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6
Court of Criminal Appeal 28 May 2001

REGINA v. TANG

[2001] NSWCCA 210

Also reported as (2001) 122 A Crim R 206
Homicide
CRIMINAL LAW APPEAL AGAINST CONVICTION ADMISSIBILITY OF ERISP ACCUSED A CHILD AT TIME OF INTERVIEW REASONABLE TO ADMIT EVIDENCE SIGNIFICANT POSSIBILITY OF ACQUITTAL

Citation: Regina v Tang [2001] NSWCCA 210
Court: NSW Court of Criminal Appeal
Date: 28 May 2001
Judge(s): Spigelman CJ, Wood CJ at CL, Greg James J

Background

The appellant was convicted of murder following a trial in the Supreme Court before Hidden J and a jury of twelve. He was sentenced to 15 years' imprisonment, with a minimum term of 11 years, dating from his arrest on 23 March 1997.

The conviction rested in significant part on two electronically recorded interviews with police: a formal recorded interview (the ERISP) and a recorded "walk through" interview at the scene. At the time those interviews were conducted, the appellant was under 18 years of age, though he had apparently believed he was over that age. No accompanying person as required by s 13 of the Children (Criminal Proceedings) Act 1987 was present during either interview.

The appellant's trial counsel, unaware that the appellant's age was in question, did not object to the admission of the interview recordings. On appeal, the appellant sought to raise both the admissibility of those interviews under s 13 and fresh evidence concerning what he claimed had actually occurred, including his assertion that another boy, not himself, had used a knife to stab the deceased.

  • Whether the electronically recorded interviews were inadmissible under s 13 of the Children (Criminal Proceedings) Act 1987, given the absence of an accompanying person during the police interviews
  • Whether the trial judge would have had a proper basis to admit the evidence notwithstanding that absence, under the discretion preserved by s 13(1)(b)
  • Whether there was a significant possibility the evidence would have been excluded and, consequently, a significant possibility of acquittal
  • Whether fresh evidence concerning matters not raised at trial warranted a new trial

Decision

Greg James J (with whom Spigelman CJ and Wood CJ at CL agreed) upheld the appeal on the second ground, concerning the s 13 requirement. The Crown accepted that no accompanying person was present and made no submission that any attempt had been made to arrange for one. The court's analysis therefore turned on whether a trial judge, exercising the discretion under s 13(1)(b), could properly have admitted the interviews in any event.

The court found it could not be said that a trial judge would necessarily have admitted the evidence. Evidence before the court indicated that police had in fact approached the appellant's mother approximately ten days before the arrest specifically to ascertain the appellant's date of birth. The court found that inquiry appeared directed at interviewing the appellant without the accompanying person s 13 would otherwise require. That finding weighed heavily against any suggestion there was a proper and sufficient reason for the absence.

Greg James J noted that the protective purpose of s 13 extends beyond simply affording a child the opportunity to remain silent. It also ensures the child has access to proper advice before deciding whether to speak and, if so, what to say. An account given without that protection may fail to do justice to the child's position. The court concluded that a significant possibility existed that a trial judge would have excluded the interviews.

Having found that the interviews may well have been excluded and that their exclusion carried a significant possibility of a different verdict, the court upheld ground two. The fresh evidence ground was not further examined, as the appropriate remedy in any event was a new trial.

Orders Made

  • Appeal upheld
  • Conviction and sentence quashed
  • New trial ordered

Key Takeaways

  • Section 13 of the Children (Criminal Proceedings) Act 1987 imposes a mandatory requirement that a child suspect be accompanied during police questioning, with admission of any resulting statement conditional on either compliance or judicial satisfaction that proper and sufficient reason existed for the absence.
  • A trial judge retains a residual discretion under s 13(1)(b) to admit the evidence even where the accompanying person requirement was not met, but the Court of Criminal Appeal confirmed that discretion is not automatic and depends on the particular circumstances of each case.
  • Evidence that police took active steps to avoid the s 13 requirement, such as inquiring about a suspect's age with apparent intent to conduct an interview without an accompanying person, is a significant factor weighing against admission.
  • The protective purpose of s 13 is broader than simply enabling a child to exercise the right to silence; it also ensures the child receives proper advice before deciding what account to give, reducing the risk that a statement will fail to reflect the child's true position.
  • Where a significant possibility exists that inadmissible interview evidence would have been excluded at trial, and that exclusion may have produced a different verdict, a conviction cannot safely stand and a new trial is the appropriate remedy.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 13
- Evidence Act 1995 (NSW)

Cases
- Stackelroth (CCA, unreported, 3 April 1996)
- Mickelberg v The Queen (1989) 167 CLR 259
- Aquilina (1978) 1 NSWLR 358
- Warren (1982) 2 NSWLR 360
- McKellar & Booth v Smith (1982) 2 NSWLR 950
- Cotton (1990) 19 NSWLR 593
- Dunn (CCA, unreported, 15 April 1992)
- H (1996) 85 A Crim R 481
- Phung & Huynh (Wood CJ at CL, unreported, 26 February 2001)
- McKinney v The Queen (1991) 171 CLR 468
- Foster v The Queen (1993) 113 ALR 1