R v TR [2026] SASC 78

Prosecution: R Counsel: MR K LESSES - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: TR Counsel: MR J POWELL SC WITH MS S KRISHNAN - Solicitor: LEGAL SERVICES COMMISSION (SA) Hearing Date/s: 10/04/2026 File No/s: SCCRM-25-006358 B SUPREME COURT OF SOUTH AUSTRALIA (Criminal: Voir Dire) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. R v TR [2026] SASC 78 Judgment of the Honourable Justice McDonald 25 May 2026 CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - RECORDS OF INTERVIEW - DISCRETION TO EXCLUDE CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - PROPRIETY OF POLICE QUESTIONING AND OTHER CONDUCT BY POLICE - JUVENILES CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED - GENERALLY EVIDENCE - GENERAL PRINCIPLES - VOIR DIRE - ADMISSIONS This is an application made by the accused to exclude evidence at trial. This includes evidence of his initial exchange with police upon their arrival at the scene of the offending, as well as the interview conducted by police at Berri Police Station. The basis of the application is three-fold: 1. The accused was not properly advised of his arrest rights pursuant to s 14(2) of the Young Offenders Act 1993 (SA). 2. It would be unfair to admit the evidence at trial due to the accused’s Autism Spectrum Disorder (‘ASD’). 3. The person selected by police to be present at the accused’s police interview was not a suitable person to represent his interests. The prosecution contended that the police appropriately interacted with and interrogated the accused in a proper and lawful way. It was argued that police properly cautioned the accused pursuant to s 79A of the Summary Offences Act 1953 (SA). It was argued that, whilst the accused’s ASD is a relevant consideration, it does not justify the exclusion of the evidence. -- 1 of 31 -- Counsel for the accused argued that the police failed to comply with s 14(2) in that the accused did not have the ‘nature of the allegations’ explained to him, he was not informed of his right to legal representation, and the adult present during the police interview was not nominated by the accused and was not appropriate. The accused’s counsel argued that it was unlawful and improper to conduct the police interview in absence of strict compliance with s 14(2). It was further contended that the accused’s diagnosis of ASD impaired his ability to understand the rights given to him and the consequences of those rights, particularly in relation to whether he understood the meaning of ‘solicitor’. Held: 1. The initial exchange with police at the scene will be admitted into evidence. 2. The interview conducted at Berri Police Station will be excluded from evidence. Young Offenders Act 1993 (SA) ss 14(2), 16; Summary Offences Act 1953 (SA) ss 79A(1), 79A(1a), referred to. Van Der Meer v The Queen (1988) 62 ALJR 656; R v Swaffield (1998) 192 CLR 159; Police v Jervis (1998) 70 SASR 429, discussed. R v Dolan (1992) 58 SASR 501, considered. -- 2 of 31 -- R v TR [2026] SASC 78 Criminal: Voir Dire McDONALD J. 1 TR has been charged with the offence of attempted murder. The alleged victim is his mother, SR. 2 The offence is said to have occurred in the family car, which was on the driveway at their home address. Immediately after, 000 was called and police attended. Upon their arrival TR walked from under the verandah at the front of the house towards the police. There was an initial brief exchange between TR and two of the police officers (‘the initial exchange’). 3 Shortly thereafter, TR was arrested and conveyed to the Berri Police Station, where he was interviewed. 4 TR has made an application for both the initial exchange and the interview to be excluded from evidence. The basis of the application to exclude the evidence is:1 1. TR was not properly advised of his arrest rights pursuant to s 14(2) of the Young Offenders Act 1993 (SA) (‘YO Act’). 2. It would be unfair to admit the initial exchange and interview in TR’s trial having regard to the impact of his Autism Spectrum Disorder (‘ASD’). 3. The person selected by police to be present during the defendant’s interview was not a suitable person to represent his interests. 5 I have determined that the initial exchange will be admitted into evidence however the interview conducted at the Berri Police Station will be excluded. 6 These are my reasons. Factual overview 7 At the time of the alleged offences, TR was 17 years and eight months of age. He has two younger brothers, CR, who was aged 13, and RB, who was aged 12. 8 Growing up, TR had a dysfunctional relationship with his mother. He lived with SR until he was in year 5 at school, at which time he moved out of the family home to live with his maternal grandparents. He lived with them until his grandmother passed away. He then lived with a friend’s family however he 1 FDN 60 at [6]. -- 3 of 31 -- [2026] SASC 78 McDonald J 2 returned to live with his mother and siblings in 2024 when his behaviour became unmanageable. 9 There has been a history of TR being physically violent towards SR. 10 In her affidavit, SR described TR’s violent and abusive behaviour towards her, commencing prior to him moving in with his grandparents. It recommenced when he returned to live with SR in about 2024. SR explained that “it was going ok for the first few months, but he [had] started becoming increasingly scary with his behaviour”.2 SR provided some examples of TR’s behaviour towards her, in particular, of occasions on which he struck her whilst she was driving the car.3 The incident most proximate to the alleged offence took place on 16 October 2024. On that occasion there was an argument in the car about TR’s behaviour as SR was driving him home from school. She described the following as taking place:4 When I parked at home, I saw that [TR] has gone into a trance again and I could see his pupils getting bigger. He was staring straight ahead and was not talking but breathing very heavily. I tried to reassure [TR] that everything was ok. I was talking to him from the driver’s seat, and he was seat in the front passenger seat. I went to get out of the vehicle, and he has struck me to the face with his elbow, I called out as my partner was inside and he came outside and spoke to [TR] who stated that he hit me because I would not let him drive. 11 Police attended at TR’s home address as a result of this incident. They reattended on 20 October 2024 (the day before the alleged offence) and spoke to TR about his conduct. After they left, SR noticed nothing out of the ordinary about TR’s behaviour. 21 October 2024 12 On 21 October 2024, SR and her three sons got into the family car for her to drive them to school. TR was the last person to leave the house and get into the car. He was seated in the rear passenger seat directly behind SR. RB was in the front passenger seat and CR was behind him. 13 It is the prosecution case that as SR commenced reversing out of the driveway, she heard a noise behind her. She then felt extreme force as a consequence of TR trying to grab her throat from behind. Initially, SR believed that TR was attempting to hit her, so in order to avoid this she moved forward in her seat. TR again tried to grab SR’s neck area. At this point RB yelled out “he has a knife” and CR removed a knife from TR’s hand.5 2 VDD5 at [15]. 3 VDD5 at [20]. 4 VDD5 at [20]. 5 FDN 7 at [1.7]. -- 4 of 31 -- [2026] SASC 78 McDonald J 3 14 Throughout this incident, TR was silent and remained in the backseat. He was looking straight ahead when the knife was taken from him. After he was disarmed, TR got out of the car and went inside of the house. 15 SR locked herself and her two younger sons inside of the car and called the police. 16 The police arrived at TR’s home address at about 8.21am. At that time, SR and her two younger sons were still locked in their vehicle on the driveway. TR walked out from under the verandah and approached the police. At that time the initial exchange took place. This conversation was captured on the police body worn cameras and is difficult to hear. The parties have agreed that the following best/accurately reflects what was said:6 DAVY: Is it [TR]. WALTERS: Sit down on the chair for me [TR]. DAVY: What’s happened this morning [TR]. [TR]: Um I tried to kill my mum. DAVY: Sorry. [TR]: I tried to kill my mum. DAVY: Why did you do that. *Audio is inaudible due to wind* DAVY: Alright are you mum, is that the knife thanks, sorry. *Audio is inaudible due to wind* [SR]: *inaudible* a thousand dollars. DAVY: Oh you’re not gonna have to do that they’re just gonna have a look at you that’s all. Do you wanna wait over there for me mum thanks. You got anything on you still [TR]. Just leave it mate I’ll grab it alright. So I’ve got the knife here on the floor. HUME: You’ve got the knife yep. DAVY: But I’m not sure what else he’s got so I’m just going to give you a quick search [TR] okay so I’ll get you to stand up and put your hands up on this banner up here for me. Thanks mate is there anything else on you. [TR]: No. 6 Statement of Cole Davy, 13 April 2026, Annexure A. -- 5 of 31 -- [2026] SASC 78 McDonald J 4 DAVY: No. Knife’s just there mate. Ah nah the brother I think. Take a seat [TR] thanks mate. I’ll just pop this in the car. 17 At about that time, or shortly after, additional police arrived. The initial patrol continued to deal with TR and other officers dealt with SR and the younger boys. 18 At about 8.24am, TR was searched and arrested for aggravated assault. He was walked to a police cage car where he was provided with his arrest rights. Whilst at the house police seized TR’s mobile telephone, his diary, and the steak knife that he was alleged to have used. 19 TR was conveyed to the Berri Police Station and SR was taken to the hospital where she was treated for small laceration of about 2 centimetres to the right side of her face, just above her jawline. 