Children's Court New South Wales Medium Neutral Citation: R v Jai [2023] NSWChC 9 Hearing dates: 14 July 2023 Date of orders: 14 July 2023 Decision date: 21 July 2023 Jurisdiction: Criminal Before: Children's Magistrate Hayes Decision: Evidence not admitted. Catchwords: CHILDREN – Criminal Law – Voir Dire – Admissibility of ERISP Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) Young Offenders Act 1997 (NSW) Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Bin Sulaeman v R [2013] NSWCCA 283 R v Coulstock (1998) 99 A Crim R 143 Fleming v R [2009] NSWCCA 233 Khamisi v R [2015] VSCA 355 R v Phung and Huynh [2001] NSWSC 115 R v Mercury [2019] NSWSC 81 R v H (1996) 85 A Crim R 481 at 485 R v Lee (1950) 82 CLR 133 Regina v Camilleri [2007] NSWCCA 36 Ridgeway v The Queen (1995) 184 CLR 19 Category: Principal judgment Parties: Rex (The Crown) Jai (Young Person) Representation: Mr Brager (Prosecutor) Ms Ozer (Young Person) File Number(s): 2022/00263116 Publication restriction: Pseudonyms have been used to protect the identity of the young person. Introduction – not to be read as part of the Judgment 1. This is the third hearing this week where issues of 'protected admissions' and 'doli interviews' have arisen. 2. The Protected Admission Scheme ('PAS') is operated by NSW Police, Legal Aid NSW and the Aboriginal Legal Service in order to facilitate admissions for the purpose of diverting young people under the Young Offenders Act 1997 (NSW) ('YOA'). 3. The PAS apparently involves the young person ('YP') signing an agreement after an interview with Police. 4. The PAS is not legislated. The Court has not been presented with any details of the PAS. 5. A 'doli interview' is a series of unofficial questions designed to establish that the child's development is such that he or she knew that it was seriously wrong to engage in various types of conduct. The questions typically list offences. The YP is then asked whether the act is seriously wrong or naughty – often informed by the consequence that may flow. 6. The first such hearing finalised on Wednesday. That matter involved a Police interview with a 10-year-old. The Police contacted the Custody Notification Service ('CNS') so the YP could obtain legal advice from an Aboriginal Legal Service solicitor. The solicitor gave advice to participate in an interview believing the matter was to be dealt with under the YOA. The YP participated in an interview. The Prosecution sought to admit the interview. The Prosecution argued that there was never any intention to deal with the matter under the YOA and the admission was not a protected admission. 7. On Thursday there was a protected admission involving a Police interview with an 11-year-old. Because the YP did not attend the Conference, the Prosecution sought to admit the interview at the hearing. 8. On Friday, in this matter, the interview sought to be admitted was a previous interview for a different offence that occurred over 9 months prior to these allegations. That interview was for a stealing offence. In that matter, the YP was to be dealt with under the YOA. There was an electronically recorded interview ('ERISP') that involved a series of questions where the YP was asked whether actions were seriously wrong or naughty. The YP signed a document at the end of the interview. 9. At the end of this hearing the Court advised the parties that it would prepare a written judgment reflecting more fully the Court's decision on the voir dire for the benefit of both parties. 10. The Court was assisted from helpful submissions and interactions with Mr Brager and Ms Ozer. Judgment Background 1. The YP is charged with an aggravated break and enter and carried in a conveyance of 3 September 2022. 2. Before commencing evidence Ms Ozer identified several issues regarding a record of interview: 1. unfairness pursuant to s 90 of the Evidence Act 1995 (NSW) ('EA'), including that the interview was for an unrelated offence in 2021 2. the inadequacy of the caution 3. the YP received no legal advice prior to the interview or when signing the document 4. the support person did not understand their role; and 5. the interview questions were leading - tainting the reliability of answers per s 85 of the EA. 1. The Court agreed that a voir dire was appropriate. 2. It was also agreed that the evidence taken on the voir dire, if admitted, would become evidence in the hearing proper. 3. The Court noted that the discretion given by s 90 of the EA is to be considered after applying the other more specific provisions such as those involving 'impropriety' or 'contravention' (see s 138) or reliability (see s 85). Decision on voir dire 1. This is a voir dire pursuant to s 189 of the EA to determine whether the evidence of a prior ERISP by police with the YP, conducted on 20 December 2021 at about 12 noon at his home, should be admitted in these different proceedings. Onus 1. Generally, the prosecution has the onus of proving the facts asserted by the evidence in a voir dire. 2. An exception to this is where there is a challenge to exclude improperly or illegally obtained evidence. 