B v The Queen [2005] QDC 59

DISTRICT COURT OF QUEENSLAND CITATION: B v The Queen [2005] QDC 059 PARTIES: B (Applicant) and THE QUEEN (Respondent) FILE NO/S: 102/04 DIVISION: Criminal PROCEEDING: Application for exclusion of evidence pursuant to s590AA of the Criminal Code ORIGINATING COURT: District Court, Maroochydore DELIVERED ON: 18 March 2005 DELIVERED AT: Maroochydore HEARING DATE: 8 March 2005 JUDGE: Judge J.M. Robertson ORDER: Application dismissed CATCHWORDS: CRIMINAL LAW – application to exclude large number of recorded confessions of a juvenile, whether justice of the peace was a “support person” as defined in s.29(1) of the Juvenile Justices Act; whether there is a positive duty on police to check availability of persons listed in definition of “support person” before using justice of the peace, whether Crown can satisfy that there was proper and sufficient reason, whether Crown can rely on s29(4) to support admissibility. Cases cited: R v C [1997] 2 Qd R 465 Bunning v Cross (1978) 141 CLR 54 Statutes cited: Juvenile Justice Act 1992, s.29 Police Powers and Responsibilities Act 2000, Schedule 4 (b)(vi) Acts Interpretation Act 1954, Section 14D COUNSEL: S. Courtney (for the applicant) S. Collins (for the respondent) SOLICITORS: ATSILS (for the applicant) Director of Public Prosecutions (for the respondent) [1] The defendant child seeks to exclude from evidence a number of confessions, including video recorded confessions, on the ground that in conducting the interviews, police have acted contrary to s.29 of the Juvenile Justice Act 1992. -- 1 of 8 -- 2 [2] The defendant was born on 8 June 1988. He is before this court on an indictment containing 163 counts, predominantly entering motor vehicles and stealing or intending to steal, but also a number of counts of burglary and one count of arson of a motor cycle. [3] Section 29 of the Juvenile Justice Act 1992 states: “(1) In a proceeding for an indictable offence, a court must not admit into evidence against the defendant a statement made or given to a police officer by the defendant when a child, unless the court is satisfied a support person was present with the child at the time and place the statement was made or given. (2) Subsection (1) does not apply if: (a) the prosecution satisfies the court there was a proper and sufficient reason for the absence of a support person at the time the statement was made or given; and (b) the court considers that, in the particular circumstances, the statement should be admitted into evidence.” [4] Schedule 4 of the Act states that for a child the term “support person” is as defined in Schedule 4 of the Police Powers and Responsibilities Act 2000. [5] Schedule 4 of the Police Powers and Responsibilities Act 2000 defines “Support Person” as: “(b) for a child – (i) a parent or guardian of the child; or (ii) a lawyer acting for the child; (iii) a person acting for the child who is employed by an agency whose primary purpose is to provide legal services; or (iv) an adult relative or friend of the child who is acceptable to the child; or (v) if the child is an aborigine or Torres Strait islander and no-one mentioned in subparagraph (i) to (iv) is available – a person whose name is included in the list of support persons and interpreters; or (vi) if no-one mentioned in subparagraphs (i) to (v) is available – a justice of the peace, other than a justice of the peace who is a member of the Queensland Police Service or a justice of the peace (commissioner for declarations).” [6] On 31 March 2003, Senior Constable Mackellar spoke to the child in Caloundra and he agreed to go to the police station with him. According to the police officer’s statement, at the Caloundra Juvenile Aid Bureau office he said: “L, who do you want to be present whilst we speak with you” To which the child responded: “Get the J.P. guy I had last time” -- 2 of 8 -- 3 [7] As a result, the police officer contacted Henry Alexander, a Justice of the Peace who then came to the police station, and had a private conversation with the child. The child then spoke to police in Alexander’s presence and made many admissions to a large number of offences. As the police were investigating only the theft of a mobile phone, it was necessary for them to conduct further enquiries, and arrangements were made to have the child return to the police station. On 2 April 2003, in the presence of Alexander, the child was interviewed, and the interview was recorded on audiotapes. At the conclusion of the interview he was charged with a large number of property offences and released on a bail undertaking and taken home. [8] In this recorded interview, the child essentially reiterated that he did not wish to contact a relative, friend and/or solicitor. He was asked: “Okay. Do you understand that the role of Henry today is solely for your welfare to ensure that, whilst speaking to police, that you were treated fairly and that your rights are maintained at all times? – Yes, I do. Do you agree that, from the outset of speaking with you this morning, that Henry’s been present with you at all times? – He has. Okay. I also have to outline to