be present as a support person during questioning: s 430(b). That particular requirement applies only to the questioning of Aboriginal and Torres Strait Islander persons children and persons with impaired capacity: s 430(b).

35. [35]
    Division 6 of the Act deals with cautioning and rights of persons. A police officer must, before a relevant person is questioned, caution the person in the way required under the Responsibilities Code: s 431(1). The caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency: s 431(2). If the police officer reasonably suspects the person does not understand the caution, the officer may ask the person to explain the meaning of the caution in his or her own words: s 431(3). If necessary, the police officer must further explain the caution: s 431(4).

36. [36]
    If a police officer reasonably suspects a relevant person is unable, because of inadequate knowledge of the English language or a physical disability, to speak with reasonable fluency in English, before starting to question the person the police officer must arrange for the presence of an interpreter and delay the questioning or investigation until the interpreter is present: s 433.

37. [37]
    The caution referred to in s 431 is the caution required under the Police Responsibilities Code, contained in Schedule 9 of the Police Powers and Responsibilities Regulation 2012 (PPRR). The Responsibilities Code contains the following relevant provisions. Section 23 requires police to inform the person of their right to communicate with a friend, relative or lawyer and if they reasonably suspect the person does not understand the information given, the police officer may ask the person to explain the meaning of the information in the person’s own words. Under s 25, a police officer who is about to question a relevant person who is an adult Aboriginal or Torres Strait Islander must first ask questions necessary to establish the person’s level of education and understanding: s 25(1). The questions the police may ask include questions that may help the police officer decide if the person is capable of understanding the questions put to them, what is happening to them and the person’s rights at law, and is capable of effectively communicating answers to the questions, and is aware of the reasons the questions are being asked: s 25(3).

38. [38]
    A police officer must caution a relevant person about the person’s right to silence in a way substantially complying with the following:-

“Before I ask you any questions I must tell you that you have the right to remain silent. This means you do not have to say anything, answer any question or make any statement unless you wish to do so. However, if you do say something or make a statement, it may later be used as evidence. Do you understand?”

:s 26(1). If the police officer reasonably suspects the relevant person does not understand the caution, the police officer may ask the person to explain the meaning of the caution in the person’s own words: s 26(2). If necessary, the police officer must further explain the caution: s 26(3).

39. [39]
    To assist the police officer in forming a reasonable suspicion about whether a person is able to speak with reasonable fluency in English and whether to arrange for the presence of an interpreter during questioning, the police may ask questions: ss 28(1) and (2). The police officer may ask questions that may help him or her decide whether the person is capable of understanding the questions, is capable of understanding what is happening, is capable of understanding the person’s rights at law, is capable of effectively communicating answers to the questions, and is aware of the reason the questions are being asked: s 28(3).

The applicant’s submissions

40. [40]
    The applicant submitted that there were numerous breaches of the PPRA and the Responsibilities Code including failing to explain properly to the applicant his right to silence, failing to explain properly to the applicant his right to speak to a lawyer, conducting an interview in circumstances where his levels of comprehension were so deficient as to justify an interpreter and permitting the presence of the applicant’s mother as a support person when she did not discharge her obligations properly.

41. [41]
    The applicant submits that, for those reasons, the prosecution cannot discharge its onus in demonstrating that the interview that took place was a voluntary one and in any event, the court would exercise its discretion in ruling the interview inadmissible on the basis of unfairness to the applicant.

42. [42]
    In summary, the applicant contends that:-

1. (a)
   the applicant, who was 12 years old and attending Grade 7 at school, on his own admission was not very good at reading and his lack of understanding of the questions was starkly exposed by his responses to various questions;

2. (b)
   the applicant did not understand whether he had in fact been interviewed by police in the past 24 hours, what “free will” was, what force was or what a threat meant;

3. (c)
   the police officer used complex terms when speaking to the applicant and did not break the questioning into distinct subject areas;

4. (d)
   the applicant said he did not understand what his right to silence meant nor what a court was;

5. (e)
   the police officer abdicated her responsibilities to the child’s mother who was present as the support person;

6. (f)
   the mother’s response to the police officer’s questions about whether the child understood the right to silence was deficient;

7. (g)
   there were a number of occasions where the child simply gave a monosyllabic response “yeah”.

8. (h)
   the mother did not have a proper understanding of her responsibilities as a support person;

1. (i)
   at times the applicant spoke in Creole;

10. (j)
    at times the police officer descended into cross examination;

10. (k)
    a number of times the mother exhorted the applicant to answer the police officer’s questions.

The respondent’s submissions

43. [43]
    The respondent concedes that the part of the record of interview after the applicant’s mother puts pressure on the applicant to answer the police officer’s questions, by admonishing him and telling him to answer or to speak, should be excluded. In total, the transcript of the police interview is 26 pages. The respondent concedes that all of the interview from page 16, line 47 onwards should be excluded but submits that the interview up to that point is admissible on the basis that all of the appropriate warnings were given and explained to the applicant and his support person.