3. In such matters, the onus of persuasion lies on the party seeking to establish that the evidence falls within the terms of s 138(1) of the EA. 4. If that is established, the onus shifts to the prosecution to satisfy the Court that the desirability of admitting the evidence outweighs the undesirability of admitting it in the circumstances in which it was obtained: see R v Coulstock (1998) 99 A Crim R 143 at [147]. Standard of proof 1. Section 142 of the EA sets out the standard of proof 2. The standard is on the balance of probabilities. 3. Subsection (2) requires the Court to consider the importance of the evidence in the proceeding; and the gravity of the matters alleged in relation to the question: see Briginshaw v Briginshaw (1938) 60 CLR 336 at [361]–[362]. Witnesses 1. The Court viewed the ERISP and marked it exhibit 'a' in the voir dire. 2. The statement of the Police Officer was marked exhibit 'b'. Issues in dispute 1. There are four distinct questions for the Court to determine. 2. Firstly, whether the conduct of the police officer was improper, if so whether the ERISP was obtained improperly and, if so, whether, striking the balance mandated by s 138, the evidence was inadmissible and fourthly, if required, whether the Court should exercise its discretion given by s 90 of the EA. Submissions 1. Ms Ozer submits that the ERISP should not be admitted because it is unfair. The ERISP was prepared for a previous offence, the caution was not properly explained, there was no lawyer, the support person did not understand his role, the 'doli' questions were leading and Ms Ozer queries the reliability of the YP's answers - particularly as the YP was 12, Aboriginal and vulnerable. Further, the YP signed a document without legal advice. 2. Mr Brager says s 86 of the EA does not apply because the questioning was video recorded. The YP was cautioned, leading questions may be asked, the YP was not under arrest and s 13 of the Children (Criminal Proceedings) Act 1987 (NSW) ('CCPA') was complied with. 3. If the Court finds impropriety, Mr Brager submits that the desirability of admitting the evidence outweighs the undesirability of admitting it because the evidence is probative - going to the issue of doli incapax, the evidence is important because there is little other evidence to rebut doli incapax, the offences before the Court are serious and the gravity of impropriety is low because the real intention was to proceed under the YOA. Further, any impropriety was not deliberate or reckless. Findings of fact relevant to issues in dispute 1. The YP was 12 at the time of interview, and 13 at the time of these allegations. 2. Police attended the home of the YP for interview. The YP's parents were likely in custody given responses made by the YP. 3. The Uncle was a person responsible for the YP. His Uncle was present at interview. 4. No explanation was given to the Uncle as to his role. 5. The Police Officer believed that there was sufficient evidence that the YP had committed an offence of stealing an ice cream from the IGA. 6. The YP was not under arrest and was free to leave. 7. There was no opportunity given for the YP to obtain legal advice. 8. The YP was cautioned by the Police Officer. 9. The caution: 'You do not have to say or do anything but that anything that you do say or do may be used in evidence' was said quickly. 10. The caution concludes with the Police Officer saying if you don't do the Youth Justice Conference ('YJC'), then the interview can be used in Court. 11. There was no evidence as to whether the YJC proceeded or not. The Court, on balance, presumed it proceeded. 12. The interview was a 'doli interview' where the YP was asked to tell police whether acts are seriously wrong or naughty. 13. Examples of the questions and responses are: * Not washing the dishes after your parents/carers told you to do so. The response was Naughty. * Not buying a train ticket before getting on a train. The response was seriously wrong. * Kicking someone on purpose. The response was 'Dunno'. The Uncle interjected and told the YP that this is an assault. * Taking lollies from a shop without paying for them. The response was seriously wrong. * Breaking into someone's house or business. The response was seriously wrong. 1. There was no reference to consequence, or an explanation offered by the YP as to why he answered in the way that he did. 2. The interview was conducted on 20 December 2021 and was sought to be admitted in these proceedings relating to allegations of 3 September 2022. The law applicable Section 138 of the EA 1. Section 138(1) states that evidence that was obtained improperly or in contravention of an Australian law, or in consequence - is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. 