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. (2) Evidence of an admission is not admissible unless: (a) 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 (b) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made, there is available to the court a tape recording of an interview with the person who made the admission about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or (c) the prosecution establishes that there was a reasonable excuse as to why the tape recordings referred to in paragraphs (a) and (b) could not be made. (3) The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995) do not prevent the admission or use of a tape recording as mentioned in subsection (2). (4) In this section: "admission" means an admission: (a) that was made by a defendant who, at the time when the admission was made, was, or ought reasonably to have been, suspected by an investigating official of having committed an offence, and (b) that was made in the course of official questioning, and (c) that relates to an indictable offence other than an indictable offence that may be dealt with summarily without the consent of the accused. "investigating official" means: (a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior), or (b) a person appointed by or under an Act (other than a person who is engaged in covert investigations under the orders of a superior) and whose functions include functions in respect of the prevention or investigation of offences, prescribed by the regulations for the purposes of this definition. "official questioning" means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence. "reasonable excuse" includes: (a) a mechanical failure, or (b) the refusal of a person being questioned to have the questioning electronically recorded, or (c) the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned. "tape recording" includes: (a) audio recording, or (b) video recording, or (c) a video recording accompanied by a separately but contemporaneously recorded audio recording. (5) This section does not apply to an admission made before the commencement of this section." 9 Section 424A has been considered by the Court of Criminal Appeal in R v Horton (1998) 45 NSWLR 426; R v Schiavini [1999] NSWCCA 165 and in R v Reed [1999] NSWCCA 258. I have considered each of these decisions for present purposes. 10 According to Constable French the accused admitted, first at his home and again at the police station, that he pushed the deceased into the river. However it is not every admission that enlivens the operation of s 424A, as the definition of "admission" in sub-s (4) of the section makes plain. 11 According to Constable French, at the time when he called at the accused's home and the accused first admitted pushing the deceased, he did not suspect the accused of having committed an offence. He said that he went there to the home seeking in effect to track the deceased's movements and to find out who was the last to see the young child. The police officer's information apparently was that the accused had said that the child was at the creek and the purpose of his call, as I understand the thrust of his evidence, was simply to find out what the accused knew of the deceased's movements. 12 So it is, the Crown has submitted, that s 424A was not enlivened because at the time the accused spoken to he was not suspected, nor ought he reasonably to have been suspected, by Constable French of having committed any offence. 13 The evidence which Constable French has given satisfies me that at the time when he first spoke with the accused and when the accused first made what otherwise would have amounted to an admission for the purposes of s 424A Constable French did not suspect, nor ought he reasonably to have suspected, so far as inquiries had then proceeded, that the accused had committed any offence. 14 Hence s 424A can have, in my opinion, no application to the admission which the accused made, and such as Constable French detailed in paragraphs 15 and 16 of his statement. 15 However, the accused went on to elaborate upon that admission at his home (paragraph 17 of Constable French's statement) and to make the further admission at the police station (paragraph 27 of that statement). It seems to me that for the purposes of those later admissions, s 424A had been enlivened because once the accused had first admitted pushing the deceased into the creek, Constable French ought reasonably to have entertained a suspicion for the purposes of s 424A(4)(a). 16 It is common ground that there never was any "tape recording" concerning these later admissions, but the Crown has submitted that there was "a reasonable excuse" for this for the purposes of s 424A(1)(c). Hence it has argued that the evidence as to the later admissions is not rendered inadmissible under that section. 17 I will not repeat what has been said in the Court of Criminal Appeal about the purpose or operation of s 424A in those cases to which I referred earlier. The purpose of the section was referred to in the Attorney General's Second Reading Speech concerning the Bill introducing the provision (see paras 21-22 of the judgment of Wood CJ at CL in Horton), and in Reed the Chief Justice described the requirements of s 424A as being "precise and rigorous". 