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District Court 7 September 2006

R v APCR R v CP

[2006] NSWDC 12

Theft & propertyPublic order & justice offences
CRIMINAL LAW ARREST ABORIGINAL JUVENILE ADMISSIBILITY, RECORD OF INTERVIEW CUSTODY MANAGER GUIDELINES

Citation: R v APCR; R v CP [2006] NSWDC 12
Court: District Court of New South Wales
Date: 7 September 2006
Judge(s): Nicholson SC DCJ

Background

The prosecution alleged that two accused, both Aboriginal juveniles, participated in a street robbery of an elderly woman outside a bowling centre in Forster, NSW. One accused (APC) was thirteen years and three months old at the time of his arrest; the other (CP) was fifteen and a half. Both were arrested and subsequently participated in recorded interviews with police.

APC was arrested at 3am pursuant to an outstanding warrant, removed from his bed by handcuff, transported in a caged vehicle to Taree Police Station, and placed in a police cell overnight without a support person. CP was arrested later the same day and, after initially receiving advice from the Aboriginal Legal Service not to participate in an interview, was spoken to by the investigating detective in the presence of his mother, who then urged him to proceed with the interview.

The prosecution sought to tender both records of interview at trial. Defence counsel objected to the admissibility of both. A voir dire was conducted, at the conclusion of which the Court rejected both records of interview.

  • Whether the police complied with the Custody Manager Guidelines under the Crimes (Detention after Arrest) Regulations (NSW) in relation to Aboriginal juvenile detainees, including obligations regarding cell placement and support persons
  • Whether the Aboriginal Custody Notification obligations were properly discharged, including the requirement to notify a "representative Aboriginal Service organisation"
  • Whether APC's record of interview was admissible, having regard to the circumstances of his arrest and detention and the conduct of the investigation period
  • Whether CP's record of interview was voluntary, given the detective's conversation with CP's mother after legal advice had been given to CP to decline the interview
  • Whether the Court should exercise its discretion to exclude the interviews under s 90 and s 138 of the Evidence Act 1995 (NSW) as evidence improperly or unfairly obtained

Decision

APC's interview: The Court found multiple failures in the handling of APC's custody. A thirteen-year-old was placed in a police cell overnight when other secure accommodation was available, contrary to the Custody Manager Guidelines, which require that Aboriginal children not be placed in police cells except in exceptional circumstances. The custody manager had not turned his attention to the relevant provisions. The Court was also concerned about the adequacy of the Aboriginal custody notification, noting that it was incomplete and not directed to any specific representative of the ALS.

The Court examined the circumstances of APC's arrest and the conduct of the investigation period in detail, finding that the manner of his detention and the failures to comply with mandatory procedural protections for Aboriginal juvenile detainees were serious. Taking into account the relevant discretionary considerations under ss 90 and 138 of the Evidence Act, the Court rejected APC's record of interview as improperly obtained.

CP's interview: After CP received advice from an ALS representative not to participate in an interview, the investigating detective spoke privately with CP's mother. The Court accepted the mother's account that the detective told her it would be in CP's best interests to do the interview and "get it all cleared up." The detective denied having that conversation in those terms. The Court preferred the mother's evidence and found it more probable than not that her account was accurate.

The Court found that the detective had seen video footage of the alleged offence, perceived the mother's arrival at the station as an investigative advantage, and applied pressure through her to circumvent the legal advice CP had already received. The Court was not satisfied the interview was voluntary, and also excluded it in the exercise of discretion under both s 90 and s 138 of the Evidence Act as improperly obtained by the application of pressure.

Orders Made

  • The record of interview of APC was rejected.
  • The record of interview (ERISP) of CP was rejected.

Key Takeaways

  • The District Court confirmed that placing an Aboriginal child in a police cell when other secure accommodation is available breaches the Custody Manager Guidelines under the Crimes (Detention after Arrest) Regulations, and that this failure is a relevant factor in determining admissibility of evidence obtained during that detention.

  • Failures to comply with Aboriginal custody notification obligations, including incomplete notification forms and the absence of notification directed to a specific representative of the Aboriginal Legal Service, weighed in favour of exclusion under ss 90 and 138 of the Evidence Act 1995 (NSW).

  • Where a detective approaches a juvenile accused's parent after legal advice to decline an interview has already been given, and that approach results in the parent pressuring the accused to proceed, the resulting interview may be found involuntary and liable to exclusion.

  • A finding that an accused's will was overborne by a parent's importuning, itself induced by police conduct, can ground exclusion both on voluntariness and on the s 90 and s 138 discretions.

  • The Court observed that custody managers should make entries into custody records contemporaneously, as required by the regulations, and recommended that greater pressure be applied to ensure compliance with that obligation.

Legislation and Cases Referenced

Legislation:
- Crimes (Detention after Arrest) Act (NSW), including Regulation 29
- Crimes (Detention after Arrest) Regulations (NSW), including Custody Manager Guidelines (Schedule 1, Part 2, cl 5)
- Crimes Act 1900 (NSW), Part 10A
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW), s 13(1)
- Evidence Act 1995 (NSW), ss 90, 138

Cases:
- R v Collins (1980) 31 ALR 257
- R v Phung and Huinh [2001] NSWSC 115
- R v Helmhut [2001] NSWCCA 372