Citation: CL v Director of Public Prosecutions (NSW) [2011] NSWSC 943
Court: Supreme Court of New South Wales
Date: 26 August 2011
Judge(s): Fullerton J
Background
A young person (the plaintiff, appearing by his tutor) was found guilty in the Children's Court at Grafton of break, enter and steal contrary to s 112(2) of the Crimes Act 1900. Police alleged he and two friends broke a shop window, entered the premises, and stole scooters and scooter components. He was released on probation following the guilty finding.
A police officer had interviewed the plaintiff at his home in the presence of his aunt. The officer recorded the interview in her notebook, which the plaintiff and his aunt signed. No tape or electronic recording was made, and the plaintiff's admissions were never adopted in an electronically recorded interview. The plaintiff entered a not guilty plea and his solicitor applied to exclude the admissions from evidence on the basis that s 281 of the Criminal Procedure Act 1986 required them to be tape recorded.
The Chief Magistrate rejected that application, holding that s 281 had no application to Children's Court proceedings. The plaintiff appealed to the Supreme Court under s 52(1) of the Crimes (Appeal and Review) Act 2001.
Legal Issues
- Whether s 281 of the Criminal Procedure Act 1986 (which requires tape recording of admissions relating to indictable offences) applies to proceedings conducted in the Children's Court under ss 26 to 31 of the Children (Criminal Proceedings) Act 1987.
- If s 281 does apply, whether the police officer had a reasonable excuse for failing to tape record the interview.
- Whether, in the absence of a reasonable excuse, the evidence of the admissions should have been excluded.
Decision
Fullerton J held that the Chief Magistrate erred in finding that s 281 of the Criminal Procedure Act had no application in the Children's Court. Section 27 of the Children (Criminal Proceedings) Act expressly applies the provisions of the Criminal Procedure Act to the Children's Court and to criminal proceedings before it. Nothing in ss 26 to 31 of that Act is inconsistent with s 281 applying, so there was no basis to displace it.
The offence under s 112(2) of the Crimes Act is strictly indictable. It is not an indictable offence that can be dealt with summarily without the accused's consent. Accordingly, s 281(1)(c) was satisfied and the section applied to the admissions made by the plaintiff during the police interview.
On the question of reasonable excuse, the police officer acknowledged on the voir dire that she had not attempted to use a video camera that may have been in the police vehicle, had not returned to the police station to obtain a working recorder, and had not taken the plaintiff and his aunt to the station to conduct a recorded interview. Her stated reason for not arranging an ERISP was to avoid formally processing the plaintiff into custody given his age. The Court found this did not constitute a reasonable excuse.
Applying the principles from R v Rowe, R v Reid, and R v Crowther-Wilkinson; R v Cowie, Fullerton J was satisfied that despite nothing suggesting the plaintiff had been treated unfairly, the admissions should have been excluded. The plaintiff had co-operated with police by arranging for them to attend his home, which made it reasonable to expect he would have continued to co-operate had the interview been delayed to allow for proper recording. As no other evidence capable of supporting a guilty finding was identified, the matter was not remitted for further hearing.
Orders Made
- The orders made by Chief Magistrate Henson on 22 February 2011 are set aside.
- No order as to costs.
Key Takeaways
- Section 281 of the Criminal Procedure Act 1986 applies to Children's Court proceedings by operation of s 27 of the Children (Criminal Proceedings) Act 1987, which imports the Criminal Procedure Act provisions into that jurisdiction.
- A desire to avoid formally processing a young person into custody does not, of itself, constitute a "reasonable excuse" under s 281(2) for failing to tape record an interview about a strictly indictable offence.
- Where an accused's co-operative conduct makes it reasonably foreseeable they would have continued to co-operate if the interview were delayed or relocated to enable recording, that weighs against a finding of reasonable excuse.
- In the absence of a reasonable excuse for the failure to record, admissions made during an unrecorded police interview about a strictly indictable offence are inadmissible under s 281.
- Where no other evidence capable of supporting a conviction exists, the Supreme Court may determine the admissibility question itself rather than remit the matter to the Children's Court.
Legislation and Cases Referenced
Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), ss 26 to 31, 33
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Appeal and Review) Act 2001 (NSW), s 52(1)
- Criminal Procedure Act 1986 (NSW), s 281
- Director of Public Prosecutions Act 1986 (NSW), s 9
- Evidence Act 1995 (NSW), ss 85 and 86
Cases:
- R v Crowther-Wilkinson; R v Cowie [2003] NSWSC 44; 138 A Crim R 473
- R v Reid [1999] NSWCCA 258
- R v Rowe [2001] NSWCCA 1; 50 NSWLR 510