18 I am satisfied that there was a reasonable excuse for no tape recording of what took place at the accused's home. I am satisfied that Constable French did not go to the boy's home suspecting that he had done anything wrong or that the accused would make any of the admissions which were forthcoming there. I am satisfied that Constable French was taken by surprise by the events at the home and that there was, in the relevant sense, a reasonable excuse for no tape recording of any of the admissions there made. 19 I am satisfied further that Constable French intended that a tape recording would be made at the police station to record the verbal admissions. Preparations were made for this to be done and the reason why there was no tape recording at all was because, following the involvement of the solicitor for the accused, the decision was conveyed to the police officers concerned as to the unwillingness for there to be further interview of the accused. 20 I should add that on 10 March 1998 a letter was written by the solicitor for the accused restating that at that particular point of time "on legal advice [LMW]'s parents have declined to allow him to be questioned." By that same letter the accused's solicitor advised that the child's parents would consent to [LMW] being questioned "if he were granted an indemnity from prosecution pursuant to s 13 of the Criminal Procedure Act (New South Wales) 1986." There was, of course, no decision made to grant an indemnity, so the refusal of further questioning continued. 21 Mr Zahra submitted that it was not enough that the police were informed that the child was unwilling to be interviewed or that the parents were unwilling to have him interviewed. He submitted that the section required, even where there was a refusal to be interviewed generally, that an attempt to make a more limited interview remained necessary under the section. That is to say, where a person refuses to be interviewed at large the police should persist in seeking a tape recorded interview for the limited purpose of having recorded only the admissions previously made orally. 22 I have given that submission anxious consideration but it seems to me that the acceptance of the submission reads into the section more than it requires. I am satisfied here on the evidence that there was what in effect was a refusal to be interviewed by way of tape recording at the police station and once that occurred there was no further requirement for the police officer to persist in seeking to have some limited tape recording made. The law has always recognised a suspected person's right to remain silent and s 424A recognises this too. Hence it is that the refusal of a person being questioned to have any questioning electronically recorded is expressly recognised as a reasonable excuse under the section, and once there was conveyed in this case an unwillingness to be further interviewed, it was not required of the police that they persist in seeking to obtain further incriminating evidence, even of a limited kind. 23 In all the circumstances of this case, I have concluded that the Crown has established that there was a reasonable excuse as to why tape recordings of the type referred to in s 424A(2)(a) and (b) could not be made. 24 Accordingly the evidence sought to be introduced should not be excluded under the section. 25 I turn to the submissions advanced under the Evidence Act. 26 It is conveniently firstly to consider s 90 upon which Mr Zahra submitted he principally relied. This section provides: "In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if: (a) the evidence is adduced by the prosecution; and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence." 27 The nature of the discretion to exclude evidence under s 90 is not rigidly or narrowly defined. It requires that the court have regard to all the circumstances in which any admission was made in determining whether it would be unfair to the accused to use the evidence, in which case it may refuse to admit the evidence in question. Reliability is not the only criterion of fairness, and it was pointed out in R v Swaffield 151 ALR 98 at 121: "The concept of unfairness has been expressed in the widest possible form in the Evidence Act 1995 (Commonwealth) and the Evidence Act 1995 (New South Wales)." 28 The only evidence introduced on behalf of the accused on the voir dire apart from that in cross examination of the police officers was a report from Dr Langeluddecke who assessed the accused on 4 August 1999. Her assessment was complemented by Ms Liddle, another psychologist, on 11 August 1999, and, as I understand it, the report which Mr Zahra tendered records the findings of both psychologists together. Dr Langeluddecke's opinion is that the accused's intellectual abilities now "are some two to two and a half years below the levels generally expected given his chronological age of eleven years eight months." Her further opinion, based upon "parental report and observations of [the accused's] behaviour" is that the accused is socially immature and his "adaptive behaviour and social confidence" are "at about an eight year old level". Cognitive and psychosocial functioning tests are consistent with reports from the accused's teachers that his academic functioning was some two to three years below the levels expected at his age. 29 The youth of the accused and his functional performance in the respects addressed by Dr Langeluddecke are matters which are relevant in the exercise of the discretion under s 90. Moreover, Mr Zahra's cross-examination of the two police officers emphasised that prior to the time that the accused made