R v LMW [1999] NSWSC 1128

New South Wales Supreme Court CITATION : R v LMW [1999] NSWSC 1128 CURRENT JURISDICTION : Criminal FILE NUMBER(S) : 070031/99 HEARING DATE(S) : 15 November 1999 - JUDGMENT DATE : 23 November 1999

PARTIES : Regina LMW (Accused) JUDGMENT OF : Studdert J

COUNSEL : G. Smith (Crown) P. Zahra (Accused) SOLICITORS : Office of the Director of Public Prosecutions (Crown) Legal Aid Commission (Accused) CATCHWORDS : Application to introduce evidence of conversations with police Crimes Act ACTS CITED : Evidence Act Children (Criminal Proceedings) Act R v Horton (1998) 45 NSWLR 426 CASES CITED : R v Schiavini [1999] NSWCCA 165 R v Reed [1999] NSWCCA 258 R v Swaffield 151 ALR 98 DECISION : See para 44.

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

STUDDERT J

Tuesday 23 November 1999 070031/99 REGINA v LMW

JUDGMENT (Re: admissibility of evidence of Constable French)

1 HIS HONOUR: The Crown is seeking to introduce evidence of conversations which a police officer had with the accused at his home on 3 March 1998 and later at the police station. Mr Zahra has objected to the evidence being introduced and Constable French, who participated in the conversations, and Detective Sergeant Foster, who heard the conversations at the accused's home, have given evidence on the voir dire and have been cross-examined. 2 Mr Zahra has submitted that the evidence sought to be tendered should be excluded because of the requirements of s 424A of the Crimes Act. He has submitted further that the evidence should be excluded under ss 85, 90, 137 and 138 of the Evidence Act. Finally he relies on s 139 of the Evidence Act. 3 At the outset I should record the evidence which the Crown seeks to introduce. Constable French has stated that he attended the accused's home at 8.20 am on 3 March 1998 in company with Detective Sergeant Foster. There he said he first spoke to the accused's mother, and subsequently to the accused. The evidence which the Crown seeks to elicit is that having introduced himself and Sergeant Foster to the accused's mother as officers from the Macquarie Fields Detectives' Office, he asked the child's mother: "Do you have a son named [LMW]?" He received an affirmative reply and the accused then came to the front door where the police officer had introduced himself. This conversation then occurred, according to Constable French (and for the purposes of this judgment I include the various paragraph numbers to be found in the relevant statement made by Constable French): "( Paragraph 13 ) '[LMW] do you know Corey from across the street?' He said, 'No.' The young child's mother said, 'Little Corey?' [Constable French] said, 'Yes.' She said 'You know Corey.' The young child said, 'Yes.' [Constable French] said 'When was the last time you saw Corey?' He said, 'Yesterday.' [Constable French] said 'Where were you when you saw Corey?' He said, 'I was riding my skateboard.' ( Paragraph 14 ) [Constable French] then said to the young child, 'Did you see him any other time yesterday?' He said, 'No.' [Constable French] said 'Do you know [GW2] from next door to Corey?' He said, 'Yes.' [Constable French] said 'Did you tell her that you saw Corey at the creek?' He said, 'No.' [Constable French] said 'She has told me you told her that.' He said 'I didn't tell her, I told [GW1].' [Constable French] said 'Her sister?' He said, 'No, she's Corey's sister.' [Constable French] said 'Did you tell her that you saw Corey at the creek?' He said 'No. Ah, I saw Corey with two boys in the bush, that's what I told her.' ( Paragraph 15 ) [Constable French] then said to the young child 'The girls told me that you said he was at the creek.' He said 'The boys told me they were going to the creek.' [Constable French] said 'Are you fibbing?' He said, 'Sure, I pushed him. What do you think' and the young child became upset and walked away. [Constable French] said to the young person's mother, 'Corey drowned in the river yesterday afternoon.' She said, 'Oh no'. [Constable French] said 'The only person that we have been told that knew he was there is [LMW].' ( Paragraph 16 ) The young child's mother said 'Corey (sic), come back here' and the young child returned to the front door and said, 'Yeah, I pushed him in the creek. So what.' The young child's mother said '[LMW], don't be cheeky.' ( Paragraph 17 ) [Constable French] then said to the young child, 'What happened?' He said, 'Well, the two boys kicked and punched him and I told them to stop, and he followed me down to the creek. He wouldn't go away and kicked me like he did last year so I pushed him in the creek. When I pushed him in I ran and got help.' [Constable French] said 'Why didn't you tell me that at first?' He said 'I don't want to get in trouble.'" 4 Constable French then asked the accused's mother to attend the police station with the accused to talk further about the matter, and the accused and his mother complied with this request. 5 At the police station Constable French spoke further to the accused's mother, asking her, in the absence of her son, whether she would permit the accused to be electronically interviewed and to participate in a video interview at the scene. Mother and son were then taken to an interview room where they were seated, and Constable French informed them, addressing the mother, that they would wait for the Aboriginal Liaison Officer, but the mother indicated that she was happy for her son to be interviewed without that officer and arrangements were made for the interview to proceed. Constable French then gave the following further account of events: "( Paragraph 26 ) [He] asked the young child, '[LMW], what I am going to do is talk to you about what happened to Corey yesterday. Do you understand that?' He said 'Yes.' [Constable French] said, 'What I say and anything you say to me will be taped by this machine,' and [Constable French] indicated the three tape decks in the hybrid recording device, 'Do you understand that?' He said, 'Yeah.' [Constable French] said 'What we say will be recorded on a video tape at the same time. Do you understand that?' He said, 'Yeah.' [Constable French] said, 'When we finish you will be given one of the tapes of what we say. Do you understand that?' He said, 'Yes.' ( Paragraph 27 ) [Constable French] then said to the young child, '[LMW], anything you say to me when I talk to you can be used in a Court. Do you understand that?' He said, 'No.' [Constable French] said, 'Do you know who goes to Court?' He said, 'Bad people.' [Constable French] said, '[LMW], if I talk to you and you say something to me that says you have done something bad to Corey, you might have to go to Court. Do you understand that?' He said, 'Yes.' [Constable French] said, 'Okay [LMW], if you think you might have done something bad to Corey yesterday, you don't have to talk to me about it. Do you understand that?' He said, 'Yes. I pushed him into the creek and he was splashing around in the water with his arms and legs and I left to get someone to help.'" 6 At this stage however proceedings were interrupted when the child's mother received a telephone call after which Constable French was informed that a solicitor was coming to the police station and that the mother wanted to wait until he arrived before the interview commenced. That request was complied with. A solicitor then arrived from the South West Aboriginal Legal Service. Following discussion which the solicitor held with the accused and his mother, the police officer was informed that the boy's mother did not want police to interview her son. There was no further interview and there was no electronically recorded interview at all. 7 There is no need for me to record the evidence of Sergeant Foster. He essentially adopts what Constable French asserted was said at the accused's house before he was taken to the police station. Sergeant Foster was not present at the further discussion at the police station, but nothing turns on this. 8 Section 424A of the Crimes Act is in the following terms: "(1) This section applies in relation to evidence of an admission within the meaning of this section.