Children's Court New South Wales Medium Neutral Citation: R v Ronald [2024] NSWChC 4 Hearing dates: 29 February 2024 Date of orders: 24 April 2024 Decision date: 24 April 2024 Jurisdiction: Criminal Before: Children's Magistrate Ford Decision: Evidence not admitted Catchwords: CHILDREN - Criminal Procedure - Voir dire - Admissibility of ERISP - Interviewing vulnerable people after legal advice Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) Evidence Act 1995 (NSW) Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Cases Cited: R v Coulstock (1998) 99 A Crim R 143 Briginshaw v Briginshaw (1938) 60 CLR 336 DPP (Vic) v T [2006] VSC 256 R v HG; R v WE (No 1) [2019] NSWSC 573 (24 July 2018) Fleming v R [2009] NSWCCA 233 Ridgeway v The Queen (1995) 184 CLR 19 Bin Sulaeman v R [2013] NSWCCA 283 Khamisi v R [2015] VSCA 355 Regina v Camilleri [2007] NSWCCA 36 Texts Cited: International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) Category: Principal judgment Parties: The young person (Young Person) Rex (The Crown) Representation: Ms Mewing (Prosecutor) Mr Huxley (Young Person) File Number(s): 2023/00072504 Publication restriction: Pseudonyms have been used to protect the identity of the young person. Introduction not to be read as part of the judgment On 12 December 2023 the Law Enforcement Conduct Commission ("The Commission") provided a report to the New South Wales Parliament under the name Operation Mantus. The Commission explored a number of issues but relevantly to this matter, whether the police interview of a young person after they had received legal advice and declined an interview was unique to Operation Mantus or a systemic issue. The Commission found that there was a systemic problem of police officers interviewing vulnerable people (including Aboriginal people and young people) after they had received legal advice and said that they did not wish to be interviewed. The Commission observed: (i) In 2004 and 2005, the then Commissioner of Police had approved directions that if a young person exercised their right to silence, the investigating officer and the custody manager should record that the young person had declined an interview and the person should not be interviewed. (ii) These protocols seem to have been forgotten by the NSW Police Force. The Commission found that the current NSW Police practice was to ask the vulnerable person to confirm that they had declined an interview in an electronically recorded interview. Too often, this request turned into an interview despite the person invoking their right to silence. (iii) There were systemic problems with custody managers not recording a person's decision to decline an interview, support persons not being told that a suspect had declined to be interviewed on legal advice, investigating officers not being told that vulnerable people had declined an interview and investigating officers proceeding to interview the person regardless. (iv) These practices continued despite numerous court judgments over several years concluding that they were improper. The Commission found that the NSW Police Force did not have an effective mechanism for identifying court decisions that criticise police practices or for changing those practices as a result. This has contributed to ongoing systemic problems. The Commission's recommendations included: (i) Police should urgently advise custody managers to make a record in the custody management record when a young person declines to be interviewed either directly or through the lawyer. A young person should not be asked to confirm this decision in an interview. If the young person says that they have changed their mind about the interview, they should be offered further legal advice before any interview proceeds. (ii) The NSW Police Force should urgently develop a system so that Court decisions concerning policing are brought promptly to the attention of the Executive of the NSW Police Force to ensure appropriate steps are taken to assist operational police and for training purposes. These proceedings relate to events on the 3 March 2023, before the report was published. This hearing occurred on 29 February 2024. In submissions I raised with the parties the Commission's report. The prosecutor was unaware of the report. In making that observation there is no criticism of the individual prosecutor. However, it appears the recommendation of the Commission with regard to systems being developed regarding court decisions (which should presumably include the Commission's findings) has not yet resulted in the report and the issues identified in the report being brought to the attention of all prosecutors. JUDGMENT 1. These proceedings relate to Ronald ("the young person"). 2. The young person was born on 10 May 2009. 3. The young person is now 14 years of age. 4. Ronald is an Aboriginal young person. 5. The young person is charged with the offence of affray and the offence of assault with intent to rob in company, offences that are said to have taken place on Friday 3 March 2023. 6. The young person was 13 years and 10 months on 3 March 2023. 7. The young person was under 14 years of age at the time of the alleged offending and as such it is an essential element of both offences that the prosecution must rebut the common law presumption of doli incapax beyond reasonable doubt. 