you your right to contact a relative, friend and/or solicitor? – No, I’m right. Okay. I’ll just explain it to you. You do have the right to contact any one of those three persons, and advise them where you are and have any one of those person present during questioning. Is there anyone that you wish to contact to have present in this interview? – No, I’m right with Justice of the Peace. Yeah. Are you happy that Henry is in the room here? – Yeah.” [9] On 8 April the child with Alexander accompanied police on a drive around in which he made further admissions. At 2:38pm on that day, he gave a further interview with Alexander present which was recorded. He was then charged with a further 42 offences, and released on bail. [10] This interview occurred after the drive around, and again, the child was warned and given the same advice by the police officer as he had earlier, and he gave similar responses. [11] At the committal, the police officer was cross-examined about the choice of support person. He agreed that in all his previous dealings with the child, the child’s mother was present as his support person. It was put to him that prior to this, Alexander had not acted as a support person for the child. The police officer was “almost certain that Henry was called on one occasion prior to this”. He said that prior to the first contact on these matters on 31 March 2003, he had been speaking to the child’s mother about the return of the mobile phone. [12] He also acknowledged that he had had contact with the child’s father about living arrangements at around this time, but was unable to recall whether or not he talked to the father about the mobile phone. [13] He was asked about his relationship with the J.P. and he replied: -- 3 of 8 -- 4 “Mr Alexander has availed himself in the 18 to 2 years (sic) that I’ve been at Caloundra for the purpose of being an independent person on interviews in relation to juveniles. That’s been at all hours of the day, night and morning. His services has been required in relation to certain signing of statements. It’s also been in relation to making – swearing out search warrants in relation to various things over that period of time.” [14] He was asked: “Why didn’t you contact his father, seeing you had his mobile number that you’d spoken to him on that evening about this Siemens A55 and --- ? --- L ---- and he’s – was a 14-year old boy, possibly going to be questioned by – about a large number of indictable offences? – L’s main parent was his mother who he normally resided with. He’s only resided with his dad on occasions where him and his mum didn’t get along. How do you know that? – How do I know what? That – about his living arrangements? – Well, I mean, if you ever want to speak to L, you’d go down to where his mother resided and that’s where L generally is staying. L was only ever taken to his father’s after there was a problem between him and his mother.” [15] He agreed that he did not attempt to contact either the mother or father prior to the subsequent interviews. [16] In relation to the 8 April interview and drive around, the police officer said that after the child arrived at the police station, they drove down to Mr Alexander’s place “because my understanding was at that stage that Henry couldn’t get up to the police station due to medical reasons.” [17] Mr Alexander also gave evidence at the committal. He was asked by the prosecution if he’d ever spoken or seen Leon prior to these occasions: “And I’m not interested in the specific details, but have you seen, or spoken to L, prior to these incidences? – No. Never. So, as of the first day then, the 31st of March, you hadn’t had contact with him? – Not really. Not that I recall. Okay? – But see, I see so many children, that I just don’t remember them all. Fair enough? – But I do remember L. It’s – he’s one of those people that you don’t forget.” [18] In his evidence he made a number of observations, from which I conclude that he is a very regular attendee at juvenile interviews with police, at the request of the police. He was not able to actually recall what he said to Leon in their first contact, but was only able to say what he would generally say. Perhaps, his understanding of his role can be gleaned from one exchange in his evidence in chief when he was speaking about the drive around on 8 April: “What occurred in the car? What are you talking about there? – Well, when we went out in the car, and he pointed out all the places he’d been, we had a portable -- 4 of 8 -- 5 recorder and we warned him that he was on recording, if, you know, if there was anything relevant, it would be recorded. But ---- You say “we warned him”? – Oh, not “we”, but I meant the – the detectives warned him. I was sitting beside L. But -----” [19] His memory seemed to improve in cross-examination, as he was able to recall that on 2 April 2003, he spoke to the child and the child declined a solicitor and he just wanted a J.P. He was giving this evidence at the committal on 14 March 2004, some 11 months later, without notes, and presumably having sat in on a number of interviews in the interim. He said he