the admissions at his home he had not been told by either officer that the two men were police officers. Neither officer was in police uniform. I do not make this observation by way of criticism of either officer, and they had identified themselves to the child's mother before there was any conversation with the accused. Although the accused was obviously nearby when the police officers spoke to his mother, I am quite unable to find that he heard what they said to her and hence it seems to me I must approach my task under s 90 upon the basis that, when he said what he did by way of admission at his home, the accused did not appreciate he was speaking to police officers. By the time that he was spoken to at the police station and made the further admissions about which Constable French gave evidence, the accused did know that he was addressing a police officer. However the terms of the exchange with Constable French at the police station reveal that the police officer was told by the young boy that he did not understand that what he said to the police officer could be used in a court. Constable French endeavoured to explain what he meant by this, but reflecting on what he went on to say to the boy, and I have set this out earlier, I am not satisfied that by his explanation to the effect that if the child told him something to indicate he had done something bad to the deceased he might have to go to court, this made it clear that the account that the boy subsequently gave could be repeated as evidence against him in later proceedings in court. 30 There can be no question but that at the time Constable French spoke to the accused at the police station it was only fair and proper that the boy be adequately cautioned before being questioned and in all the circumstances, having regard to the child's age and what emerges from Dr Langeluddecke's report and the terms of such caution as was given, with its inadequacies, I have concluded that it would be unfair to the accused to permit evidence to be given concerning the admissions which Constable French says that he made whilst he was at the police station. 31 I have also concluded that I should exclude part of what the accused said to the police officer at his home. I do not consider there is any unfairness for the purposes of s 90 such as would call for the exclusion of what was first said by way of admission, accepting as I do that neither police officer entertained any suspicion when they called at the accused's home that he had been guilty of any offence. Neither police officer had any responsibility to give the child any caution at any time before the child first said in the presence of the police officers that he pushed the deceased in the creek. I am referring here to the admission to that effect made by the child after his mother called him back to the front door, he having earlier said "Sure, I pushed him." I am satisfied, having listened to the police officers, that the accused freely volunteered the admissions referred to by Constable French in paragraphs 15 and 16 of his statement as set out above. I am satisfied as to the reliability of those admissions also. 32 Having considered all the circumstances, I do not consider that I should exercise a discretion under s 90 to exclude from evidence these admissions first made by the accused at his home which I have identified. 33 However, after the accused had said that he pushed the child in the creek, it was in response to Constable French's further question (in paragraph 17 of his statement) that the child went on to make the further admission having first asserted that "the two boys" earlier kicked and punched the deceased. I consider that I should refuse to admit the evidence of this further admission because before the police officer asked the question which elicited the further admissions the child had admitted wrongdoing in admitting having pushed the deceased in the creek. In all the circumstances, and having regard to the child's age and his impaired functioning, it seems to me that before the police officer asked the child the question which elicited the further admission, he ought to have been given some caution in language that the child understood. 34 Although I have concluded that I should exclude from evidence those admissions I have identified, in the exercise of my discretion under s 90, this reflects no criticism of the manner in which either police officer conducted himself. I record that Mr Zahra concedes that there was no relevant failure to comply with the requirements of s 13 of the Children (Criminal Proceedings) Act 1987 in respect of this accused. However, in all the circumstances relevant to the exercise of my discretion under s 90, I have decided that it is appropriate to exclude those later admissions which I have been considering. 35 Mr Zahra next submitted that the evidence by way of admissions should be excluded under s 85 of the Evidence Act. This section provides: "(1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant: (a) in the course of official questioning, or (b) as a result of an act of another person who is capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued. (2) 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. (3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account: (a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject, and (b) if the admission was made in response to questioning: (i) the nature of the questions and the manner in which they were put, and (ii) the nature of any threat, promise or other inducement made to the person questioned." 