20 The impugned police interview with TR commenced at 9.31am and concluded at 11.09am, with a break between 10.25am and 10.54am. Upon the resumption of the interview after the break, TR was advised that he was to be charged with the offence of attempted murder. 21 The Director proposes to rely on admissions made during the interview. They form an important part of the prosecution case, in establishing the necessary mens rea for the offence of attempted murder. These include: • That TR’s intention was to kill his mother. • TR “figured it would be the quickest way to stab her in the throat so she would bleed really quickly”. • TR had googled pictures of the throat on his phone to determine where he should stab her. • TR said that he had practiced on himself to see if the knife was sharp enough. • TR described his plan:7 So, I had, I had my, I think I had my hand like this and I was planning to do it hook around the right side of her, but I don’t know why but for some reason I, I think I switched my hand and did it on the right side holding it out like this and only going like on the side of the throat instead of inwards or upwards. • TR explained why he was unsuccessful:8 7 MFI VDP2, Annexure B at 12. 8 MFI VDP2, Annexure B at 13. -- 6 of 31 -- [2026] SASC 78 McDonald J 5 Well she was just moving around moving stuff around and I was trying to be as quick as possible and I think yeah she had I think I did have it right here but she had moved so it was more like here and yeah I just didn’t jam it in quick enough. • When asked how and why the knife came to be in his pocket TR said “I grabbed it from the kitchen and put it in my pocket…[s]o I could try and kill my mum”.9 • TR said that he had got up at 5.00am and dressed for school “[s]o just in case if they were to see me put it in my pocket wh-while we’re getting ready for school they wouldn’t know”.10 • When asked when he had made the decision to kill SR, TR said “[l]ast night I thought oh I’d have to set an alarm and Friday is when I got the thought, oh I should probably kill mum”.11 • When asked why he stabbed his mother, TR said:12 Because I don’t think she’ll change anytime soon. … She’s like just, just not treating me as humans should. … Just being very rude with the way she speaks to me not like realising what she’s like, how she uses her words and the tone it’s actually very rude and really disconnecting from your son and it’s not nice. It’s really nasty actually. • When asked specifically about what had happened that morning to cause this to occur:13 Um, I’m trying to remember what I asked her to um, to confirm that yeah she’s still being rude, um I think oh, oh, um, I was up early this morning and one of the cats wanted me to feed him so I did and I think she, yeah she already she’d realised someone has fed one of the cats or both of them so she like instead of just coming to me or each of us boys and asking who fed which cat or both she just started just, just like yelling out who fed the cat like and just expecting everyone to like come to her instead of her coming up to us individually well not even like individually just I don’t even know just not rude at least and I was in the toilet and like there was just no decency like just there was no respect, like no kindness just straight up demanding what she wants like I, ah, I just can’t take it anymore. 9 MFI VDP2, Annexure B at 8. 10 MFI VDP2, Annexure B at 8. 11 MFI VDP2, Annexure B at 8. 12 MFI VDP2, Annexure B at 3-4. 13 MFI VDP2, Annexure B at 4. -- 7 of 31 -- [2026] SASC 78 McDonald J 6 • TR was asked if “[s]itting here right now do you still want to kill your mother?”, he responded “[y]eah”.14 • When asked “what do you wish for Mum to be right now? Dead or alive?”, TR responded “[j]ust a different person”.15 TR’s diagnosis of Autism Spectrum Disorder 22 Central to this application is TR’s diagnosis of Autism Spectrum Disorder (‘ASD’). In addition, he has a borderline IQ and a language impairment. 23 By way of background, TR was diagnosed with Global Development Delay when he was in year 2 at school. In July 2014, he was the subject of a paediatric medical assessment at the Riverland Medical Clinic in Berri. At the time he was seven years and four months of age. No diagnosis was made during that assessment. It was noted that “[TR] has had some mild learning difficulties [with reading] but he is progressing well. He previously had witnessed domestic violence and had some regressional behaviour which does appear to be now settling”.16 24 It would seem that between this time and his arrest no further assessments of TR were undertaken. Initially upon his arrest, TR was detained in the Youth Training Centre, Kurlana Tapa. In December 2024, whilst still in custody, TR received a diagnosis of Autism Spectrum Disorder. The diagnostic report noted that “[TR] meets the DSM-5 diagnostic criteria for Autism Spectrum Disorder. According to the DSM-5 severity rating scale, it is assessed that [TR’s] social communication difficulties are rated at Severity Level 2, which indicates [TR] requires substantial support”.17 In addition to his ASD diagnosis, TR was diagnosed with a language impairment. 25 In order to assist the Court in determining the issues on this application, counsel for TR obtained a report from Dr Robyn Young, a clinical psychologist. Dr Young also gave evidence on the voir dire. Dr Young has extensive expertise in diagnosing and treating Autism Spectrum Disorder. There was no challenge to Dr Young’s expertise. 26 For the purpose of preparing her report Dr Young met with TR on two occasions, in May and July 2025. The first appointment lasted approximately three hours, and the latter was one hour. In her report Dr Young dealt both generally with TR’s diagnosis and also specifically addressed questions provided by TR’s counsel that related to his understanding of the police interview process. 14 MFI VDP2, Annexure B at 16. 15 MFI VDP2, Annexure B at 23. 16 VDD6 at 6. 17 VDD6 at 7. -- 8 of 31 -- [2026] SASC 78 McDonald J 7 27 In order to conduct her assessment and address his ASD diagnosis, Dr Young received TR’s previous diagnostic report. She used this as part of the information gathering process and to corroborate her observations and assessment of TR. 28 Dr Young undertook a review of TR’s diagnosis of ASD utilising the criteria as set out in the Diagnostic and Statistical Manual of Mental Disorders – 5th Edition (‘DSM-5’). Given that there is no challenge to the ASD diagnosis, I do not propose to set out Dr Young’s consideration of the application of those various criteria to TR, and her assessment of the evidence of his ASD. It is sufficient to note that Dr Young is of the view that TR clearly meets the criteria for a diagnosis of ASD at a Severity Level 2, which means that he requires substantial support. 29 Dr Young also undertook an assessment of TR’s cognitive functioning. Although TR’s results varied across the subtests for the four areas of cognitive ability, Dr Young found him to be in the borderline range, at the 5th percentile.18 She explained that this score means that TR’s cognitive functioning is lower than approximately 95 per cent of his same aged peers. Generally, his profile suggests he likely has trouble keeping up with his peers in circumstances that require thinking and reasoning abilities. He performed better on tasks that did not rely on time to process information and found time-pressured tasks that required faster information processing more challenging. 30 Dr Young summarised the impact of TR’s diagnosis when he is under pressure in the following terms:19 [TR] is a young autistic man with a borderline IQ. He has poor processing speed and a diagnosed language impairment. He needs information explained to him specifically in terms he can understand. A youth who is overwhelmed, dissociative or unable to respond, may be unable to process information and thus fully comprehend his rights. Given his Autism Spectrum Disorder (Level 2), borderline intellectual functioning, extremely low processing speed, and language impairment, [TR] is particularly vulnerable to cognitive overload under stress and become overwhelmed. … 31 As I have said, in her report Dr Young also answered specific questions addressing TR’s ability to understand and engage in the police arrest and interview process. She further elaborated on those answers in her evidence on the voir dire. I will say something about that aspect of her evidence when I come to deal with the various arguments made by counsel. Legislative regime 32 Section 79A(1) of the Summary Offences Act 1953 (SA) (‘SO Act’) provides the arrest rights for any person, whether adult or youth, when apprehended by police. It states: 18 VDD6 at 20. 