District Court New South Wales

• Medium Neutral Citation: R v D [2011] NSWDC 73
• Hearing dates: 30 May 2011, 31 May 2011
• Decision date: 31 May 2011
• Before: MURRELL SC DCJ

Decision

Admissions excluded

• Catchwords: Investigating official - unfair to the accused - admissions - discretion to exclude admissions - admissions by child to teacher - no support person - public policy
• Legislation Cited: s 98 Crimes Act 1900; s 85, s90 Evidence Act 1995; s 23, s 26B, s26E, s26M Education Act 1990; cl 27, Law Enforcement (Powers and Responsibilities) Regulation 2005
• Cases Cited: Broyles [1991] 3 SCR 595; R v Swaffield [1998] HCA 1; R v Nguyen [1999] VSC 420; R v Vale [2001] WASCA 21; R v M [2002] QCA 486; Pavitt v The Queen [2007] NSWCCA 88; Em v The Queen [2007] HCA 46
• Texts Cited: Guidelines Issued Under Part 5A Of The Education Act 1990 For The Management Of Health And Safety Risks Posed To Schools By A Student's Violent Behaviour
• Category: Procedural and other rulings
• Parties: Office of the Director of Public Prosecutions; "D"
• Representation: Mr M. Pincott; Mr R. Sweet; Mr B. Diggins, ODPP; Ms M. North, Herring & Associates - Lawyers
• File Number(s): 2010/128861
• Publication restriction: NON-PUBLICATOIN ORDER; Pursuant to Section 15(A)(1) Children (Criminal Proceedings) Act 1987, the name of the accused must not be published or broadcast.

Pursuant to section 5F(3)(a) of the Criminal Appeal Act 1912, on 3 June 2011, the DPP filed an appeal to the Court of Criminal Appeal seeking an order vacating the judgment and any further orders. On 18 July 2011, the DPP gave Notice of Abandonment.

Judgment

1 The accused, a young person, has pleaded not guilty to a charge of armed robbery in company contrary to s 98 of the Crimes Act 1900.

2 The accused objects to evidence of admissions made on 17 November 2010 to his teacher. He relies upon section 85 and 90 of the Evidence Act 1995 .

3 The teacher gave evidence that, in November 2010, he was the Year Adviser and history teacher to the accused. Just prior to 17 November 2010, the accused had enrolled at the high school at which he taught. As the Year Advisor, it was the teacher's role to give advice to students. He was "the first point of contact regarding student welfare issues."

4 On 17 November 2010, the teacher approached the accused during class, took him aside and asked him about his previous day at school. There was a short discussion about the accused's difficulty with maths. The teacher then asked the accused whether he expected to attend the school the following year. The accused responded that it would depend upon the outcome of his forthcoming court appearance. The teacher asked whether the accused minded him asking what the accused had been charged with.

5 According to Exhibit VD1, Annexure B (a report dated 18 November 2010 prepared for the school), the teacher then told the accused that he could "tell me to mind my own business if (he wanted)." The accused referred to a charge or charges. The teacher understood this to be a reference to armed robbery, wounding and weapons charges. The teacher became concerned. He told the accused that he "had to get his head around it." He asked the accused about the armed robbery. The accused replied, "I held up a servo." The teacher asked about what he understood to be weapons and wounding charges. The accused said that he had "stabbed the attendant."

6 According to Exhibit VD1, Annexure D (a police statement prepared on 23 November 2010), after the accused referred to a charge or charges, the teacher said, "Wait a sec, let me make sure I've got this. You robbed a place and hurt someone?" The accused replied, "Yeah, I held up a servo and stabbed the attendant."

7 At this point, the teacher suggested that the accused had "better tell (him) the whole story." The teacher wanted to form a better view as to the "risk situation," ie whether the accused posed a risk to other students. In addition, he wished to give the accused an opportunity to explain himself. The accused then told the teacher that he and a mate had travelled from Wollongong to Queanbeyan. After the mate had returned home, the accused had embarked on a robbery spree. The accused referred to expensive items such as motorbikes. He said that he had been on "ice" and had robbed a petrol station. During the robbery, he had stabbed the attendant. At that point, the teacher stopped the accused and asked, "You did do this? You stabbed a guy?" The accused replied, "Yes, but the police have nothing on me." The teacher asked what he meant. The accused said that the police knew his height but had no fingerprints and nothing else to link him to the crime. There was further conversation. Ultimately, the accused indicated that he anticipated that he would be at school the following year .

