P v JC [2018] NSWChC 2

Children's Court New South Wales

Medium Neutral Citation: P v JC [2018] NSWChC 2 Hearing dates: 5 & 6 March 2018 Date of orders: 06 March 2018 Decision date: 06 March 2018 Jurisdiction: Criminal Before: Judge Peter Johnstone, President of the Children's Court Decision: Acquitted Catchwords: CRIMINAL LAW – Evidence – admissibility of admissions – s 90 Evidence Act – s 13 Children's (Criminal Proceedings) Act 1987 Legislation Cited: Crimes Act 1900 Children's (Criminal Proceedings) Act 1987 Evidence Act 1998 Category: Principal judgment Parties: Department of Public Prosecution (DPP) The Young Person (YP) Representation: Sergeant Cameron, Prosecutor Mr Renard, solicitor, Legal Aid File Number(s): 2017/00323166 Publication restriction: Pseudonyms have been used to anonymise the Young Person and parties

JUDGMENT 1. JC is a young person, who is now aged 17. By Court Attendance Notices issued in Port Macquarie and served on the young person, returnable on 4 December 2017, he was charged with two offences. In summary they were: Sequence 1 - film person in a private act without consent to obtain sexual arousal, in breach of s 91K(1) of the Crimes Act 1900; Sequence 2 - intentionally distribute intimate image without consent, in breach of 91Q(1) of the Crimes Act 1900. 1. The young person pleaded not guilty to the charges on 4 December 2017. The matters were therefore listed for a defended hearing before me in the Children's Court sitting at Port Macquarie on Monday 5 March 2018. The matters came on for hearing. Sergeant Cameron prosecuted the charges on behalf of the New South Wales Police. Mr Renard, a Legal Aid solicitor in Port Macquarie, appeared for the young person. 2. At the outset a third charge was proffered: Sequence 3 - intentionally record intimate image without consent. 1. The young person pleaded not guilty to sequence 3. Sequence 1 was then withdrawn and was dismissed. Accordingly sequences 2 and 3 remain for determination. 2. It was agreed that the statement of the complainant, who is otherwise ready and available to give evidence (from a remote witness room), would not be required to give oral evidence and that her statement to police could be read and put into evidence unchallenged (see Exhibit 1), which states: "I am 16 years of age. I attend Senior Campus in Port Macquarie. I was in an intimate relationship with JC on and off since Year 8. I have known him since Year 7. He was also attending High School with me. The last time that I was intimate with him would have been about 15 September 2017. On Thursday 12 October 2017 I had a conversation with the Assistant Principal... I never agreed to be recorded whilst having intercourse, nor did I consent for any video of me having intercourse being sent to anyone else." 1. The young person challenged the admission of certain evidence on the voir dire, namely various admissions made by him in interviews, firstly with the Deputy Principal of the school, and secondly with the investigating police officer, Detective DS. I was informed by the prosecution that the police case rested entirely on these admissions made by the young person in those interviews. 2. The form of the alleged intimate image of the complainant alleged to have been taken and distributed by the young person was not available. 3. The application on the voir dire to exclude the evidence of the admissions in question was brought principally pursuant to s 90 of the Evidence Act 1998 and s 13 of the Children's (Criminal Proceedings) Act 1987, and the Regulation made under the Law Enforcement Powers and Responsibilities Act (LEPRA). 4. On the hearing of the voir dire the Deputy Principal of the young person's school gave evidence and was cross-examined. Her statement was admitted as Exhibit A on the voir dire. The investigating police officer, Detective DS, also gave evidence and was cross-examined. His statement was admitted on the voir dire and marked Exhibit B. Also in evidence was another statement by an attending police officer, which is not necessarily relevant to the outcome, and also a copy of a protocol entered into between the New South Wales Police and the Legal Aid Commission of New South Wales entitled "Legal Aid Youth Hotline Protocol", which I have marked Exhibit E. Also in evidence was a tape recording made by the police of the interview conducted by Detective DS. 5. The events may be broadly put into a chronology as follows. It is not clear when the victim first spoke to the school or to the deputy principal. What is clear is that on 12 October 2017 that deputy principal interviewed the young person in the circumstances set out in her statement, which is marked exhibit A. 6. At paragraph 4 of that statement she says: "During October 2017 I became aware that images or videos had been disseminated by a student... as he was engaged in sexual intercourse with another student." 1. At paragraph 5 she states: "I called for JC to attend the office of the deputy principal to speak to me about this matter. I said 'Do you have inappropriate material on your phone and you've sent it to some of your mates?' He said 'Yeah I do'. I said 'You know that's illegal. I'm going to have to speak to the police. I would like you to lock and leave your phone here because the police may want it.' He said 'I don't have my phone. I'm borrowing a mate's phone at the moment because mine's broken.' I said 'Probably best that you leave that phone with me.' He left a mobile phone with me." 1. At paragraph 6 she states: "The following day I spoke with Detective Senior Constable DS from Port Macquarie Detectives." "I requested that JC attend to the office area once again the following day" 1. At paragraph 7 she states: "...on the following day, I spoke with JC in the office area. I said 'The police are coming. Do you want me to contact your parents and get them to come in for the interview? Or you can choose to have me or another teacher in there for you?' He said 'No, I'll have you in there with me.' I said 'So mate did she know that you were filming it?' He said 'No she didn't, no.' I said 'So how does that work?' He said 'Do you really want to know?' I said 'Well yeah.' He said 'I filmed it when I was behind her and had my mobile phone beside me.'" 1. At paragraph 8 she states: "Detective DS and Senior Constable TW arrived at my office. I have a conversation with them. JC returned to the office area and he took part in an interview with the police whilst I was his support person." 1. It is suggested that another teacher telephoned the parents some time either on 12 October after the first interview or some time on 13 October prior to the second interview with the deputy principal, but it is not clear when, nor were the contents of that call confirmed or established in any particular way. 2. Following those events, on 13 October 2017 the police conducted an interview with the young person which is set out both on the tape recording and in the statement of Detective Senior Constable DS which I have marked Exhibit B, in which he says a number of things: Firstly: "On Friday 13 October 2017 I had a telephone conversation with the father of the complainant. Later that day I had a conversation with her and her parents." Paragraph 5: "About 1.30pm Plainclothes Senior Constable TW and I went to the College in Port Macquarie. I had another conversation with the Deputy Principal and received a colour picture taken of a mobile phone image." 