19 VDD6 at 25. -- 9 of 31 -- [2026] SASC 78 McDonald J 8 79A—Rights on arrest (1) Subject to this section, where a person is apprehended by a police officer (whether with or without a warrant)— (a) the person is entitled to make, in the presence of a police officer, one telephone call to a nominated relative or friend to inform the relative or friend of his or her whereabouts; and (b) where the person is apprehended on suspicion of having committed an offence— (i) the person is entitled to have a solicitor, relative or friend (in the case of a minor the relative or friend must be an adult) present during any interrogation or investigation to which the person is subjected while in custody; and (ii) if English is not the person’s native language—the person is entitled, if he or she so requires, to be assisted at an interrogation by an interpreter; and (iii) the person is, while in custody, entitled to refrain from answering any question (unless required to answer the question under this or any other Act or law). … 33 Section 79A(1a) provides additional protection for youths in that it places an obligation on police to ensure that a suitable adult is present before any interview can take place: (1a) Where a minor has been apprehended on suspicion of having committed an offence and— (a) the minor does not nominate a solicitor, relative or friend to be present during an interrogation or investigation relating to the suspected offence; or (b) the solicitor, relative or friend nominated by the minor is unavailable or unwilling to attend the interrogation or investigation, then, subject to subsection (1b), the minor must not be subjected to an interrogation or investigation until the police officer in charge of the investigation of the suspected offence has secured the presence of— (c) a person, or a person of a class, nominated by the Chief Executive within the meaning of the Youth Justice Administration Act 2016 to represent the interests of children subject to criminal investigation; or (d) where no such person is available, some other person (not being a minor, a police officer or an employee of the Police Department) who, in the opinion of the police officer, is a suitable person to represent the interests of the minor. 34 Section 14(2) of the Young Offenders Act 1993 (SA) (‘YO Act’) creates further requirements for the police to ensure that a young person subject to arrest -- 10 of 31 -- [2026] SASC 78 McDonald J 9 has their rights explained to them in a manner that they understand. It relevantly provides: (2) If a youth is arrested on suspicion of having committed an offence, and the youth is to be dealt with under this Act for the offence, the officer responsible for the arrest and custody of the youth must, as soon as practicable after the arrest— (a) explain to the youth the nature of the allegations against him or her; and (b) inform the youth of his or her right to seek legal representation; and (c) take all reasonable steps to inform— (i) the guardian of the youth; (ii) if a guardian is not available—an adult person nominated by the youth who has had a close association with the youth or has been counselling, advising or aiding the youth, of the arrest and invite him or her to be present during any interrogation or investigation to which the youth is subjected while in custody. 35 The requirements in s 14(2) are separate and distinct requirements, additional to those contained in s 79A of the SO Act, albeit that there is a degree of overlap. Section 14(2) has the effect of adapting and modifying the means by which the rights set out in s 79A are provided to a youth, such that they are conveyed in plain and simple language. This reflects a recognition of the lack of maturity and inexperience of youths, and the power imbalance that exists between a youth and the police officer conducting the interview. Does s 14(2) of the YO Act apply? 36 A preliminary issue arose as to whether s 14(2) of the YO Act applied to TR given that he was charged in the Magistrates Court rather than the Youth Court pursuant to s 16 of the YO Act. That section provides: 16—Where charge is to be laid (1) Subject to this section, if a youth is to be charged with an offence to which this Act applies, the charge must be laid before the Court. (2) The DPP may, instead of laying a charge of an offence against a youth before the Court, lay the charge before the Magistrates Court if— (a) the youth is charged with a major indictable offence; and (b) the DPP is of the opinion that the youth poses an appreciable risk to the safety of the community and should, therefore, be dealt with in the same way as an adult. 37 The argument in support of an interpretation of s 14(2) not applying to TR relied upon the words “and the youth is to be dealt with under this Act for the offence”. It was suggested that given TR is being tried as an adult, he is no longer -- 11 of 31 -- [2026] SASC 78 McDonald J 10 being dealt with under the YO Act. To interpret the section otherwise would leave no work for these words to do. 38 Whilst there is a superficial attraction to this argument, on a deeper analysis of the section and in the context of the overall legislative scheme, it is apparent that such an interpretation would be inconsistent with the objectives of the YO Act and could not have been Parliament’s intent in the inclusion of the section. 39 Section 14 falls within “Part 3 – Arrest and custody of suspected offenders”. It is preceded by “Part 2 – Minor offences”, which creates a regime for dealing with young offenders in a manner other than through the court processes. It involves a series of alternative options to the laying of charges before a court, including informal cautions and family conferences. 40 Part 3 relates to cases in which the decision is made to proceed by way of a prosecution based on the seriousness of the charges and the circumstances of the youth. 41 Section 14(2) applies at the point in time at which a youth has been arrested and creates obligations for police at the time of the arrest. The section refers to the requirements arising “as soon as practicable after the arrest”. It necessarily follows that it is at a time where no decision has been made as to the appropriate forum in which the prosecution should take place. More than that, the police who are responsible for the arrest and to whom s 14(2) relates, have no role in the decision making process as to whether the youth is to be tried as an adult. That is a matter for the Director of Public Prosecutions. 42 It follows it would be entirely impracticable, if not impossible, to attempt to delineate between those youths to be tried in the Youth Court as compared to those who will be tried as adults, at the point of the arrest. It would also be inconsistent with the obvious policy intent behind the section, namely to ensure that youths who are to be prosecuted before the courts fully understand their legal predicament and their right to legal representation, and to ensure that they have the additional protection of the presence of a support person. Such safeguards are all the more necessary when a youth is charged with an offence that is of such seriousness that it warrants prosecution in an adult court. 43 Section 14(2) therefore applied to the arrest of TR.20 Consideration The initial exchange 44 The basis upon which the application is made to exclude the initial exchange is that the police failed to caution TR prior to speaking with him on their arrival at the house. It was contended that by the time they arrived, the police, Senior Constable Walters and his partner Senior Constable Davy in particular, had 20 By the end of submissions there was no contest over this issue. -- 12 of 31 -- [2026] SASC 78 McDonald J 11 sufficient information to suspect that TR had attempted to stab his mother with a knife. It was submitted that in those circumstances, TR should have been advised of his right to silence prior to police embarking on any conversation with him.21 45 The authorities are clear that police are required to caution a suspect and advise them of their right to silence at the point at which the investigation moves from the investigatory stage to the accusatory stage.22 It is at that time that the police have formed a reasonable cause to suspect that the person has committed the relevant crime.23 There may be some circumstances however in which fairness would dictate that the caution should be given at an earlier point in time, in order to put a person on notice that they are a possible suspect. 