8 Prior to the discussion, the teacher did not consider calling the accused's mother. He was "not thinking along those lines."

9 From the teacher's perspective, there was no confidentiality when students disclosed criminal matters. The teacher informed his principal about criminal activities. However, the teacher believed that it was important that students felt confident about disclosing matters of concern. Therefore, as a general practice, he forewarned students whom he anticipated may disclose criminal matters that, if they did so, he may have to take it further. He did not give the accused such advice because, at the beginning of the conversation, he did not appreciate the direction that the conversation would take.

10 Following his conversation with the accused, the teacher spoke to his acting principal regarding whether there was a need for a risk assessment. At the urging of the acting principal, the teacher spoke to the officer from Juvenile Justice who had been involved in the accused's recent enrolment. At the time of enrolment, the officer had indicated that he perceived there to be no risk issues. The teacher asked the officer whether the accused was facing charges of the nature indicated by the accused. The officer confirmed that that was so. He asked the teacher about what the accused had disclosed. The teacher told the officer about the accused's disclosures. The officer passed the information onto the officer in charge of the criminal proceedings.

11 At about 3.15pm, when the teacher was making notes of his conversation with the accused, he received a telephone call from the officer in charge. At the officer's request, the teacher agreed to provide a police statement.

12 The following day, the teacher provided the acting principal with a written report, in which he set out his recollection of the conversation (Exhibit VD 1, Annexure A ).

13 At the time of the conversation, the accused was 14 years old. He had been arrested on 24 May 2010. On legal advice, he had declined to be interviewed at the police station.

Section 85 Evidence Act 1995

14 The first provision upon which the accused relies is s 85 of the Evidence Act 1995, which states:

"85(1) This section applies only in a criminal proceeding and only to evidence of an admission made by [a defendant/ an accused]:

to, or in the presence of an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence...

(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected..."

"Investigating official" is defined in the dictionary to the Act as meaning:

"(a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior); or

 (b) a person appointed by or under an Australian law (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences."

15 The initial question is whether the teacher was an "investigating official" who had "functions in respect of the prevention or investigation of the commission of offences." In my view, the teacher was not an "investigating official." He was not a police officer. He was not a person whose ordinary functions included the investigation or prevention of offences. It is true that his ordinary functions did include the investigation and consideration of risks to other students, but the risks in question were risks of injury, not risks that offences would be committed. Section 85 has no application to the present case.

Section 90

16 The second provision upon which the accused relies is s 90 of the Evidence Act 1995 . Section 90 provides:

"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/ an accused] to use the evidence."

The questions for consideration are:

(1) Whether, having regard to the circumstances in which the admissions were made to the teacher, it would be "unfair" to the accused to use the admissions; and

(2) If so, whether the discretion should be exercised to refuse to admit the evidence.

The burden is on the accused to satisfy the Court on the balance of probabilities that evidence should be excluded.

17 The accused relies upon the following circumstances:

(1) The accused was not issued with a caution.

(2) The accused was not told that what he said could be reported to the principal or to authorities outside the school, including Juvenile Justice and the police.

(3) No adult support person was present. Had the accused been questioned by police, pursuant to cl 27 of the Law Enforcement (Powers and Responsibilities) Regulation 2005, he would have been entitled to have a support person present during any investigative procedure.

(4) The disclosure to Juvenile Justice and the police was a breach of trust by the school.

(5) Because the teacher was not only the accused's subject teacher, but also his Year Advisor, he had a particular responsibility for the accused's welfare. There was a special relationship of trust and responsibility between the accused and the teacher. There was a breach of this relationship of trust when the teacher spoke to Juvenile Justice and the police.

(6) There was no contemporaneous note or other record of the conversation. As a result, the teacher's recollection of the conversation may be unreliable.

(7) The accused was not given an opportunity to test the alleged admissions. For example, he was not shown a document and asked to read and verify its contents.

(8) At the time, the accused was fourteen years of age.

(9) When the accused had been charged by police, he had chosen to exercise his right to silence.