8. The prosecution sought to rely on an interview that the young person gave at the police station on the night of 3 March 2023 to rebut doli incapax. There were objections to the admission of that evidence ("the ERISP") by the young person identified as: 1. There had been a failure to comply with section 13 of the Children (Criminal Proceedings) Act 1987 (NSW) ("CCP"). 2. An impropriety and contravention of law such that the ERISP should be excluded pursuant to section 138 of the EA. 3. Unfairness pursuant to section 90 of Evidence Act 1995 (NSW)("EA"). Admissibility of Evidence 1. This is a voir dire pursuant to s 189 of the EA to determine whether the ERISP of the young person's interview should be admitted into these 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. The standard of proof is on the balance of probabilities. 2. The Court is required 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 and Evidence The custody manager 1. Senior Constable T was the custody manager at the time the young person was arrested ("the custody manager"). 2. I found him to be a reliable and credible witness. He made appropriate concessions when giving evidence. There was only one gap in his evidence where his memory failed him. It was the same subject matter that the Officer in Charge ("OIC") had a gap in her memory, relating to whether she was told the young person instructed his lawyer he did not wish to participate in an interview. 3. The custody manager has been a police officer for almost twelve years and has acted as custody manager on over 100 occasions. 4. He has participated in special training to be a custody manager. He agreed it was an important role and the Law Enforcement (Powers and Responsibilities) Act 2002 ("LEPRA") and the Law Enforcement (Powers and Responsibilities) Regulation 2016 ("LEPRR") are important. 5. He accepted the young person is a vulnerable person and his job was to assist in Part 9 rights and the right to silence. 6. His statement was marked exhibit "1". It was prepared on 12 September 2023 and detailed events on 3 March 2023 when he was the custody manager in relation to the young person. 7. Further evidence was led by the prosecution and included the tendering of a number of documents. These included: 1. Exhibit "2" a document headed a custody record cover sheet which included a property docket, Form 31 summary of Part 9 rights signed by the young person and a Ms F support person and Role of Support person signed by Ms F. 2. Exhibit "3" the custody management record. 1. His evidence included: 1. The first time he called the custody notification service ("CNS") there was no support person present for the young person and he was advised by the CNS to call back when a support person was present. 2. The young person's parents were known to police and unsuccessful calls were made to locate them. At the time the young person's girlfriend's carer was identified as support person, Ms F as an adult available in the general area. 3. Once Ms F was identified the CNS was called back and the CNS spoke to the young person and his support person Ms F was present. 4. The custody manager explained to Ms F her role as a support person, and she signed the Part 9 document. 5. He conceded the young person had spoken to a legal practitioner and at the end of the call the legal practitioner Ms Y advised him that the young person didn't want to do an interview or forensic procedure and that she would email and confirm this. That email was exhibit "4". 6. He agreed that he knew that the young person instructed his solicitor he didn't want to do an interview. 7. He had received and read exhibit 4 the email from Ms Y the CNS lawyer which had been sent at 8:33pm confirming that the young person's instructions were that he did not want to do an interview and if there was any change to those instructions to make further contact with the CNS. 8. The young person's aunt Ms M arrived after the young person had spoken to the CNS. She took over the role of support person for the young person. 9. He was asked; did he inform the officers in charge that the young person didn't wish to participate in interview? His response was that he passed it onto Senior Constable L. Senior Constable L was the second interviewing officer. 10. He agreed his statement at paragraph 17 used the words "I made interviewing officers aware that the accused was told not to interview" and the word officers was plural. But he could not remember if he made the OIC aware that the young person did not wish to be interviewed. 11. He accepted that Officer L was aware the young person's instructions were he did not want to be interviewed; that he as the custody manager was aware the young person was taken into the interview room and he did not try and stop them. 12. He didn't show the interviewing officers the email from the CNS. He didn't contact the CNS to advise that the young person's instructions about an interview appeared to change. Senior Constable D 1. Senior Constable D has been a police officer for eleven and a half years. She estimated she has conducted in excess of fifty interviews. 2. She is the officer in charge ("OIC") of the young person's matter. 3. Her evidence can be summarised as: 1. She agreed she was well aware of the safeguards in place under LEPRA including for vulnerable people and that the young person was a vulnerable person. 