46 TR contended that this was such a case, particularly given his ASD which has the potential to impair his ability to understand his rights and their consequences. It was submitted that immediately upon their arrival the police should have cautioned TR when approaching him for the first time. 47 In my view, this contention is highly artificial and does not reflect the reality of the situation that the police were confronted with. It is necessary for the Court to balance the required freedom of action of police to investigate crimes with the fair treatment of a suspect. There was nothing about the manner in which the police dealt with TR that was unfair. Prior to the initial exchange the police did not have knowledge of TR’s identity or his involvement in the events that had been reported. The police were met by a young man who came calmly walking towards them from the verandah. The statements made by TR were not elicited by targeted police questioning but rather, by open ended questions that it was incumbent upon the police to ask. 48 This was also not a situation in which it could be suggested that TR was at a disadvantage because he was unaware of the nature of the allegations for which the police were in attendance. There is no dispute about what preceded the police attendance, and it is clear from the subsequent interview that TR was alive to the nature of the allegations. The Police Interview 49 Although there are three complaints that form the basis of the application to exclude the police interview,24 there is a degree of overlap and concurrency of issues. It is however instructive to deal with each issue separately before giving consideration to the combined effect of the complaints that have been raised. 21 FDN 60 at [24]-[26]. 22 Van Der Meer v The Queen (1988) 62 ALJR 656 at 661. 23 R v Dolan (1992) 58 SASR 501 at 505. 24 FDN 41. -- 13 of 31 -- [2026] SASC 78 McDonald J 12 1. The defendant was not properly advised of his arrest rights pursuant to s 14(2) of the YO Act 50 TR was placed under arrest by Senior Constable Simon Walters at his home address at about 8.24am, that is approximately three minutes after the arrival of the first police patrol. Prior to his arrest there had been the initial exchange and police had spoken with SR, presumably to obtain her account of events. 51 By the time that Senior Constable Walters made the decision to arrest TR he was aware that there had been a “violent disturbance” at the house,25 that TR had been armed with a knife and that he had used that knife to “stab” his mother in the cheek.26 He was aware that TR was a youth, which would also have been self- evident because TR was wearing a school uniform. 52 Immediately prior to arresting TR, Senior Constable Walters turned to the senior officer present, Sergeant Geyer (who had been liaising with police speaking with SR) and said, “Are we good for an arrest”.27 Sergeant Geyer responded in the affirmative. At that point TR was placed under arrest for the offence of aggravated assault. He was immediately cautioned and then taken to the rear of a police cage car where he was given his arrest rights. Senior Constable Walters explained that the reason that this process was adopted was because although each of the police present had their body worn cameras activated, it was standard procedure to record the provision of the rights on a hand held camera.28 That is what in fact occurred. 53 It should be noted that there is no challenge to the legality of TR’s arrest nor is there any suggestion that the police did not comply with s 79A of the SO Act. If TR was an adult without the diagnosis of ASD with a borderline intellect, no issue could be raised about the adequacy of or the manner in which the police provided him with his rights. 54 Immediately prior to being provided with his arrest rights, TR demonstrated some confusion about where he lived. When asked where he lived, he said “Um, I’m not even sure”.29 He acknowledged that he knew where he was at that point in time, but when asked if he knew what the address was, he said “Yeah. I know the street but not the number”.30 He was then asked what the street was and he responded “Um, I do know it I’m just having trouble to remember um, Derrick Road”.31 Derrick Road was the correct street name. 55 During the course of being provided with his rights, TR told Senior Constable Walters that he did not understand what was meant by “you’re entitled to make in the presence of a police officer one telephone call to a nominated relative or friend 25 T4. 26 T8. 27 T14. 28 T10. 29 MFI VDP2, Annexure A at 1. 30 MFI VDP2, Annexure A at 1. 31 MFI VDP2, Annexure A at 1. -- 14 of 31 -- [2026] SASC 78 McDonald J 13 to inform them of your whereabouts. Do you understand that right?”.32 Senior Constable Walters attempted to break it down and explain what this right meant in further detail. Given the significance of this exchange to the arguments made by counsel for TR, and the opinions provided by Dr Young, I set it out in full:33 Q9. Alright too easy so uh, as I say mate this point in time, you’re being placed under arrest for uh, on suspicion of aggravated assault alright. You’re entitled to make in the presence of a police officer one telephone call to a nominated relative or friend to inform them of your whereabouts. Do you understand that right? A. I don’t understand that. Q10. You don’t? A. I don’t. Q11. Okay so you’re, so what I’m saying is you can make a phone call. A. Oh, yep. Q12. So, you have the right to make a phone call okay, would you like to make a phone call? A. No thank you. Q13. No thank you, alright if that changes at any point let us know. A. Alright. Q14. You’re entitled to have a solicitor, relative or friend present during any interrogation or investigation to which you may be subjected to whilst in custody. Do you understand that right? A. Yes, I do. Q15. Do you have any requests in relation to that right? A. No, I do not. 56 Subsequent to this, TR indicated that he understood the remainder of his rights, namely the right to silence, the right to an interpreter, the right to apply for bail, and the warning that anything that he said may be taken down and given in evidence. 57 Senior Constable Walters completed giving TR his rights at approximately 8.35am. There was then a period of delay during which Senior Constable Walters obtained further information from other police that had been gathered as a result of their conversations with SR. He also attended to various administrative duties 32 MFI VDP2 Annexure A at 1-2. 33 MFI VDP2, Annexure A at 1-2. -- 15 of 31 -- [2026] SASC 78 McDonald J 14 that arose as a result of the arrest. During that time TR remained seated in the back of the police car. 58 Police arrived with TR at the Berri Police Station at about 8.51am. Upon their arrival Senior Constable Walters and his partner, Constable Davy, presented TR to the custody staff. Senior Constable Walters left for a period of time so that he could go and speak with members of the Criminal Investigation Branch (‘CIB’) about the matter. In evidence, he explained that the reason that he did this was because of the potential seriousness of the charges. He said he wanted to better understand what the process would involve going forward. He explained that ordinarily there is a delineation of labour between uniformed police officers and the CIB, with the CIB taking on responsibility for the investigation of more serious charges. At this point in time, this investigation sat between the two. He elaborated:34 As far as I was aware at the time, the limited information was, irrespective of the comments made by [TR] not under caution, it was an aggravated assault, just from what I had. So going forward if it’s aggravated assault that’s the kind of matter that a uniformed person would tend to investigate, if it’s going to go into the realms of a more serious offence which this had the potential to, a detective would take carriage of it. 59 As a consequence of speaking with the CIB it was agreed that Detective Brevet Sergeant Tamara Day would sit in during the interview to assist. During the initial part of the interview it was Senior Constable Walters who questioned TR in the presence of Detective Day. In cross-examination he agreed that the interview was being conducted under Detective Day’s guidance.35 60 The formal interview commenced at 9.31am. Present were Senior Constable Walters, Constable Davy, Detective Day, WG (SR’s partner) and TR. WG was there as the responsible adult as required by s 79A(1a) of the SO Act. 61 At the outset of the interview TR was reminded of the rights that he had been given on his arrest. Senior Constable Walters said:36 We gave you some arrest rights, part of those arrest rights were, you’re entitled to have a solicitor, relative or friend present during any interrogation or investigation to which you may be subjected to whilst in custody. Now we’re gonna interview you now would you like someone else present here with you? TR responded, “No thank you”. The following exchange then took place:37 Q17. No worries um, alright no worries so ah, [TR] I’m gonna ask you some further questions, you don’t have to answer these questions but anything you say is being recorded and may be given in evidence. Do you understand that? 34 T21. 