2. In carrying out the balancing exercise, the Court is to consider matters set out in s 138(3), albeit this is not an exhaustive list. 3. In Fleming v R [2009] NSWCCA 233 McClellan CJ at CL at [17] held that the principles identified in Ridgeway v The Queen (1995) 184 CLR 19 should be applied to s 138 when considering whether events constitute an impropriety. 4. In that case Mason CJ, Deane and Dawson JJ said at [37] that: "the stage of impropriety will be reached in the case of conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances." Caution issued 1. Section 139(1) of the EA provides that evidence of a statement or act by a person during questioning is obtained improperly if: '(a) a person is under arrest (refer to sub-s (5)(a) i.e., there is sufficient evidence to establish that the person has committed an offence); (b) the questioning was conducted by an investigating official who was empowered… to arrest; and (c) before starting the questioning, the investigating official did not caution the person that the person does not have to say or do anything but that anything they did say or do may be used in evidence.' 1. Section 281 of the Criminal Procedure Act 1986 (NSW) states that evidence of an admission in relation to an indictable offence (other than a Table 2 offence), that was made in the course of official questioning, is not admissible unless there is available to the Court 'a tape recording made by an investigating official of the interview in the course of which the admission was made', or the prosecution establishes that there was a reasonable excuse as to why a tape recording could not be made. 2. Sections 19 and 36 of the YOA requires the YP to admit the offence. 3. The usual Court practice when it is proposed that a matter is dealt with under the YOA is as follows: the YP gets legal advice. The solicitor says the offence is 'admitted'. No plea is required. No interview is needed. Submissions follow. The Court considers. Legal Advice 1. Section 7(b) of the YOA sets out the principle that children who are alleged to have committed an offence are entitled to be informed about their right to obtain legal advice and to have an opportunity to obtain that advice. Take appropriate steps to ensure that the protected suspect understands the caution 1. Clause 38 of the Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) ('LEPRR') refers to cautions; and applies. 2. This includes that if a protected suspect (see s 110 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ('LEPRA') is a vulnerable person: see: clause 28(1)(a) i.e., children) - the person giving the caution must take appropriate steps to ensure that the protected suspect – the child - understands the caution. 3. In R v Phung and Huynh [2001] NSWSC 115 revised - 15/05/2001 Wood CJ at CL at 1, prior to LEPRA and LEPRR but applicable in principle. 4. Relevant to cautions at paragraph [63] it was said: 'Additionally, I observe that police should not automatically assume that their obligations under the legislation, can be met by a rote reading of the requisite cautions and advice, or by the handing over of printed forms for an accused to read for himself or herself. Nor should they assume that compliance can be proved by the securing of a simple signature or initial on the custody management report. There is a positive obligation, under the legislation, to ensure that a child or vulnerable person can understand what is being said - for example see regulation 29. That may extend to satisfying themselves that he or she can speak English or can read. Moreover, the regulations give rise to a positive obligation to assist a vulnerable person in exercising his or her rights - see regulation 20.' 1. At [38] Wood CJ at CL said: 'It is important that police officers appreciate that the regime now established is designed to secure ethical and fair investigations, as well as the protection of individual rights, of some significance, which attach in particular to children….' And at [39] it was said: 'The provisions need to be faithfully implemented and not merely given lip service or imperfectly observed. The consequences of any failure to give proper regard to them is to risk the exclusion of any ERISP, or the product of an investigative procedure, which is undertaken in circumstances where there has not been proper compliance with the law.' Support Persons 1. Clause 30 of LEPRR, as to who may be a support person, applies. 2. Section 13 of the CCPA applies whereby any statement, confession, admission, or information made or given to a member of the police force by a child who is a party to criminal proceedings shall not be admitted in evidence unless certain persons are present - unless the Court thinks there is proper and sufficient reason in the circumstances of the case to admit it. 3. Section 10 of the YOA applies and only required a person responsible for the child be present. 4. Neither s 13 or s 10 outline the role and function of a support person. Clause 34 of LEPRR does, but does not apply in this matter. 