2. She spoke with the custody manager on the night, and she was aware the young person had spoken to the CNS. However, she couldn't recall if she was shown or was made aware of the email from the CNS -exhibit 4. 3. She interviewed the young person in the charge room, and she hadn't forced him in there, she had asked him to come in. 4. At no time did the young person say he didn't want to do an interview and at no time did his support person indicate he did not want to do an interview. 5. When asked if the custody manager made her aware of any instructions passed on by the CNS, she was unable to recall. 6. She accepted she would have spoken with the custody manager and would have made sure LEPRA was being complied with. 7. Under cross examination she spoke about her interviewing practice as follows: Q. And if those instructions are the person doesn't want to do an interview, would you take those instructions on their face value? A. I always take someone in and ask them electronically if they'd like to be interviewed 1. When she was pressed on this practice of always taking someone in to record their response to being interviewed, she had the following exchange: Q. So did it matter whether the young person said he wanted to do an interview or not? A. I don't recall if he said that. It's always, you always say that. Was that his instruction or was that your instruction. There's a difference. 1. She knew the young person's support person didn't have parental responsibility but said those things weren't her responsibility. 2. She agreed there was no time pressure on the case to interview the young person or to preserve evidence but was of the view that there was no reason to delay and ask him to come back later. 3. She agreed there could be banging heard in the ERISP but wouldn't concede there was someone being aggressive in the cells. This was so even though during the ERISP she makes comment "you've ended up in here on a Friday night with some other larrakin in there that you are going to have to listen to". It was unclear to me why she was unable to make such a concession. 1. I note there is a gap in her memory as to whether she was told the young person's instructions were he did not want to do an interview. Accepting her difficulties with memory about that aspect, I have some concerns about other aspects of the officer's evidence. 2. I am troubled by the exchange under cross examination as I have recounted at paragraphs 26(7) and 26(8). 3. In particular by both what she said and the tone she answered those questions about a young person's instructions, she demonstrated an underlying misgiving or indifference of lawyers giving advice and some sort of dissatisfaction with the process. 4. I am also troubled by her evidence that her practice is to always take someone in and ask them electronically if they would like to be interviewed. ERISP 1. The Court viewed the ERISP in its entirety. It was marked Exhibit "5" and tendered when the OIC was giving evidence. 2. The Court has the assistance of a transcript of the ERISP as an aide memoir which was marked MFI "1". 3. The ERISP was informative. It demonstrated the support person Ms M taking no active role but rather joining in the officers when castigating the young person. 4. Predominantly the interview focuses on the circumstances of the alleged offending. 5. Towards the end of the interview there was loud banging that made listening to the ERISP difficult and uncomfortable. I can only imagine how it felt to a 13-year-old Aboriginal child in custody at night at a police station. No action was taken to have a break until that disruption came to an end. 6. On a number of occasions, the young person says he doesn't want to answer particular questions and the questioning continues. 7. The young person at one point asks to see evidence referred to by Officer L and when Officer L leaves the room the OIC continues to question the young person. 8. When asked what could be described as doli questions his responses include: Q80 Do you understand the difference between right and wrong? A No comment. Q81 No comment? A Yeah. Q88 What's a crime? A I don't know how to explain like, I can't I don't know. Q204 Well, did you think you were going to get in trouble? A Not at the time, no. Q221 Do you understand uh, what happened out the front of the fish and chip shop was wrong? A Yes. Q222 How wrong would you say it is? Yeah A ….wrong. I don't know. 1. The above extracts from the ERISP are not all of the doli questions but are relevant as to both the nature of the questioning and the type of answers received. Finding of facts relevant to issues in dispute 1. The young person was 13 at the time of interview and at the time of alleged offending. 2. The young person with a support person Ms F spoke to the CNS. 3. The CNS communicated promptly in writing to the custody manager the young person's instructions that he did not want to do an interview with police and requested if there was a change of instructions to contact the CNS again. That did not occur. 4. The changing of support persons meant that Ms M who was the support person during the interview was unaware of the legal advice the young person received and the instructions he provided. 5. The custody manager was aware the young person's instructions were not to participate in an interview. 