35 T44. 36 MFI VDP2, Annexure B at 2. 37 MFI VDP2, Annexure B at 2-3. -- 16 of 31 -- [2026] SASC 78 McDonald J 15 A. Yes, I do. Q18. Can you explain to me what you understand about that caution I’ve just given you? A. um, just um, I don’t know. Q19. Alright so essentially, we’re gonna ask you some questions. A. Yes. Q20. You understand that? A. Yes. Q21. Do you understand you don’t have to answer these questions? A. Yes, I do. Q22. Do you also understand that these cameras are on and recording you? A. Yes. Q23. Obviously, what you say is being recorded… A. mmhmm. Q24. On those cameras we can produce them later on. A. Yep. Q25. In court, if needed. Do you understand that? A. Yes, I do. Q26. Happy with that? Q27. [DAY] Mmhmm. 62 It was Senior Constable Walters’ evidence that he addressed the question of “Happy with that?” to Detective Day. In cross-examination he agreed that he took Detective Day’s answer of “Mmhmm” to be an affirmative response.38 63 The interview commenced with Senior Constable Walters leading the questioning of TR. At 10.25am the interview was stopped. At that point TR was advised by Detective Day that the interview was to be concluded however TR was advised they would “…come back to and chat to you further about what your actual charges are going to be um, because this is a really serious matter do you understand that?”39 64 Although there was no evidence on this topic, it would seem that once the camera was turned off Detective Day liaised with the other police officers and in 38 T44. 39 MFI VDP2, Annexure B at 26. -- 17 of 31 -- [2026] SASC 78 McDonald J 16 light of the admissions made by TR the decision was made to upgrade the charge to attempted murder. 65 The interview resumed at 10.54am, at which time TR was re-cautioned. Upon the resumption of the interview, Detective Day took over questioning TR. After some initial questions, that essentially confirmed the version that TR had already provided, Detective Day advised TR that he was to be charged with attempted murder.40 This was the first time that this more serious charge had been mentioned and it was Senior Constable Walters’ evidence that he had not been aware that the charge was to be upgraded before this was said.41 66 TR was asked by Detective Day if he understood what he had been told and more particularly if he understood the concepts of “murder” and an “attempt”. He told her that he did and explained that it was “[t]rying to kill someone”.42 67 In cross-examination Senior Constable Walters candidly admitted that he was not aware of the requirements under s 14(2) of the YO Act. He said that he knew that there were different processes for arresting youths as compared to adults, and in particular that it was necessary for there to be an adult present. When asked whether he specifically knew about the arrest procedures contained in s 14(2) of the YO Act he responded, “I don’t know them, no”.43 He unsurprisingly conceded that having no knowledge of those requirements he did not turn his mind to them in his dealings with TR. When it was brought to his attention that one of the requirements under the section was that he “explain to the youth the nature of the allegations”, Senior Constable Walters agreed that there was additional information that he could have given to TR to explain the nature of an aggravated assault, had he known of s 14(2) of the YO Act.44 68 It was the Director’s submission that the issue is not whether Senior Constable Walters was aware of the requirements under s 14(2) of the YO Act, but rather whether there had been compliance with the section. It was contended that there had been at least substantial compliance.45 69 A convenient starting point for the consideration of this issue is to identify what is required by s 14(2) of the YO Act that is above and beyond that necessary to comply with s 79A of the SO Act. Explanation of the allegations 70 Section 14(2)(a) requires that as soon as practicable after the arrest the youth is to be provided with an explanation of the nature of the allegations. Although not expressly required under s 79A of the SO Act, there can be no doubt that there 40 MFI VDP2, Annexure B at 36. 41 T49. 42 MFI VDP2, Annexure B at 36. 43 T39. 44 T40. 45 FDN 52 at [13]. -- 18 of 31 -- [2026] SASC 78 McDonald J 17 is a requirement that any person who is arrested is entitled to know of the allegations against them that are the basis of the arrest. Assuming that the YO Act requires more than that, the nature of the additional information that is required will depend on the facts and circumstances of each case. 71 Before TR was arrested, he volunteered to the police that he had attempted to kill his mother earlier that day. There can be no suggestion that he was under any misapprehension as to why the police were in attendance and why they were interviewing him. 72 There is also no real dispute that TR produced a knife and placed it on or in the area of SR’s neck. The likely dispute at trial will be his intention in doing so. 73 TR was arrested for aggravated assault. The arrest took place within a short time of him using the knife against his mother. Although Senior Constable Walters did not go on and elaborate any further about the basis of the allegations, in my view, in the circumstances of this case, no more was necessary. The nature of the allegations would have been immediately apparent to TR. That much was confirmed by the manner in which he responded to questions during the course of the interview. 74 Counsel for TR also raised an issue with the fact that TR was not advised that he was to be charged with attempted murder until towards the end of the interview.46 It was submitted that “[t]he allegations, and importantly the severity of these as they related to the charge of attempted murder, were never put to the defendant as soon as practicable after his arrest or at any stage of the interview”.47 It was submitted that in the circumstances where the police must have had in their contemplation the prospect that the defendant would (or could) be charged with attempted murder, it was insufficient to merely advise him that he was under arrest for aggravated assault.48 75 There is no merit to this complaint. This was an unusual situation. Although the 000 report was about an assault with a knife, when the police arrived at the scene TR was calm and compliant.49 Senior Constable Walters observed no injuries to SR.50 Despite the comments made by TR in the initial exchange, it was unsurprising that TR was charged with aggravated assault. To suggest that it was in the contemplation of Senior Constable Walters, or other police present, that TR may be recharged with attempted murder, is unrealistic and does not reflect the state of the evidence that police had at that time. 76 The bona fides of the police on this topic is further supported by the fact that it was Senior Constable Walters who conducted the initial interview with TR. The 46 FDN 60 at [23]. 47 FDN 60 at [24]. 48 FDN 60 at [25]. 49 T15. 50 T21. -- 19 of 31 -- [2026] SASC 78 McDonald J 18 situation however changed during the course of the interview when TR made detailed admissions to planning and intending to kill SR. It was only after the interview was paused, I assume to allow Detective Day to confer with others, that Detective Day took over the interview. On resumption, and having confirmed the salient details of his account, Detective Day advised TR that he was to be charged with attempted murder. As I have previously set out, Detective Day checked that TR understood what was meant by “attempted murder”. It is apparent from the exchange that followed that TR understood the nature of the charge and was well aware of the allegations underpinning it. 77 In my view, there was substantial compliance with s 14(2)(a) of the YO Act. Legal Representation 78 Section 14(2)(b) of the YO Act also requires that as soon as practicable after the arrest, the officer responsible for the arrest must inform the youth of their right to seek legal representation. This obligation compliments s 79A(1)(b) which provides that a person apprehended on suspicion of having committed an offence “is entitled to have a solicitor, relative or friend (in the case of a minor the relative or friend must be an adult) present during an interrogation or investigation to which the person is subjected while in custody”. The combined effect of these sections places particular emphasis on the need to ensure that a youth understands that they have the right to be assisted by a lawyer and that they should be afforded a reasonable opportunity to avail themselves of that right. 