36 Having concluded that it is only the first and the second of the admissions which ought to be otherwise allowed into evidence, it is relevant for present purposes to consider only these admissions in the context of a consideration of s 85. Mr Zahra conceded that these admissions were not in the course of "official questioning" but he submitted that they were elicited in circumstances attracting s 85(1)(b). Even if I assume this to be so, it is necessary to determine for the purposes of s 85(2) whether the circumstances in which the admissions were made were such "as to make it unlikely that the truth of [each] admission was adversely affected." In considering this question I take into account those matters addressed in s 85(3). This involves of course a consideration of those characteristics of this accused such as are addressed in s 85(3)(a). However I also must take into account how the accused came to make the admissions and the terms of the exchanges in the conversation in which they were made. 37 I accept each of the police officers to have given truthful and reliable evidence on the voir dire and making due allowance for the characteristics of the accused, I do not consider that there was anything in the circumstances in which the boy said what he did that would affect in any adverse way the truthfulness of the child's utterances. I reject the submission that I should regard the child as having been intimidated by the police officers. There is no evidence such as would warrant that finding and there is nothing in the demeanour or the accounts of either police officer which would lead me to conclude that their presence or the questions that were asked would have adversely affected the reliability of what the child said. 38 I am satisfied for the purposes of s 85(2) that the circumstances in which the child made the admissions which I propose to allow into evidence were such as to make it unlikely that the truth of these admissions was adversely affected. Hence Mr Zahra's submissions under s 85 fail. 39 Mr Zahra next relied upon ss 137 and 138 of the Evidence Act. Mr Zahra did not address me at any length as to the significance of either section in the present context. I do not consider that the evidence I otherwise propose to allow by way of admissions should be excluded either under s 137 or s 138. 40 For the purposes of s 137, I reject the submission that the probative value of the evidence that the prosecution seeks to introduce is outweighed by the danger of unfair prejudice to the defendant. I consider that this evidence by way of admissions is properly admissible. It has a very significant probative value and it seems to me that there is no real risk that the evidence will be misused by the jury in some unfair way. 41 For the purposes of s 138, I do not consider that the evidence I otherwise propose to allow to be introduced was obtained improperly or in circumstances attracting adverse consideration under s 138. The evidence has the probative value I have assessed, and there is nothing in the manner in which it was obtained which would warrant its exclusion under this section. 42 Finally Mr Zahra referred to s 139(5). I set out ss 139(1) and 139(5): "(1) For the purposes of section 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if: (a) the person was under arrest for an offence at the time, and (b) the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person, 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 the person does say or do may be used in evidence… (5) A reference in subsection (1) to a person who is under arrest includes a reference to a person who is in the company of an investigating official for the purpose of being questioned, if: (a) the official believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning, or (b) the official would not allow the person to leave if the person wished to do so, or (c) the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so." 43 The submission based upon s 139(5) proceeded upon the basis that after the child had admitted that he had pushed the deceased in the creek, s 139(5) was enlivened. However, I have already determined that what was said thereafter by way of admission ought to be excluded under s 90. Consideration of the provisions of s 139 would not warrant the exclusion of anything that the child said before he first walked away or after in response to his mother's call for him to return he did so and said "I pushed him in the creek, so what." I reject the submission that the evidence by way of admissions which I have otherwise decided is properly admissible should be regarded as having been improperly obtained for the purposes of s 139. As I have already indicated, I am satisfied that until these admissions had been made by the accused neither police officer who attended his home entertained any suspicion that the accused had committed any criminal offence. 44 For the above reasons I have decided that the Crown ought to be permitted to adduce evidence of the matters referred to in paragraphs 13, 14, 15 and 16 of Constable French's statement. I will, however, not allow evidence to be introduced as to the substance of what was said by the accused as referred to in paragraphs 17 and 27 of that statement. ********** Last Modified: 11/23/1999 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.