5. In R v Mercury [2019] NSWSC 81 R A Hulme J regarding section 13 at [38] referred to R v H (1996) 85 A Crim R 481 at 485, where Hidden J at [486] had the following to say about the role that might be played by an adult or legal practitioner who is present during a police interview of a child: 'The primary aim of such a provision is to protect children from the disadvantaged position inherent in their age, quite apart from any impropriety on the part of police. That protective purpose can be met only by an adult who is free, not only to protest against perceived unfairness, but also to advise the child of his or her rights. As the occasion requires, this advice might be a reminder of the right to silence, or an admonition against further participation in the interview in the absence of legal advice. No-one could suggest that a barrister or solicitor, whose presence is envisaged by s 13(1)(a)(iv), could be restrained from tendering advice. Nor should any other adult.' 1. The importance of a support person is evidenced by clause 33. Clause 33 of LEPRR stipulates that a child cannot waive entitlement to a support person. Section 85 1. Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected. Other protections 1. The following protections involving custody managers do not apply as the YP was not taken into custody: * Clause 37 of LEPRR – legal assistance for Aboriginal persons or Torres Strait Islanders. * Section 122 of LEPRA – manager to caution, and give summary of Part to, person under arrest or protected suspect. * Clause 29 of LEPRR – the custody manager to assist vulnerable person including to assist the person in exercising the person's rights under Part 9 of the Act and ensure that the caution and summary required as above (see s 122) is given to the person. * Clause 34 of LEPRR – the role of support persons not restricted to acting merely as an observer and may assist, observe fairness, identify communication problems during interview to be explained by custody manager. Section 90 of the EA, including an unrelated offence 1. Under s 90, the Court may refuse to allow the prosecution to adduce evidence of an admission or refuse to admit evidence of an admission to prove a particular fact if, having regard to the circumstances in which the admission was made, use of the evidence would be unfair to the accused. 2. The focus of s 90 is the unfairness at the hearing not fairness of how the admission was elicited. 3. This requires consideration of whether there was identified some aspect of the circumstances in which the admission was made that revealed why the use of the evidence, at the hearing, 'would be unfair'. 4. The onus is on the YP to demonstrate that it would be unfair to admit evidence of an admission: (Bin Sulaeman v R [2013] NSWCCA 283 at [98] per R A Hulme J [Beazley P and Bellew J agreeing]; Khamisi v R [2015] VSCA 355, [31]). 5. The purpose of s 90 is to exclude evidence if its use would be unfair rather than to require a balancing of public policy interests. Decision: integrating the facts and law Whether the conduct of the police officer was improper 1. A caution was issued. Section 139 was complied with. 2. However, Clause 38 of LEPRR applies and required the Police Officer to take appropriate steps to ensure that the YP, as a protected suspect, understands the caution. 3. The YP was 12. 4. The caution was delivered quickly. 5. The two distinct aspects of the caution namely: * you do not have to say or do anything – and, * but that anything you do say or do may be used in evidence were not broken down; and should have been. 1. The Police Officer did not ask the YP to explain back, in his own words, what the caution meant; and should have. 2. The Police Officer did not explain to the Uncle his role so he could assist in explaining the caution; and should have. 3. The terms of the caution were unclear. The Police Officer said if you don't do the Youth Justice Conference, then this recording can be used in Court. It was unclear as to whether this meant in any Court proceeding relating to this offence or any other future Court proceedings regarding any possible future allegation. The terms of the caution should be clear. 4. The Police Officer did not take an appropriate step of informing the YP about his right to obtain legal advice and be given an opportunity to obtain that advice. 5. The intention of the CNS is that young people know that it exists, that it is accessible and that the YP may obtain legal advice; fundamental to that advice is the caution. Had legal assistance been provided it is almost certain that the YP would have had the caution explained and the terms of the interview clarified. 6. In this matter, relevant to s 138 EA, the minimum requirement is for Police to comply with the principle in s 7(b) of the YOA. 7. If s 7(b) was complied with but no legal advice was provided to the YP - all steps referred to in paragraphs 67, 68, 69, and 70 would be minimum requirements. 