79 Senior Constable Walters provided TR with his right to have a solicitor present at any interview or interrogation as required under s 79A “as soon as reasonably practicable” at the scene.51 That right was repeated at the outset of the interview at the police station.52 On neither occasion did TR indicate that he had any difficulty in understanding that right, or that he wished to exercise it. The information provided by Senior Constable Walters was sufficient to satisfy the requirements under s 79A of the SO Act. The complaint however is that, as a consequence of s 14(2) of the YO Act, Senior Constable Walters was required to go further. Further, both in terms of explaining what was meant by that right, and also that it related not only to having a solicitor present in the interview, but also legal representation more broadly. Neither of those explanations were provided. That however does not necessarily lead to the exclusion of the interview, but enlivens the discretion for it to be excluded. This issue needs to be determined taking into account all relevant considerations including the potential impact on TR of this oversight by police, particularly given his diagnosis of ASD with a borderline IQ. 51 MFI VDP2, Annexure A at 2. 52 MFI VDP2, Annexure B at 2. -- 20 of 31 -- [2026] SASC 78 McDonald J 19 Accompanying adult 80 Section 79A(1a) of the SO Act requires that when a youth has been apprehended on suspicion of having committed an offence and they do not nominate a solicitor, friend or relative to be present at an interview (or that person is not available or willing), then they are not to be interviewed until an appropriate adult (as identified in the section) is available to be present to support the youth in the interview. That person cannot be a police officer or an employee of the Police Department.53 The section creates a prohibition against the interviewing of a youth other than in the presence of a suitable adult who is independent from the police. 81 Section 14(2) of the YO Act similarly envisages the involvement of an adult in the process of interviewing a youth. The focus is however on the provision of information to the guardian of a youth about their entitlement to be present during the interview process. In the event that a guardian is not available, the information should instead be provided to “an adult person nominated by the youth who has a close association with the youth or has been counselling, advising or aiding the youth”.54 82 Two observations should be made about this section. Firstly, it would seem that it was Parliament’s intention for the nominated adult to have some form of pre-existing relationship with the youth, no doubt to enable them to provide meaningful support. 83 The second is that s 14(2)(c), unlike s 79A, is not mandatory, in that the YO Act requires that the arresting officer “take[s] all reasonable steps”. 84 The combined effect of the two sections is that a youth must not be interviewed absent an appropriate support person. In the event that the youth does not nominate as a solicitor, relative or friend, it is for the arresting officer to nominate a person who “in the opinion of the police officer, is a suitable person to represent the interests of the minor”.55 In addition, the police officer must take all reasonable steps to inform the guardian of the youth, or if the guardian is not available, an adult nominated by the youth with the requisite pre-existing relationship, of the arrest and invite them to be present for the interview.56 85 In terms of compliance with s 79A of the SO Act, TR did not nominate a solicitor, friend or relative, and absent such a request arrangements were made for WG to be present. 53 Summary Offences Act 1953 (SA) s 79A(1a)(d). 54 Young Offenders Act 1993 (SA) s 14(2)(c)(ii). 55 Summary Offences Act 1953 (SA) s 79A(1a)(d). 56 Young Offenders Act 1993 (SA) s 14(2)(c). -- 21 of 31 -- [2026] SASC 78 McDonald J 20 86 Senior Constable Walters was cross-examined about whether in his view WG was an appropriate person to represent TR’s interests. When asked about whether he thought WG was a suitable choice, he responded:57 I did not know their relationship at all and said, was told that close relationship - sorry I can’t remember the phrase that was used, ‘stepfather’ is the one I’m recalling but I don’t know if it was verbatim, was nominated by someone to attend. I was of the opinion if other officers had organised for his attendance, they were in a lot better position to assess his suitability than I was. 87 He went on to further elaborate:58 … the officers in the survey office told me that he was in attendance, they have been speaking to people from the scene and they were okay with that occurring. So I don’t know who sent him down, whether the actual physical - not physical, the verbal asking of going down was from [SR] it could have been, but my understanding was the police officers that were investigating were happy that he was coming down. 88 When asked whether he ever considered that there may be a conflict in having WG present, Senior Constable Walters conceded that ideally WG was not the best person to take on this role however he assumed that no-one else was available or that others had decided that he was the most suitable person.59 He went on to further explain his state of mind about the suitability of WG:60 Just to clarify it. People, having a partner to a victim when you look at it just like that, isn’t the best pick no, but he’s also - I use the phrase like a parental role I suppose with someone. So he could also be seen as being dad to him. I don’t know his exact relationship, it could be looked at it either way that he was either not appropriate at all because he is the partner of a victim or he is very appropriate because he’s his parent. So both of those thoughts crossed my mind. 89 Senior Constable Walters explained that it was also necessary to factor in the need to interview TR sooner rather than later in order to progress the investigation. 90 I am satisfied that in all of the circumstances s 79A(1a) was complied with in that Senior Constable Walters was satisfied that WG was a suitable person to represent the interests of TR. Whilst in arriving at that position he relied upon the decisions made by other police officers, that was not unreasonable. It was a dynamic situation in which it was necessary to make judgement calls based on the available information. Whilst Senior Constable Walters candidly accepted that WG was not the ideal person to fulfil this role, there has been no suggestion that there was any better option available. In fact, on the evidence before me about TR’s background and personal circumstances, it would seem unlikely that there was a more appropriate adult, particularly given the requirements under s 14(2) of 57 T51-52. 58 T52. 59 T52. 60 T53. -- 22 of 31 -- [2026] SASC 78 McDonald J 21 the YO Act that ideally there should be a pre-existing relationship between the adult and the youth. 91 Turning then to the requirements under s 14(2) of the YO Act. TR’s guardian at that time was also the alleged victim of his offence. Although she was aware of the interview, it was obviously inappropriate for her to be present. The alternative was a person who at that time had a close association with TR. 92 The approach adopted by the police was compliant with s 14(2)(c) of the YO Act. Whilst there is a separate complaint raised about the impact on TR of the selection of WG to be the support person, that does not mean that there was a breach of s 14(2)(c). Conclusion – Section 14(2) of the YO Act 93 Although Senior Constable Walters was unaware of the existence of, and therefore his obligations under s 14(2) of the YO Act, the circumstances surrounding TR’s arrest and interview were such that there was in fact substantial compliance with the requirements of that section. 94 The only issue that remains relates to s 14(2)(b) and the requirement that TR was informed of his rights to seek legal representation. The arrest rights were given in the standard form regularly recited to adults, with no adaptations or modifications made to ensure that TR understood the options that were available to him. Although Senior Constable Walters utilised the wording of s 79A of SO Act to advise TR of this right, the issue that remains is whether that was an effective communication of that right. 95 In order to finally determine this issue it is necessary to consider the second complaint that is the basis of this application and the evidence of Dr Young. 2. It would be unfair to admit the interviews in the defendant’s trial having regard to the impact of his Autism Spectrum Disorder 96 The central issue underpinning this complaint is whether TR understood that he was entitled to legal representation or to have a lawyer present whilst he was interviewed by police. 97 TR did not give evidence on the voir dire. It is therefore necessary for me to rely upon the words spoken both at the scene and during the interview and the expert opinion evidence of Dr Young. 