6. The custody manager told Officer L of the young person's instructions not to be interviewed but couldn't recall what if anything was said to the OIC. 7. Notwithstanding those circumstances the custody manager did not intervene when the young person was taken into the interview room. 8. The OIC says she can't recall if she was made aware of the young person's instructions conveyed by CNS. 9. It was the practice of the OIC to always take someone and ask them electronically if they wish to be interviewed. 10. Officer L conducted the interview with the knowledge that the young person's instruction conveyed by the CNS were he didn't wish to be interviewed. 11. There was no urgency to the young person being interviewed. Applicable Law 1. The CCP Act states at section 13: (1) 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 in those proceedings unless— (a) there was present at the place where, and throughout the period of time during which, it was made or given— (i) a person responsible for the child, (ii) an adult (other than a member of the police force) who was present with the consent of the person responsible for the child, (iii) in the case of a child who is of or above the age of 14 years—an adult (other than a member of the police force) who was present with the consent of the child, or (iv) an Australian legal practitioner of the child's own choosing, or (b) the person acting judicially in those proceedings— (i) is satisfied that there was proper and sufficient reason for the absence of such an adult from the place where, or throughout the period of time during which, the statement, confession, admission or information was made or given, and (ii) considers that, in the particular circumstances of the case, the statement, confession, admission or information should be admitted in evidence in those proceedings. Section 3 of the CCP Act defines a person responsible, in relation to a child as; (a) a person having parental responsibility for the child, or (b) a person who has the care of the child (whether or not the person has parental responsibility for the child). Decision Integrating the facts and the law 1. Neither Ms M or Ms F could be said to be people who had parental responsibility for the young person or people who had care of the young person. Ms M and Ms F did not meet the definition of a person who would satisfy section 13(1)(a)(i) through to (iv). 2. It was clear neither of the young person's parents were available and it can be inferred the custody manager and OIC had some knowledge of the young persons' parents and that they weren't likely to be available in the foreseeable future. 3. I am satisfied pursuant to s 13(b)(i) there is proper and sufficient reason for the absence of such an adult, the police had made proper enquiries and there was an adult known to the young person present. 4. The question is whether I am persuaded to exercise my discretion pursuant to section 13(b)(ii). 5. In submissions the young person asks me to consider the circumstances of Ms M;- she is not privy to legal advice, nor the young person's instructions to the CNS, which places the young person at a disadvantage. 6. I accept the young person's submissions that Ms M was not an advocate for the young person, making disparaging remarks to him during the interview. She made comments suggesting he should be placed in a room with the person at the police station causing the loud banging noises. 7. She did not seek to interfere to protect the young person's interests. 8. Similar to the circumstances of DPP (Vic) v T [2006] VSC 256 where Justice Bell considered a similar but not identical provision; for the young person, Ms M's presence added to the weight of disadvantage for the young person, and she became another adult to whom he has being held to account. 9. In R v HG; R v WE (No 1) [2019] NSWSC 573 (24 July 2018) Bellew J in considering whether to admit evidence pursuant to section13(b)(ii) held at paragraph 72: "It is also important to have regard to the purpose of the CCPA generally, and to the purpose of s 13 in particular. In setting out the principles relating to the exercise of functions under the Act, s 6(b) makes reference to the fact that children, because of their state of dependency and immaturity, require guidance and assistance. The protective nature of the CCPA is, in my view, a further circumstance which tends against the admission of the evidence." 1. There are a combination of facts relevant to the exercise of my discretion. They include that Ms M was not the support person present when the young person spoke to the CNS. Nor was she aware of the legal advice the young person received and that his instructions were that he did not wish to be interviewed. Ms M was not an active support person and indeed added to the weight of disadvantage. 2. Those facts in combination and when having regard to the protective nature of the CCPA lead me to the conclusion I should not admit the ERISP. 3. I consider it important that I consider the other objections of the young person, in the event that I am not entitled to reach that conclusion. 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." 1. The young person says there are two improprieties relied upon that would lead me to the conclusion the evidence should be excluded. 