had taken notes but lost them. He then reverted back to “normal practice”, what he would do whenever he acted in this way. [20] There was no evidence called before me on the voir dire. The depositions were tendered. There is nothing to suggest that the child was in any way intimidated, overborne or mistreated by police. The opposite appears to be the case; the evidence suggests that he was extremely co-operative; and on occasions during the drive around appeared to be enjoying the experience, not unlike the behaviour one would expect of a 14 year old boy. It is also clear that when he made admissions, the police took it no further unless they could match a recorded complaint in their records to his admission. [21] The point made by Mr Courtney is a short one. He points out that in the predecessor to s29, which was s9E, a Justice of the Peace was included in the class of persons appropriate as support persons for juveniles being questioned by police. There was no requirement that the other persons mentioned in the section be unavailable before a J.P. is acceptable. [22] Provisions such as s29 are to be read in conjunction with relevant principles of juvenile justice which are set out in a Schedule to the Act, and principle number 4 is apposite: “Because a child tends to be vulnerable in dealings with a person in authority, a child should be given the special protection allowed by this Act during an investigation … in relation to an offence committed, or allegedly committed, by the child.” [23] The parliament clearly decided that s9E required some strengthening in this area; hence the expanded definition of “support person” in Schedule 4 of the Police Powers and Responsibilities Act 2000. Mr Courtney has helpfully reviewed the explanatory notes and second reading speech and Hansard debate which preceded the major amendments to the Juvenile Justice Act, including the change to this section, and there is no reference to the reason for the change. It may have been in response to the judgement of the Court of Appeal in R v C [1997] 2 Qd R 465 although that is not clear. To a limited extent, the observations of the court to the matters to be considered by a court when called on to consider excluding confessional evidence on discretionary grounds are relevant by reference to the retention of those common law discretions in s29(4), which is in similar but perhaps even clearer terms, to its predecessor s9E(5). [24] The evidence in this case is clear. The child said “get the J.P. guy I had last time”. On the evidence of the police officer and the J.P. it is not clear at all that the child -- 5 of 8 -- 6 had had previous contact with the J.P. Given that there is no challenge to this evidence I can safely proceed on the basis that this was said. It is also consistent with what the child said in the recorded interviews. The police officer was in contact with the mother, and she had acted as his support person on nearly all the other occasions in which the child had been investigated by police. The police officer also had the father’s contact details. It is clear he made no effort at all to contact either the mother or the father. He did not because he child said he wanted the J.P. [25] As to why he did not want his mother or father, there is some limited evidence in the cross-examination of Mr Alexander which bears on this topic. Mr Collins referred me to this passage in argument. At page 5 of his examination in chief, Mr Alexander was asked: “Did he explain to you at all, why he didn’t have a member of his family or anything present? – Well – well, he said he was having problems, you know, that he was getting belted, and that his mother drank a lot, and he said that she was a bit of a problem. But I mean, that’s – I don’t know that, because it’s ----- All right. Yes. Did he indicate to you then, that he was happy with you being the person present as a support person? – Yes, he was. He said he was.” [26] It is difficult to give this evidence much weight given that the J.P. was an elderly man who had taken notes but lost them and was giving evidence in March 2004 almost a year after his last contact with the child, and during which year he had had a lot of contact with other juveniles in police stations. [27] I do not think the legislation casts a positive duty on the police officer to independently go through the categories of support persons in (i)-(v) and enquire as to their availability, before using a J.P, however, in the circumstances of this case, on the evidence, the police officer has made no effort at all to contact the mother or father and has not complied with the requirements of the Act which are designed to give children “special protection”. Instead, he has involved a J.P. who seems to be a very regular attendee at the police station for this purpose and who, on the very best view of the evidence, has little or no actual memory of what he said to the child prior to each interview. Mr Courtney described him in a critical way as a co- operative J.P, and on the evidence I think that is a fair description. [28] The argument made by the Crown has a number of strands. Firstly, it