(10) There was no compliance with the 'Guidelines Issued Under Part 5 A Of The Education Act 1990 For The Management Of Health And Safety Risks Posed To Schools By A Student's Violent Behaviour,' the Department of Education Guidelines in relation to risk assessment. In particular, no support person was provided.

18 Counsel for the accused referred to s 26B of the Education Act 1990 . That provision concerns information sought for the purpose of assessing whether the enrolment of a particular student is likely to constitute a risk to the health or safety of anyone. Under s 26E, in making the assessment, the Director General is required to consult the student and parents and is required to disclose relevant information to them. Pursuant to s 26M, compliance with the guidelines formulated under Part 5A of the Education Act 1990 (Exhibit VD 2) is mandatory. Guideline 1.10 provides that students are entitled to a support person throughout the process of risk assessment. Guidelines 2.14 and 2.17 outline that it is generally expected that a parent will act as an advocate during the process. Under guideline 4.5, reasonable attempts must be made to discuss the need for information from a relevant agency, including how such information will be used, with the parent and student. Other provisions are designed to give students and parents a right to representation and to afford them procedural fairness.

19 The Court was referred to a number of decisions. Unfortunately, no decision concerns facts that are even vaguely similar to those in the present case. Most cases concerning s 90 or the common law unfairness discretion deal with the covert recording of conversations between an accused and a person known to the accused, for example, a relative or friend. Counsel were unable to locate a case concerning a young person, let alone a case concerning admissions to a teacher.

20 Section 90 is part of an array of Evidence Act provisions that require or entitle a court to exclude admissions. Some of the provisions are concerned with the voluntariness of admissions. Others are concerned with the reliability of admissions. Section 90 is concerned with "unfairness" to an accused. It has been described as a "safety net" that enables a court to exclude evidence "bought at a price which is unacceptable," having regard to community standards.

21 A number of Australian cases have approved the tests propounded in the Canadian decision of Broyles [1991] 3 SCR 595, a case concerning the covert recording of a conversation. It proposed that, in determining whether the admission of such conversations would be unfair, a court should first consider whether the questioner was "an agent of the police" or "an agent of the State." If so, the court should consider whether the admissions were "elicited," ie whether the conversation was "the functional equivalent of an interrogation". This approach has little relevance to the present case, although the nature of the questioning and, the way in which questions were put is a relevant consideration. The teacher was not an "agent of the police" or an "agent of the State." He was acting as an agent of the school and, as he saw it, he was fulfilling his role as a teacher.

22 The equivalent common law unfairness discretion was considered in the leading case of R v Swaffield [1998] HCA 1; 192 CLR 159. Most of the subsequent decisions refer to Swaffield.

23 The decision of R v Nguyen [1999] VSC 420 considered covertly recorded admissions made to a de facto partner. The Court referred to Swaffield . Some of the considerations that Teague J considered to be relevant are referred to in par [5] of the decision:

"[5] If the application is for total exclusion, included in the matters that must or might be had regard to will be:

the physical mental and emotional state of the accused;

the location where the conversation was held, and more specifically whether the accused was in detention;

the emotional atmosphere of the conversation;

the status of the person with whom the conversation was held, and the relationship of that person to the accused;

the existence and if so the character and level of any improper conduct on the part of police;

the manner in which information was volunteered as against being actively elicited;

whether the accused had earlier exercised his right to remain silent; and

the assessment it is possible to make of the reliability of what was said by the accused."

24 It is plain from this and other decisions that, although there are separate exclusionary provisions that relate to voluntariness, and separate provisions concerning impropriety and other matters that might go to reliability, when considering the safety net discretion under s 90, issues of voluntariness, impropriety, illegality, trickery and matters that may reflect upon reliability remain relevant. I note that, in this case, the admissions were volunteered after prompting and, prima facie, appear to be reliable.

25 The decision of Vale [2001] WASCA 21 is relevant because it discusses the exercise of the s 90 discretion and the competing public interest requirements. At p 335, par [51], the Chief Justice (with which the other members of the bench agreed) stated:

"In the exercise of discretion to reject evidence on the ground of unfairness, the relevant competing public requirements must be weighed against each other. On the one hand, there is the desirability of bringing to conviction those who commit criminal offences. On the other hand, there is a public interest in the protection of individuals from unlawful and unfair treatment. A conviction obtained unlawfully or unfairly may be obtained at too high a price: Ireland at 334-335 per Barwick CJ."