8. I am satisfied on the balance of probabilities, having regard to the test in Briginshaw, that the conduct of the police officer was improper by not complying with Clause 38 of LEPRR and not complying with s 7(b) of the YOA. Whether the ERISP was obtained improperly 1. The ERISP was obtained improperly following noncompliance with Clause 38 of LEPRR and not complying with s 7(b) of the YOA. Whether, striking the balance mandated by s 138, the evidence was inadmissible 1. Section 138(3) sets out a series of factors that the Court must considered in the exercise of its discretion: 1. the probative value of the evidence In this matter the ERISP is evidence that can and does rationally affect the assessment of a fact in issue, i.e., doli incapax but the probative value of the evidence is low. The series of questions and responses do not demonstrate the intellectual and moral development of the child. In Regina v Camilleri [2007] NSWCCA 36 at para [35] it was held that "the fact that the evidence is of high probative value will weigh in favour of its admission". The converse is also true. 1. the importance of the evidence in the proceedings The evidence is critically important. Without the evidence that is sought to be excluded there would be no case for the YP to answer. 1. the nature of the relevant offence, ....and the nature of the subject matter of the proceeding The charges carry significant maximum penalties. The aggravated break and enter carries a maximum of 20 years. In my view, that offence is of a nature that would militate towards the admission of evidence, rather than its exclusion. 1. the gravity of the impropriety or contravention Sections 138 and 139 of the EA, Clause 38 of LEPRR and s 7(b) of the YOA are directed at protecting the right to silence. This is a fundamental part of our criminal law system and the administration of justice. The fact that the victim of the impropriety was 12 makes the impropriety more serious. 1. whether the impropriety or contravention was deliberate or reckless The impropriety was not deliberate. The Court is prepared to accept it as inadvertent. The context at the time was the intention to divert the matter from the criminal justice system under the YOA. There is nothing in the evidence, on the balance of probabilities, that there was a future intention to use the ERISP in possible upcoming proceedings. 1. whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights The breach undermined the protections designed to alert the YP that consent may remove one of the important protections against self-incrimination. That right falls within the International Covenant on Civil and Political Rights. 1. whether any other proceeding (whether or not in a Court) has been or is likely to be taken in relation to the impropriety or contravention There is no likelihood that any proceeding of any kind will be taken in relation to the impropriety. The impropriety was years ago, not deliberate and intended to obtain an admission to allow a Court diversion. This would give force to a proposition that the court should not sanction such impropriety. 1. the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law The evidence could readily have been obtained lawfully but, did not need to be obtained at all. The matter could have been dealt with under the YOA without the ERISP. This supports the exclusion of the evidence. 1. I am not satisfied on the balance of probabilities that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence. 2. The ERISP is not to be admitted. Discretion given by s 90 of the EA 1. Even if I was persuaded to admit the ERISP I would have exercised my discretion under s 90 to reject it. 2. It is unfair to use this ERISP to rebut the presumption of doli incapax in subsequent matters when an ERISP for these fresh matters would have required the police to comply with numerous LEPRA and LEPRR protections that the police did not need to comply with for this ERISP. 3. Those protections include compliance with clauses 29, 34 and 37 of LEPRR and s 122 of LEPRA. 4. In addition, s 281 of the Criminal Procedure Act 1986 would need to be complied with. 5. It is unfair to use this ERISP when the police said that 'it can be used in Court if you don't do the YJC' when the YJC was complied with. 6. There was an inducement to participate in the ERISP because of the expectation of being dealt with under the YOA. It would be unfair to then use this ERISP in different proceedings when there is no such inducement. 7. For completeness, as to s 85, I am satisfied that the truth of what the YP told the Police was not adversely affected. Order 1. The ERISP is not admitted. ********** Amendments 14 August 2023 - Minor corrections made to paragraphs [20], [25], [47], [52], [72], [74], [77] and [78]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision 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 or Tribunal in which it was generated. Decision last updated: 14 August 2023