Citation: [2024] NSWSC 853
Court: Supreme Court of New South Wales
Date: 15 July 2024
Judge(s): Hamill J
Background
Five co-accused face trial for the murder of a man in Blacktown in September 2021, along with attempted murder and wounding charges relating to two other victims. The prosecution alleges the offences arose from a violent confrontation between rival suburban street gangs.
One accused, referred to as "YA," was approximately 17 years and three months old at the time. Police found him hiding under a car in a carport near the stabbing scene shortly after the killing. He made statements to arresting officers, including lies about how he came to be at the scene, all captured on body worn video. No responsible adult, support person, or lawyer was present.
YA objected to the admissibility of those statements. The prosecution argued the statements were highly probative because YA's lies could establish a consciousness of guilt, potentially undermining any self-defence claim and bearing on his intention and participation in the alleged joint criminal enterprise.
Legal Issues
- Whether statements made by a child to police, in the absence of a responsible adult, support person, or lawyer, were admissible under s 13 of the Children (Criminal Proceedings) Act 1987 (NSW).
- If the mandatory requirement under s 13(1)(a) was not met, whether the exception in s 13(1)(b) applied: was there "proper and sufficient reason" for the absence of a support person, and should the evidence nonetheless be admitted in the circumstances?
- How the court should assess the vulnerability of the child accused in the particular circumstances, including the urgency and chaos of the arrest scene.
Decision
Hamill J confirmed there was no dispute that the s 13(1)(a) requirement was not met. No adult (other than police), no person responsible for YA, and no lawyer was present when YA made the statements. The entire question therefore turned on whether the prosecution could satisfy both limbs of the s 13(1)(b) exception.
His Honour accepted that the circumstances were urgent and chaotic. Police had responded to a fatal stabbing, and there was "a lot happening" at the scene. Hamill J found this provided a satisfactory explanation for why no support person was contacted before YA was spoken to, and therefore accepted there was "proper and sufficient reason" for the absence of a support person under s 13(1)(b)(i).
However, addressing the second limb of s 13(1)(b), which requires the court to consider whether "in the particular circumstances" the evidence should be admitted, Hamill J found against the prosecution. His Honour assessed YA's vulnerability by reviewing the body worn video footage, noting YA's "palpable fear and confusion" at the time of arrest. The court emphasised the protective purpose of s 13, which exists to shield children from their own vulnerability rather than from police impropriety. His Honour identified other factors militating against admission and concluded that the evidence should not be admitted.
The prosecution fairly accepted that if the body worn video evidence was excluded, paragraph [42] of YA's later prepared statement (which referred to his lies to police at the scene) should also be removed from the evidence.
Orders Made
- The statements made by YA to police, as recorded on the body worn video, were ruled inadmissible.
- Paragraph [42] of YA's April 2023 statement (which referenced the impugned conversation) was to be removed from the prosecution case.
Key Takeaways
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Section 13 of the Children (Criminal Proceedings) Act 1987 provides robust protection for child accused persons. The Supreme Court held that even where police had a legitimate reason for not arranging a support person, such as genuine urgency at an active crime scene, the court must still separately assess whether the particular circumstances justify admitting the evidence. Urgency alone was not sufficient.
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Satisfying the first limb of s 13(1)(b), which requires a proper reason for the absence of a support person, does not guarantee that the second limb allowing discretionary admission will also be met. Hamill J closely scrutinised body worn video footage for signs of the child's vulnerability, fear, and confusion in determining whether admission was justified.
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A later, lawyer-assisted prepared statement can be tainted where it expressly references an earlier inadmissible conversation. Portions of the prosecution case resting on YA's prepared statement were undermined because that statement incorporated or referred to material from the excluded earlier exchange.
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In a multi-accused murder trial, the cascading procedural consequences of unexpected evidence were starkly illustrated. YA's prepared statement implicating co-accused prompted all four other defendants to seek separate trials, demonstrating the significant impact such evidence can have on trial management.
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The protective purpose of s 13 is not contingent on police misconduct. Even well-intentioned, urgent questioning of a child near a crime scene produced inadmissible evidence where no support person was present, and the Supreme Court confirmed that the statutory requirement applies wherever practicable, regardless of the officer's good faith or the operational pressures of the situation.
Legislation and Cases Referenced
Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 13
- Evidence Act 1995 (NSW), s 128
- Child Welfare Act 1939 (NSW), s 81C
Key Cases:
- R v KS (No 2) [2023] NSWSC 1475
- R v Phung and Huynh [2001] NSWSC 115
- R v Basha (1989) 39 A Crim R 337
- R v H (A child) (1996) 85 A Crim R 481
- R v Warren [1982] 2 NSWLR 360
- McAuliffe v The Queen (1995) 183 CLR 108
- Mitchell v The King; Rigney v The King; Carver v The King; Tenhoopen v The King (2023) 276 CLR 299
- Miller v The Queen; Smith v The Queen; Presley v Director of Public Prosecutions (SA) (2016) 259 CLR 380
- R v Jogee [2017] AC 387