98 When initially given his right to have a solicitor present at any interview, whilst in the back of the police cage car, TR indicated that he understood that right. That response needs to be considered in the context that shortly before this, when advised of his right to make a telephone call to a nominated friend or relative, TR said that he did not understand that right. -- 23 of 31 -- [2026] SASC 78 McDonald J 22 99 At the outset of the interview at the Berri Police Station, the right to have a solicitor was repeated to TR. However, on this occasion he was not asked if he understood what that meant. Instead, at the end of reciting the right, Senior Constable Walters said “Now we’re gonna interview you now would you like someone else present here with you?”, to which TR responded, “No thank you”.61 100 In her report Dr Young was asked to specifically address TR’s ability to understand his rights, and she was asked to respond to the following question:62 Was [TR] able to completely understand his rights as provided by police upon his record of interview? That is, did he understand his rights as per both section 79A of the Summary Offences Act in addition to his arrest rights under s14(2) of the Young Offender’s [sic] Act. Were the rights and consequences given in a manner that someone with his diagnosis may understand? 101 Dr Young reported that during her meetings with TR he told her that at the time of the police interview he did not know what was meant by a solicitor. This prompted her to ask him more directed questions. Dr Young asked TR what he understood was meant by nominated relative and he said that it meant that he could choose to have a relative present.63 She then asked him if he knew what was meant by a solicitor and he said “I didn’t know what a solicitor meant but I knew what a family and friend meant”.64 Dr Young asked TR about why he didn’t question this when he didn’t know the word solicitor and he responded:65 I think at the time I didn’t think it mattered that, I didn’t think it mattered, I did not know what purpose that would serve and family and friend is not going to be able to help me. I didn’t know what a solicitor meant. I felt too guilty to ask what a solicitor meant. 102 Dr Young asked TR a further series of questions on this topic:66 Dr Young: Have you heard of the word solicitor? [TR]: Yes. Dr Young: Had you heard of the word solicitor then? [TR]: Yes, I just, um, didn’t know what it meant and still don’t know what it means. Dr Young: Can you give me another word for solicitor? [TR]: No, I can’t. Dr Young: Is it a doctor? [TR]: It’s not a doctor. 61 MFI VDP2, Annexure B at 2. 62 VDD6 at 21. 63 VDD6 at 23. 64 VDD6 at 23. 65 VDD6 at 23. 66 VDD6 at 24-25. -- 24 of 31 -- [2026] SASC 78 McDonald J 23 Dr Young: Okay. Is it a teacher? [TR]: I really don’t know. Dr Young: Okay. Could it be a lawyer? [TR]: I’m not sure. Dr Young: Okay. Okay. I’m telling you now that a solicitor is lawyer. [TR]: Okay. Dr Young: Did you understand that you could have had a lawyer present at the time? [TR]: No. Dr Young: You didn’t? [TR]: No. Dr Young: Okay. Did you want a lawyer present at the time? [TR]: Yeah, that, um, would have made my decisions clearer. Yeah, I would have been able to. Yeah, knowing now how good like Sari is with helped me understanding what understanding and answering my questions. So, I definitely have thought that would have been what I needed. Yeah, that would have been great. Dr Young: But you didn’t ask for a lawyer? [TR]: No. Dr Young: Why not? [TR]: I didn’t know I could do that. Dr Young: Okay. But somehow or another your stepdad came into the interview. How did he get called? [TR]: I’m not 100 sure. No. Dr Young: So, when he was in the room, they asked you again if you wanted anyone else present and you again said no. [TR]: Yeah, I, um. Yeah. Though what I, um. Yeah, um. Dr Young: Just. [TR]: Yeah, I didn’t know what I was thinking at the time. 103 Dr Young observed that during the police interview the term solicitor was not qualified or explained. Although Senior Constable Walters had endeavoured to break down and explain what was meant by the “caution”, he had not embarked on a similar approach in relation to legal representation. -- 25 of 31 -- [2026] SASC 78 McDonald J 24 104 Dr Young expressed the view that given TR’s lack of knowledge of the word solicitor, he did not fully understand his right to a lawyer or legal representation, nor what value this might provide. She said that, in addition, it was clear that TR did not understand the consequences of not receiving legal representation as he underestimated the seriousness of his charges. In support of this conclusion, she relied on the following portion of the interview:67 Q169. And how long away that would’ve been? Like what do you think a penalty for killing someone might be? A. I don’t even know. I don’t know like I don’t even know um, a year probably. Maybe more. Q170. How serious do you think it is? A. Pretty serious. 105 In her report Dr Young explained the impact that TR’s ASD and low intellectual functioning would have had on his ability to comprehend and fully appreciate his legal rights. She said:68 [TR] is a young autistic man with a borderline IQ. He has poor processing speed and a diagnosed language impairment. He needs information explained to him specifically in terms he can understand. A youth who is overwhelmed, dissociative or unable to respond, may be unable to process information and thus fully comprehend his rights. Given his Autism Spectrum Disorder (Level 2), borderline intellectual functioning, extremely low processing speed, and language impairment, [TR] is particularly vulnerable to cognitive overload under stress and become overwhelmed. In such circumstances, the autonomic nervous system may shift into a dissociative state, impairing comprehension, memory encoding, and decision-making. [TR’s] own comments – such as “I didn’t know what I was thinking at the time” and “I felt too guilty to ask what a solicitor meant” – further indicate confusion, emotional flooding, and reduced capacity for self-advocacy. These factors would significantly limit his capacity to meaningfully understand or exercise his legal rights at the time. … His cognitive and emotional profile – evident in the interview – would have required adapted explanation, scaffolding, and comprehension checking to satisfy these obligations. 106 In her evidence Dr Young remained firm in her opinion that TR had not understood what was meant by the word solicitor and hence his right to legal representation. She explained that although he came across as having a relatively good vocabulary and as generally understanding of the questions in the interview,69 these were matters that she had taken into account and they did not detract from her opinion that during the interview TR did not understand his right to legal representation. 107 It was Dr Young’s evidence that whilst on the face of it, a response of “Yes I do” to a question about understanding his rights may appear to indicate that TR 67 MFI VDP2, Annexure B at 17. 68 VDD6 at 25-26. 69 T70. -- 26 of 31 -- [2026] SASC 78 McDonald J 25 did understand, absent further clarification, that cannot be accepted as necessarily so.70 Dr Young provided an example of what she meant by this:71 … For an autistic person, that might need to be more transparent for him to explain who that might be. I’ve had situations where the arrest rights have been read to an autistic person who’s adopted and didn’t understand that a relative, because he was adopted - he thought they had to be related to them. So you’re never quite sure how an autistic person has grasped it unless you actually ask for qualifications. 108 In re-examination Dr Young was asked additional questions about TR’s apparent capacity to comprehend English and the impact that had on her overall opinion about his understanding of his right to a lawyer. She further explained:72 …So can he understand and respond to questions? I think we’ve covered that; yes, he can. He can give, at times, a response, whether it’s coherent or whether it’s true in terms of, for example, where the children are sleeping, I can’t comment on the veracity of those claims, but what I can say is that he is an autistic person that needs to have, when someone is interacting with him they need to be aware of that autism and they need to be supporting his autism and understanding how an autistic person might interact with someone in a reciprocal environment, which I considered broadly in terms being a social environment. So my qualification would be yes, he can in some circumstances, but I remain of the very strong belief that I don’t believe he understood his arrest rights in terms of his opportunity to get a solicitor or lawyer. 3. The person selected by police to be present during TR’s interview was not a suitable person to represent his interests 109 Although I have found that there was compliance with s 79A(1a) of the SO Act and s 14(2)(c) of the YO Act, there remains the outstanding issue of whether it was inappropriate for WG to be present as the support person during TR’s police interview. 110 Central to this aspect of the application to exclude the interview is the relationship that existed between TR and WG at that time. The evidence relied upon to establish the nature of the relationship comes from the affidavit of SR73 and the demeanour and body language of WG during the course of the interview. 