44. [44]
    In summary the respondent submits that:

1. (a)
   the police officer told the applicant that she wanted to talk to him about an offence of rape that happened on 12 June 2016 at the relevant location and he acknowledged that he understood;

2. (b)
   she explained to him that he was not under arrest and explained his right to silence;

3. (c)
   she asked the applicant’s mother if she thought the applicant understood this and the mother indicated “yes’;

4. (d)
   she explained the right to telephone or speak to a friend or relative and a lawyer;

5. (e)
   the applicant confirmed he was happy to have his mother act as his support person;

6. (f)
   the mother had been given the appropriate information for support persons in documentary form and had read and understood them;

7. (g)
   the police officer gave the applicant and his mother the choice or opportunity to speak in Creole as this was the applicant’s first language; and

8. (h)
   the applicant had no difficulty in communicating in English.

45. [45]
    With respect to the offending, in the interview the applicant agreed that he was at the relevant house on the day, that his mother sent him home to get some cordial, that the complainant went with him, that he went with the complainant into his mother’s room, he removed her shorts and pants and put his “private into her private” and also that later on the footpath he put his “prick” in the complainant’s mouth twice.

46. [46]
    The respondent relied upon the complainant’s disclosures in her police interview on 12 June 2016. Almost two years after her interview, on 16 and 17 March 2018, a psychologist assessed the complainant’s capacity and found that she “does not meet the competency standard (basic or truth – lie) and as such would not be able to give evidence on oath. It may be appropriate, given that she is now six years old for another assessment to be done pre-trial.”

47. [47]
    In addition to the complainant’s evidence, there was preliminary complaint evidence from the complainant’s mother. She said that she saw a small blood droplet on the inside of the shorts the complainant was wearing on the night of the offending. She said that the complainant told her that it was the applicant’s blood from when he was chasing after horses and fell. The respondent submitted that that was consistent with what the applicant told police in his interview that he had been doing on the day of the offending, including that he got blood on his “private” from falling over when chasing a horse.^[20]

Consideration

48. [48]
    The Recommended National Standards for Working with Interpreters in Courts and Tribunal^[21] establish recommended and optimal practices for Australian courts and legal practitioners. The standards include a four part test for determining the need for an interpreter which includes the following components:

1. Part 1: ask the party or witness about an interpreter using an open question. If the witness indicates they would like an interpreter, stop the discussion and arrange for an interpreter to be present. If the party has difficulty answering the question, stop the discussion and arrange for an interpreter to be present. If the witness indicates they do not want an interpreter, proceed to Part 2.

2. Part 2: assess speaking ability – ask questions that require a narrative response. Ask the witness to speak to you in narrative (story) form by asking open-ended background questions. If the party does not respond with anything more than a few words, make several further attempts at eliciting a longer response. If unsuccessful, then it is likely the party cannot express himself or herself adequately or confidently in English. Stop the interview and arrange for an interpreter to be present. If the party is able to give satisfactory or somewhat satisfactory responses, proceed to Part 3.

3. Part 3: assess speaking and comprehension relevant to the context. For example, write down two sets of two medium length sentences using the style and some of the terms that the witness will encounter in the court. Read each set back to the witness and ask them to explain back to you what you just said.

4. Part 4: assess communication. “A party is likely to need an interpreter if:

• The person has difficulty articulating back what you said to them.
• The person only speaks in short sentences (four to five words or less) or mainly gives one word answers.
• The person consistently agrees with your questions or propositions you put to them.
• The person frequently responds inappropriately to your comments or questions (e.g. responding with ‘yes’ to ‘what’ or ‘where’ questions).
• You are sometimes mystified as to what exactly the person is telling you even when the words and grammar they are using are clear to you.
• The person appears to contradict themselves, and is unaware of the apparent contradiction.
• The person does not add significant amounts of new vocabulary to the conversation. They rely on using the words or phrases that you have previously said to them.
• The person does not use English grammatically. E.g. mixes up pronouns (‘he’) instead of (‘she’); uses the past tense incorrectly (‘he look at me’).
• You find yourself frequently needing to restate and simplify your utterances.”

49. [49]
    While these standards are directed to legal practitioners and courts, rather than police officers, they are nonetheless helpful in assessing the circumstances here.

50. [50]
    I watched the video recording of the applicant’s police interview, which was about one hour and 20 minutes long. By way of general observation, the applicant avoided eye contact with the police officer and his mother, maintained long periods of silence in response to many of the police officer’s questions, often darted his eyes from his mother to the police officer and back after answering certain questions, fidgeted with his hands under his shirt and pulled his shirt in front of his face and slumped down in his chair. His body language suggested an attitude of deference. There were a number of occasions where he tended to agree with propositions put to him, regardless of whether he truly agreed with them or even understood them (gratuitous concurrence).