2. The first is with respect to the custody manager and the obligations under section 29 of LEPRR which states that the custody manager is to assist a vulnerable person as follows as The custody manager for a detained person or protected suspect who is a vulnerable person must, as far as practicable, assist the person in exercising the person's rights under Part 9 of the Act, including any right to make a telephone call to a legal practitioner, support person or other person. In particular, the custody manager must ensure that the caution and summary required by section 122(1) of the Act is given to the person. 1. The second is the conduct of the OIC where the submission is her conduct falls short of the minimum conduct acceptable for police officers in the circumstances. 2. The prosecution opposes the court making a finding of impropriety as follows: 1. The CNS was contacted twice; 2. Steps were taken to locate the young person's parents and then someone over 18 who was next of kin, firstly Ms F and then Ms M was there to act as a support person; 3. The young person and the support person read and were explained his part 9 rights; 4. The young person confirmed he was happy to speak to police; 5. Throughout the ERISP the young person voiced when he didn't want to answer questions. 1. Those submissions don't address the failure of the custody manager to assist the young person to enforce his Part 9 rights. The 2 phone calls to the CNS were as a result of the first call being made without a support person present. 2. The fact that the CNS advice was that a support person should be present when receiving advice highlights the importance of the support person hearing that advice to assist and support the young person. That didn't happen in this matter due to the changeover of support persons. 3. The submissions don't address the gap in evidence as to what the OIC knew about the young person's instructions. They also don't address the OIC's evidence where she indicated her practice to take people to interview them irrespective of what they instruct a solicitor they wish to do with regards to be taken into an interview room. 4. Lastly, they don't address the conduct of the custody manager where he took no action when the young person was taken by the OIC to be interviewed knowing his instructions were not to be interviewed. Whether the ERISP was obtained improperly 1. The ERISP was obtained improperly following non-compliance with Clause 29 of LEPRR by the custody manager and the reckless approach of the OIC. Whether, striking the balance mandated by s138, 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 1. 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 1. The evidence is critically important. Without the evidence that is sought to be excluded there would be no case for the young person to answer. 1. the nature of the relevant offence, ....and the nature of the subject matter of the proceeding 1. The charges carry significant maximum penalties. The affray carries a maximum penalty of 10 years. The assault with intent to rob carries a maximum penalty of 20 years. In my view, the offence is serious in nature and of a nature that would militate towards the admission of evidence, rather than its exclusion. 1. the gravity of the impropriety or contravention 1. Sections 138 and 139 of the EA, Clause 29 of LEPRR 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 a 13-year-old Aboriginal child makes the impropriety more serious. 1. whether the impropriety or contravention was deliberate or reckless 1. The impropriety was reckless by both the experienced custody manager and OIC who both should have known better. 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 1. The breach undermined the protections with respect to the right to silence and 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 1. I can't make any findings in that regard. 1. the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law. 1. The interview could have been conducted if after the young person indicated he wished to be interviewed the CNS were contacted and after legal advice the young person instructed his lawyers he wished to be interviewed at a time when a support person who was privy to that legal advice was available. The fact that the prosecution has formed the view doli incapax cannot be rebutted without interview doesn't create urgency or excuse the impropriety. 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. 3. Even if I was persuaded to admit the ERISP I would have exercised my discretion under s 90 to reject it. Section 90 of the EA 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 young person 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. 6. The evidence relied upon is adduced by the prosecution, The evidence was obtained by an interview where there was a clear disregard for the young person's instructions conveyed through the CNS that he did not want to be interviewed. In disregard of written confirmation by way of email that any change in those instructions by the young person should see a further call to the CNS. There was a fundamental failure to protect his right to silence. 7. The custody manager didn't intervene at any point in time and did not assist the young person to enforce his Part 9 rights. The support person was not an advocate for the young person. 8. In all of those circumstances it would be unfair to admit the evidence. Order 1. The ERISP is not admitted. 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: 02 May 2024