In that case, the evidence involved the covert recording of a conversation between the accused and his foster son. It was held that the evidence was admissible.

26 The decision of R v M [2002] QCA 486 involved a covertly recorded conversation between the accused and the complainant, the step-granddaughter of the accused. A call was made by the complainant from a police station. The Court relied upon Broyles and held that, although the complainant was an agent of the State, the nature of the conversation did not require exclusion on the basis that it was an interrogation or elicitation.

27 The decision in Pavitt v The Queen [2007] NSWCCA 88 also concerned a covertly recorded conversation. At par [70], McColl and Latham JJ set out relevant propositions concerning the admissibility of the covertly recorded conversations. The paragraph is cited in Odgers (9th ed) at 413. The relevant (but non-exhaustive) considerations were described as follows:

"(a) The underlying consideration in the admissibility of covertly recorded conversations is to look at the accused's freedom to choose to speak to the police and the extent to which that freedom has been impugned...

(b) If the freedom is impugned the court has a discretion to reject the evidence, the exercise of which will turn on all the circumstances which may point to unfairness to the accused if the confession is admitted..."

(c) If there was no unfairness the court could consider that, having regard to the means by which the evidence was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards...

(d) The question whether the conversation was recorded in circumstances such that it might be characterized as either unfair and/or improper include whether the accused had previously indicated that he/she refused to speak to the police.

(e) The right to silence will only be infringed where it was the informer who caused the accused to make the statement and where the informer was acting as an agent of the state at the time the accused made the statement. Accordingly, two distinct inquiries are required:

(i) As a threshold question, was the evidence obtained by an agent of the State?

(ii) Was the evidence elicited?

(f) A person is a State agent if the exchange between the accused and the informer would not have taken place in the form and manner in which it did take place but for the intervention of the State of its agents...

(g) Absent eliciting behaviour on the part of the police, there is no violation of the accused's right to choose whether or not to speak to the police. If the suspect speaks, it is by his or her own choice and he or she must be taken to have accepted the risk that the recipient may inform the police.

(h) Admissions will have been elicited if the relevant parts of the conversation were the functional equivalent of an interrogation and if the State agent exploited any special characteristics of the relationship to extract the statement; evidence of the instructions given to the State agent for the conduct of the conversation may also be important...

(i) The fact that the conversation was covertly recorded is not, of itself, unfair or improper, at least where the recording is lawful."

These considerations shed some light on the general approach that should be taken to s 90. However, the considerations are relevant primarily to cases involving the covert recording of a conversation between an accused person and someone well known to the accused. The considerations focus on questions of voluntariness and infringement of the right to silence. They largely adopt the approach in Broyles. The propositions in Pavitt are of limited relevance to the present case.

28 The final case to which reference was made is Em v The Queen [2007] HCA 46. At par [109], Gummow and Hayne JJ stated:

"When it is unfair to use evidence of an out of court admission at the trial of an accused person cannot be described exhaustively. "Unfairness", whether for the purposes of the common law discretion or for the purposes of s 90 may arise in different ways but many cases in which the use of evidence of an out of court admission would be judged in the exercise of the common law discretion to be unfair to an accused are dealt with expressly or by particular provisions of the Act other than s 90. Thus, although the discretion given by s 90 is generally similar to the common law discretion considered in Lee it is a discretion that will fall to be considered only after applying the other more specific provisions of the Act referred to at the start of these reasons. The questions with which those other sections deal most notably questions of the reliability of what was said to police or other persons in authority and what consequences follow from illegal or improper conduct by investigating authorities are not to be dealt with under s 90. The consequence is that the discretion given by s 90 will be engaged only as a final or "safety net" provision."

The decision of Kirby J was in the minority. However, I note the observation made by his Honour at par [195]:

" [195] Conclusion: the meaning of s 90 : The unfairness provision in s 90 of the Act was clearly intended to confer a "power or discretion" on a court in criminal proceedings to reject prosecution evidence that was at least as broad as that provided by the previous common law. It may even be that s 90 casts a wider net."