111 As to the former, SR described commencing a relationship with WG at about the time that her mother passed away, that is at about the time that TR moved to live with his friend’s family. She said that whilst they did not live together WG would regularly come over to her home. Although her children did not refer to WG as “dad”, they had a good relationship with him. The situation however changed with TR as there had been a deterioration in his relationship with WG as WG did not agree with the way in which TR was treating SR. SR provided no further details of the manner in which the relationship had deteriorated. 70 T66, T77. 71 T82. 72 T87-88. 73 VDD5. -- 27 of 31 -- [2026] SASC 78 McDonald J 26 112 As mentioned previously, it is unclear as to precisely how it came to be that WG attended at the police station in order to be present for TR’s interview. Senior Constable Walters gave evidence that not only did he have no involvement in arranging for WG to be present, but he was unaware of who had.74 The first time he had any involvement with WG was in the front foyer area of the Berri Police Station. When Senior Constable Walters spoke with him, WG indicated that he was prepared to sit in on the interview. 113 Senior Constable Walters understood that WG was the partner of SR and effectively the stepfather of TR. Senior Constable Walters confirmed with WG that he was SR’s partner and that he was in attendance for the purpose of sitting in on the interview. 114 Prior to meeting with WG, Senior Constable Walters had spoken with TR about WG being present for the interview. At the time of the conversation TR was in the cell complex having his fingerprints taken. In cross-examination Senior Constable Walters was asked about whether he was concerned that TR was distracted at the time that he spoke with him on this topic. He said that did not hold any concerns because he felt that TR was answering the questions in a manner that indicated that he understood.75 TR agreed to WG being present for the interview. 115 As can be seen from the video, WG was present through the entirety of the interview. An issue has been raised about WG’s demeanour during the interview, in that he did not interact with TR or engage in the interview process. Counsel for TR summarised their complaint about WG in these terms:76 [WG] displayed no apparent understanding of or interest in the interview process or the interests of the defendant. He did not look at, or attempt to engage with, the defendant for the duration of the interview. He did not appear to even look at the police officer during the interview. He remained still with his gaze downward or toward the ceiling. 116 There was however a limited role for WG. He was there as a support person and it was therefore not open for him to engage in the interview process. Whilst I accept the observations about WG not looking at TR or the police during the interview, it is difficult to read much into his lack of eye contact, particularly given that TR is a person with ASD. WG may well have been of the view that he best served TR by the avoidance of eye contact. There is nothing that occurred during the course of the interview that would suggest that WG’s presence was detrimental to or negatively impacted upon TR. TR has not given evidence to the contrary. 117 In all of the circumstances, I am satisfied that there was no unfairness that resulted from the presence of WG during the interview. 74 T50-51. 75 T51. 76 FDN 60 at [43]. -- 28 of 31 -- [2026] SASC 78 McDonald J 27 Conclusion The initial exchange 118 The initial exchange that took place when the police first arrived at the scene was a spontaneous conversation that was entirely appropriate in a dynamic and quickly unfolding situation. Although instigated by police, it was a natural response to the circumstances in which the obvious focus was on the safety of the people at the property, rather than conducting a planned, controlled interview. At that point in time the police had not yet reached the accusatory stage of the investigation and there was nothing about the particular circumstances that made it unfair to ask the relevant introductory questions without a caution. 119 No proper basis has been identified upon which the evidence should be excluded. I therefore decline to exclude the initial exchange. The record of interview 120 The circumstances surrounding the record of interview are, however, more nuanced. A number of complaints have been made about the circumstances surrounding and the manner in which the interview was conducted. 121 As is apparent from the preceding discussion, in my view a number of the complaints are without merit. The issues that remain live relate to whether TR fully appreciated his right to legal representation. That issue is relevant in determining whether there has been compliance with s 14(2)(b) of the YO Act, and whether it would be unfair to admit the interview in TR’s trial. It therefore involves consideration of what was traditionally known as the public policy discretion as well as the unfairness discretion, the former requiring that there was some form of illegality or at least impropriety on the part of the police. In R v Swaffield,77 the High Court however favoured the re-expression and simplification of the tests for the admissibility of challenged confessions into a single test. That test involves consideration of whether the confession was voluntary; if so, whether it was reliable; and, if so, whether it should nonetheless be excluded from evidence in the exercise of the overall judicial consideration.78 It is the last limb upon which this application turns. It involves consideration of those matters which in the past the court accepted as relevant under the dual heads of exclusion. They include unfairness to the accused, disproportionate prejudice outweighing the probative value of such evidence, and relevant public policy considerations. 122 It is for TR to establish that the interview should be excluded. Although he did not give evidence, he relies on the evidence of Dr Young in which she expressed the very firm and unwavering opinion that TR did not understand the meaning of the word ‘solicitor’, and therefore could not have fully appreciated his 77 (1998) 192 CLR 159. 78 R v Swaffield (1998) 192 CLR 159 at [69]. -- 29 of 31 -- [2026] SASC 78 McDonald J 28 right to have a lawyer present at the interview, or to an entitlement to legal representation and advice more generally. 123 The purpose of expert evidence is to assist the Court to form a sound judgement on matters requiring specialised knowledge or expertise. Although it is ultimately a matter for the Court to determine whether TR understood his rights and, more particularly, the right to a solicitor, there is no reason to disregard or give limited weight to the opinion evidence of Dr Young on the issues on this voir dire. Dr Young is extremely well qualified, has spent a considerable amount of time with TR, and was able to clearly and convincingly set out the basis upon which she has arrived at her views. 124 Having arrived at the finding that TR did not understand his right to a lawyer, the question then becomes one of whether receiving the evidence would be unfair to TR in the sense that the trial would be unfair. As was explained by the High Court in Van Der Meer v The Queen:79 … the 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… 125 Although in the context of confessional evidence, most of the authorities have been concerned with the obtaining of admissions in circumstances involving some impropriety, unfairness or illegality on the part of law enforcement agencies, unfairness to an accused in connection with confessional evidence can also arise through no fault of those agencies. 126 In Police v Jervis,80 Doyle CJ used, as an example, the case of an admission made by an accused whilst suffering from severe shock, even if the person to whom the admission was made was unaware that the person was suffering from shock. His Honour observed that such circumstances could render the use of the confession unfair and that the law enforcement authorities might have, unwillingly, taken advantage of the state of the accused.81 This example is apposite to TR’s circumstances. Although it is unfortunate that Senior Constable Walters had no knowledge of s 14(2) of the YO Act, I have no doubt that, aware of TR’s youth, he made efforts to ensure that TR was treated fairly. That is not however an answer to the issues identified by Dr Young, issues that would not have been apparent to those who had no knowledge of TR’s ASD and borderline IQ and how that manifested in the manner in which he communicated. 127 In such circumstances to admit the admissions made by TR in the interview would be unfair. The case falls into the category described by the majority in Swaffield as one in which “the admission of the evidence or the obtaining of a 79 (1988) 62 ALJR 656 at 666. 80 (1998) 70 SASR 429. 81 Police v Jervis (1998) 70 SASR 429 at 448. -- 30 of 31 -- [2026] SASC 78 McDonald J 29 conviction on the basis of the evidence is bought at a price which is unacceptable, having regard to contemporary community standards”.82 82 R v Swaffield (1998) 192 CLR 159 at [69]. -- 31 of 31 --