argues that once the child has said “get that J.P. guy”, there is no need for the police officer to consider any other category of support person. I do not think the child’s wishes expressed in this way obviated the need for the police to check on the mother’s availability. She had acted as his support person on most of the earlier interviews – she was readily contactable and I infer available. The police officer also had the father’s contact details. I think the Crown’s submission overlooks the specific wording of the Juvenile Justice Act to which I have referred earlier, and to accede to the argument would be to give the court’s imprimatur to a process that, in my opinion, sidesteps the special protection offered to child suspects by the Act. This is more so, when one considers that in the 2002 amendments the wording of the relevant section was strengthened. [29] The second strand to the prosecution’s argument is to rely on the reservation of common law discretions to exclude evidence contained in s29(4). -- 6 of 8 -- 7 [30] I described Mr Collin’s submission on this point as “interesting” because it is the first time I have encountered a situation in which the Crown seeks to rely, in this case, on the Bunning v Cross discretion, to support its argument that the confessions made by the child should be admitted rather than excluded. I think there is a fundamental flaw in his argument. The discretion referred to in cases such as Bunning v Cross (1978) 141 CLR 54 relates to the exclusion and not inclusion of illegally obtained evidence. Section 29(4) is obviously inserted to protect children and it would be wrong, in my opinion, to permit the Crown to rely upon it to support an argument that illegally obtained evidence of confessions should be admitted. To do so would offend the various principles set out in the Act designed to give juveniles special protection. The s29(2) Point [31] This leaves the final strand in the prosecution argument. The effect of my finding is to hold that Mr Alexander was not a support person as defined in the Juvenile Justice Act, therefore s29(2) comes into play. Mr Courtney argues that the circumstances which exist here are not caught by s29(2) particularly when one has regard to the examples given. Care has to be taken in relation to the way in which examples given effect the relevant provision. Section 14D of the Acts Interpretation Act 1954 states: “If an Act includes an example of the operation of a provision – (a) the example is not exhaustive; and (b) the example does not limit, but may extend, the meaning of the provision; and (c) the example and the provision are to be read in the context of each other and the other provisions of the Act, but, if the example and the provision so read are inconsistent, the provision prevails.” [32] In my opinion, the circumstances that pertain here are not excluded from the effect of s29(2). The prosecution must satisfy me that there was a proper and sufficient reason for the absence of a support person, and then I have to be satisfied that, in the particular circumstances, the confessions should be admitted in to evidence, Then, and only then, can the mandatory effect of s29(1) be overcome. In relation to both limbs of s29(2), in my opinion, the following circumstances are relevant: 1. The child here is, on the evidence articulate and intelligent. He was 14 at the time. His birth date is 08 June 1988. 2. On a number of occasions he was informed of his right to have a parent, relative or lawyer present, and on each occasion he elected to have the J.P. present. He was clearly aware of his rights. 3. There is no evidence that he was overborne, intimidated or treated unfairly by the police or the J.P. In fact, the reverse is true. 4. He frequently expressed a desire to clear everything up, and unless his admissions could be linked with a crime complaint, a charge was not laid. -- 7 of 8 -- 8 5. There is no evidence to suggest that any of the admissions he made are, in fact, untrue. [33] Regard must also be had to the important and special protective provisions in the Act designed to protect children. [34] In the very special circumstances of this case I am satisfied that there was a proper and sufficient reason for the “absence of a support person” and that the confessions should be admitted into evidence. [35] I recommend that a copy of my remarks be forwarded to the Director of Public Prosecutions with a view to her considering whether or not it is appropriate to issue a directive to police officers to ensure that in cases involving children, they strictly comply with the requirements of the Juvenile Justice Act. In different circumstances the confessions here would have been excluded; and the public interest would not be well served by an offender escaping justice in relation to such a large number of offences because of a failure by the police to comply with the law. One can understand that police are sometimes tempted to resort to expediency to avoid inconvenience and time-wasting, but that is not acceptable if ultimately it leads to the exclusion of otherwise untainted evidence. -- 8 of 8 --