51. [51]
    At the start of the interview, before the applicant had the opportunity to answer any questions, his mother (who was physically much larger than him and sitting right next to him) exhorted him to “sit up straight”^[22] and to answer questions by saying “just you talk”.^[23] That exhortation from the applicant’s mother, before the police officer had even had the opportunity to caution the applicant, fundamentally cut across any later information the police officer gave the applicant about his right to remain silent.

52. [52]
    After telling the applicant that she was investigating the offence of rape which happened on 12 June 2016, the following exchange then occurred:-

53. [53]
    Shortly after this, when asking questions of the applicant’s mother to establish that she understood the proper limits of her role as a support person, the police officer acknowledged that there may be a language barrier and in effect, asked the mother to act as an interpreter:

54. [54]
    A number of things are immediately apparent from those initial exchanges. The applicant, a 12 year old boy, had been taken to the police station by, and was interviewed in the presence of, his mother as his support person. His responses indicated clearly that he did not understand basic legal concepts. The police officer did not ask the applicant or his mother whether they would like an interpreter. The applicant clearly had difficulty answering some of the initial questions. The police officer did not ask the applicant to speak in a narrative form by asking him open-ended background questions. The police officer did not ask the applicant to explain in his own words what she had said so that she could check that they understood each other. The applicant could not in fact tell the police officer what she had said to him. The applicant gave monosyllabic answers. Upon hearing those answers, the police officer should have formed the reasonable suspicion that an interpreter was required because the applicant was not capable of understanding the questions, and what was happening and his rights in law: s 28 Responsibilities Code. At that point the police officer should have stopped the interview and arranged for an interpreter to be present.

55. [55]
    Based on the applicant’s answers up to that point, there was a proper basis for a reasonable suspicion that the applicant did not understand the caution. The police officer should have asked the applicant to explain the meaning of the caution in his own words. The police officer did not do that, in breach of s 26(2) of the Responsibilities Code.

56. [56]
    The answers given by the applicant should have caused the police officer to decide that the applicant was not capable of understanding the questions put to him, what was happening to him and his rights at law and he was not capable of effectively communicating answers to the questions, for the purposes of s 25(3) Responsibilities Code.

57. [57]
    The police officer did not:

• give the caution in, or have it translated into, a language in which the applicant was able to communicate with reasonable fluency, in breach of s 431(2) PPRA;
• ask the applicant to explain the meaning of the caution in his own words, in circumstances where she would have reasonably suspected that the applicant did not understand the caution, in breach of s 431(3) PPRA.

Instead, she simply deferred to the applicant’s mother, asking her whether she thought he understood that he did not have to talk to her today. The mother’s response to this was an equivocal “Mmm”, followed by a “Yeah”.  The answers given by the applicant would have caused the police officer to reasonably suspect that he was unable, because of inadequate knowledge of the English language, to speak with reasonable fluency in English and therefore she was required to arrange for an interpreter and to delay the questioning until the interpreter was present. The police officer failed to do that, in breach of s 433 PPRA. It was inappropriate for the police officer to ask the support person to act as an interpreter for the applicant in those circumstances.

58. [58]
    The answers the applicant gave following the initial cautions only served to confirm the observations above. For example, when asked to describe his house, the applicant was either unable, or reluctant, to do so:

59. [59]
    When the police officer asked him about his education, the following exchange occurred:

60. [60]
    The police officer then attempted to ask the applicant to explain what his favourite subject was at school and what he did in it. This exchange, which occupies almost two pages of the record of interview, elicited only monosyllabic answers or “I don’t know”.^[28]

The police officer then asked the applicant this:

61. [61]
    That question was complicated, obscure, involved a number of different propositions and used language which the applicant was highly unlikely to understand, given his previous responses.

62. [62]
    When the police officer asked the applicant about the alleged offending, this exchange occurred:

63. [63]
    Again, the police officer recognised that the applicant may not be fluent in English but failed to take any steps to arrange an interpreter. Instead, she pressed the applicant to answer by prompting him “What happened”, “What happened next?" and generally urging him to answer.^[30]

64. [64]
    At this point, the applicant’s mother, the support person, began to be actively involved in the interview and exhorted the applicant to answer questions, by saying: “Talk”^[31]; “Answer, [applicant], or I gonna talk for you.”^[32]; [Spoke to him in Creole]^[33]; [In response to a question about “privates”]  “What do you call him?”^[34]; “Sit up straight and answer for your [indistinct]”^[35]; “Answer”^[36]; “[applicant], talk, when it happen?  Talk.”^[37]; “How many time you been doing? Talk, Mr Quiet, talk.”^[38]; “Talk, Mr Quiet, talk. Talk, how come you been doing – how come you be do this thing?  Mmm. [applicant], talk, I want to go out so hurry up.”^[39]; “You ever do this thing to another girl, hey?  Answer.”^[40]; “Call her name, [indistinct].”^[41]; “Talk. [applicant], no stay quiet. Talk.”^[42]; “You have to talk. Not stop quiet.”^[43]; “Get your arm from shirt… [applicant], answer. Get that arm from shirt.”^[44]