1. He goes on in paragraph 6: "About 1.50pm the young person walked into the deputy principal's office with the deputy principal. I had a short conversation with the young person. I said 'J I'm Detective DS from Port Macquarie detectives. This is Plainclothes Senior Constable TW. I intend to ask you further questions about taking images of the complainant without her consent. You do not have to say or do anything but anything you say or do will be recorded and can later be used in evidence in court. Do you understand that?' He said 'Yeah'. I said 'Are your parents aware of what's happened?' He said 'Yeah I told them.' I said 'Where are they?' He said 'They told me to go and deal with it.' I placed my mobile phone onto a coffee table situated between us. I said 'I intend to record our conversation using this device. Are you happy for the deputy principal to be your support person?' I activated the device on the coffee table between the young person, the deputy principal, Plainclothes Senior Constable TW and I. I now produce a copy of this recording." 1. The statement then goes on to set out what was on the tape, during the course of which the young person made admissions which would otherwise have constituted proof beyond reasonable doubt of the offences of which he is charged. 2. The issue, however, in these proceedings is whether or not the police should be allowed to rely on that evidence, that is, the evidence of his admissions which were obtained both in the school interview and in the police interview, or whether I should exclude that evidence under the various provisions to which I have been directed, in particular s 90 of the Evidence Act 1998, which provides as follows: "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." 1. The principal issue then for my determination on the voir dire is whether the evidence was obtained unfairly. 2. What occurred in this case was wrong on so many levels. I do not propose to go into a lot of detail about what happened, because it is my perception that the teacher involved and the policeman involved were just trying to do their best in the circumstances. What is clear, it seems to me, is that the procedure of schools in interviewing students in relation to whom complaints have been made that may or may not amount to criminal offences is occurring, as it occurred in this case, in a completely unfair way. 3. Some of the matters that I would refer to include that the deputy principal interviewed the young person without calling the parents in advance or without him having the opportunity to have another person present who could protect him from making fatal admissions in breach of his right to silence and the presumption of innocence, which is one of the basic precepts of the criminal justice system in Australia. Secondly, it is clear to me that the whole investigation by the police was precipitated by the teacher who obtained that admission - in my view unfairly - notifying the police who then conducted an investigation which would otherwise never have occurred. 4. Then there is the protocol between the Police and the Legal Aid Commission (Exhibit E). Whilst the terms of the protocol may not be completely apposite to this factual scenario the intention is quite clear, and it is for the police, before they interview young persons suspected of criminal behaviour, to give an opportunity - indeed an opportunity facilitated by the police - to ring the Hotline so that they can be properly advised prior to going into any type of interview where they may be at risk of making fatal admissions, such as occurred in this case. 5. Finally, it is clear that the teacher, in this case did not discharge her duties appropriately as a support person in the police interview. In fact, as is submitted by the solicitor for the young person, she could not ever have been an appropriate support person, she having been the person who obtained the original admission and who was potentially a witness for the prosecution in any subsequent proceedings. 6. I have already indicated the parents should have been notified prior to the first interview and the young person given an opportunity to obtain legal advice which may or may not have protected his right to the presumption of evidence. I can only speculate what might have occurred if things had been done properly. 7. For all those reasons I am satisfied, in my discretion, having regard to the circumstances in which the admissions were made, it would be unfair to the young person to allow that evidence to be used in the prosecution against him. 8. I therefore exclude it on the voir dire. 9. What I would like to see happen, and the reason I have not gone into detail about the conduct of the teacher and the police, it seems to me that as I said they were just acting as they saw fit and appropriate in the circumstances and probably and possibly due to certain guidelines that may or may not have been in existence in the Department of Education. 10. I do not know whether there are any such guidelines. I do not know whether there is any protocol between the Police and the Education Department. All I am going to say is that there should be a proper and reasoned and well thought through protocol entered into between the Department of Education, the Police, Legal Aid and the Law Society of New South Wales that appropriately protects the rights of young persons in these types of situations. 11. What is unfortunate in this case is that the prosecution, which in other circumstances would clearly be successful, has not been and I am concerned to ensure that in future cases of this sort the appropriate methodologies and arrangements are put in place for school teachers in these circumstances to act in accordance with the law and protect the rights of young people as appropriate. 12. I would like the circumstances of this case to be brought to the attention of Superintendent Trichter and Superintendent Ian Dixon, who is a member of the Children's Court Advisory Committee, so that we can proceed to put in place a protocol that properly protects young persons but also protects teachers and police conducting these investigations to ensure that future prosecutions of this type do not fail due to technicalities of this type. 13. CAMERON: As the Court pleases. I note your Honour's ruling in relation to the admissions. That's the prosecution case. I close our case. 14. HIS HONOUR: There being no further evidence I find the young person not guilty and I dismiss the charges. 15. CAMERON: And I place on the record I'll undertake those recommendations and report on them, your Honour. 16. HIS HONOUR: Thank you.