29 In this case, in relation to the issue of unfairness, significant circumstances are:

(1) The accused was fourteen years of age at the time of the admissions .

(2) As he was a "vulnerable person" under LEPRA, he was entitled to the protection of a support person. Similarly, when involved in a risk assessment at school, in accordance with the Guidelines, he was entitled to a support person or advocate.

(3) Six months before the conversation in question, when the accused was charged and the police sought to interview him, on legal advice the accused chose to exercise his right to silence. I infer, that had he received the benefit of a support person on 17 November 2010, he probably would not have said anything to the teacher beyond the original disclosure.

(4) The conversation occurred with an adult in a position of authority. As a subject teacher and Year 9 Advisor to the accused, the teacher was also responsible for the welfare of the accused.

30 I accept the Crown submission that, at the time of the conversation, the teacher had not fully embarked upon a risk assessment process. Rather, he was trying to form a view as to whether risk assessment was the appropriate way to proceed. He was probably also in a state of shock, having just been informed by a young boy that he had committed an armed robbery in the course of which he had wounded someone.

31 I do not suggest that anything done by the teacher was in any way improper, let alone deliberately so. However, it is unfortunate that the teacher encouraged the accused to go into some detail about the commission of a serious indictable offence and then contacted an officer of Juvenile Justice, who proceeded to pass all the information onto the police investigating the matter. It is unfortunate that the teacher did not follow his normal practice of cautioning students in relation to the disclosure of criminal offences.

32 Counsel for the accused submitted that the teacher's conduct involved the "exploitation" of a relationship of school teacher/year advisor and student. I do not accept that characterisation of the teacher's conduct. As I have mentioned, the teacher was probably in a state of shock. His primary concern was to try to ascertain whether there was a risk and the nature of the risk that might exist for other students. He was not focused on protecting the accused's position.

33 If this disclosure had occurred between an adult or an adolescent of sixteen or seventeen years and a person in a position of authority such as a teacher, I may have taken a different approach. But having regard to the matters to which I have just referred, it is my view that the circumstances in which the admissions were made do establish relevant "unfairness."

34 The Crown advanced an alternative argument that, even if the admission that followed the teacher's statement that the accused "had better tell (him) the whole story" (the second admission) was unfair, the preceding admission (the first admission) should not be excluded as it was made in different circumstances. Essentially, the difference involved the nature of the question or the degree of probing that resulted in the admission.

35 Counsel for the accused pointed out that, the nature of the question that resulted in the first admission is unclear. According to Exhibit VD1, Annexure B, the teacher sought further particulars of the charge/s, but according to Annexure D, the teacher asked a rolled up, leading and interrogative question. The nature of the questioning is a circumstance that is relevant to the determination of unfairness. If the teacher questioned the accused in the terms suggested in Annexure D, then that is a factor that supports exclusion of the first admission. It is a circumstance of unfairness attaching to the making of the first admission.

36 However, under section 90, the fundamental issue is not whether the admission was made in circumstances that were unfair at the time (although contemporaneous unfairness is certainly relevant ). Rather, the fundamental issue is whether, having regard to the circumstances in which it was made, it would be unfair to use the admission.

37 In relation to that issue, each of the four significant circumstances set out in paragraph 28 above applies with equal force to both the first admission and the second admission. Consequently, it would be unfair to use both the first admission and the second admission .

38 As to the fact that there was no support person present when the admissions were made, neither the Guidelines nor LEPRA required that a support person be present. A formal risk assessment process had not commenced. However, the Guidelines and LEPRA are relevant because they manifest a community expectation that children will be supported in potentially incriminating situations.

39 I now consider whether, in the exercise of my discretion, I should exclude the material. Important public policy considerations attach to this situation. The usual considerations of, on the one hand, the public's need to bring criminals to justice for the protection of the community and, on the other hand, the entitlement of persons to be treated fairly, are somewhat differently balanced in this case. The public policy consideration of bringing an accused person to justice has to be seen somewhat differently when the accused is a fourteen-year-old child. Where a child is concerned, the need for fairness to the child must generally tip the balance and the discretion should generally favour the child. Further, there is a public policy argument favouring the protection of the relationship of trust between teacher and student.

40 The admissions will be excluded.

Decision last updated: 26 July 2011