65. [65]
    It is clear from these exchanges that the applicant’s mother, as his support person, had a relationship of authority with the applicant that prevented her from acting in his best interests, contrary to s 428(3)(e) PPRA. The mother was unable to properly perform the role of a support person. At the start of the interview, when the police officer asked the mother to explain her understanding of the written information for support persons, the mother simply read from the document and her answer was unresponsive.^[45]

66. [66]
    When it became clear that the mother was unable to properly perform her role as support person, the police officer had an obligation to exclude the mother from being present during questioning: s 429(2) PPRA. The police officer failed to do so, in breach of that section. Each of the mother’s exhortations for the applicant to answer questions occurred only after there had been a long pause following a question by the police officer. It was reasonable to infer from those long pauses that the applicant did not wish to answer the question or did not understand the question. Nonetheless, his mother urged him to answer questions. Once she began to do that, her conduct amounted to unreasonable interference with questioning for the purposes of s 424 PPRA. In breach of s 425 PPRA, the police officer failed to warn the mother not to interfere with the questioning, give her an opportunity to stop, and tell her she may be excluded if she continued to interfere unreasonably.

67. [67]
    There are a number of other examples in the interview when either the applicant or his mother spoke in Creole language. When that occurred there was no attempt by the police officer to clarify the meaning of what was said. There was also a section of the interview when the applicant explained, in halting language, about an injury which had occurred to his “private parts” while he was chasing a horse.^[46] It is clear from that exchange that the applicant had only a limited ability to explain things in English.

68. [68]
    The interview reached its nadir with the following exchange, in which the applicant initially gave no response, then a nonsensical answer and then an answer that suggested gratuitous concurrence:

Conclusion

69. [69]
    There is no doubt about the gravity of the alleged offences. The rape of a child is one of the most heinous crimes in this court and there is a strong public interest in the conviction of those who commit the offence. The admissions made were probative. However, if the prosecution cannot discharge its burden of proving the admissions were made voluntarily, they will not be admissible.

70. [70]
    The interview involved a number of breaches of the PPRA and Responsibilities Code including by failing to explain properly to the applicant his right to silence and, his right to speak to a lawyer, by conducting the interview in circumstances where his levels of comprehension justified an interpreter and by failing to intervene when the support person did not discharge her obligations as required.

71. [71]
    In the circumstances, I am satisfied that the admissions made during the interview were made because “the will of the confessionalist was overborne by the conduct of a person or persons in authority”.^[48] Put another way, I am not satisfied that the applicant understood that he had a free choice to speak or remain silent and that the interview involved him exercising that free choice.

72. [72]
    In forming that conclusion I have had regard to all of the above matters but in particular, the applicant’s young age, his language difficulties in communicating in English, the nature and complexity of the language used by the police officer and her explanation of the various concepts, the presence of his mother as the support person and the applicant’s responses during the interview.

73. [73]
    For completeness, I have also had regard to a psychologist’s report tendered by the applicant dated 11 April 2018, based on an interview between the psychologist and the applicant on 6 April 2018. The applicant’s counsel relied upon that report, subject to two qualifications: first, the long period of time (almost two years) between the date of the interview and the date of the offending and police interview; and second, that the tests administered were not specifically designed for use with Indigenous people and therefore caution must be exercised when interpreting test results.

74. [74]
    In that report, the psychologist concluded, on the basis of the test results, that the applicant had “low average to average general ability” in intelligence and that his listening comprehension level was equivalent to a child in Year 1 of primary school. With respect to the police interview, the psychologist expressed the opinion that the applicant didn’t understand that he didn’t have to answer questions, that anything he did say to police could be used as evidence and that he could have a lawyer present. The psychologist concluded that the applicant’s understanding of the law and legal processes was very limited at the time of the alleged offences, that he did not understand much of the police interview and that he did not understand the explanation of some his rights as explained to him at that time.

75. [75]
    Given the qualifications identified, I give that report limited weight. However it does corroborate the findings I have made independently from my own viewing of the record of police interview.

76. [76]
    Having found that the prosecution has failed to discharge its onus of demonstrating that the applicant participated in the record of interview voluntarily, the interview must be excluded in its entirety.

77. [77]
    Therefore it is not necessary to determine, for the purposes of this application, whether I should exercise my discretion to exclude the interview on the grounds of unfairness and I do not express an opinion about that issue.

78. [78]
    The application to exclude the police record of interview is allowed. The interview is excluded.