Supreme Court New South Wales

• Medium Neutral Citation: CL v Director of Public Prosecutions (NSW) [2011] NSWSC 943
• Hearing dates: 30/06/2011
• Decision date: 26 August 2011
• Jurisdiction: Common Law
• Before: Fullerton J

Decision

Orders made by Chief Magistrate Henson on 22 February 2011 are set aside.

• Catchwords: APPEAL FROM LOCAL COURT - application for evidence of admissions to be excluded - admissions not tape recorded - whether s 281 of the Criminal Procedure Act only applies to offences being dealt with on indictment - whether s 281 of the Criminal Procedure Act has application to proceedings conducted in accordance with ss 26-31 of the Children (Criminal Proceedings) Act - discretion to admit evidence under ss 85 and 86 of the Evidence Act
• Legislation Cited: Children (Criminal Proceedings) Act 1987; Crimes Act 1900; Crimes (Appeal and Review) Act 2001; Criminal Procedure Act 1986; Director of Public Prosecutions Act 1986; Evidence Act 1995
• Cases Cited: 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
• Category: Principal judgment
• Parties: CL (Plaintiff); Director of Public Prosecutions (NSW) (Defendant)
• Representation: Counsel; JS Manuell SC (Plaintiff); CA Webster (Defendant); Solicitors; Aboriginal Legal Service (NSW/ACT) (Plaintiff); Director of Public Prosecutions (NSW) (Defendant)
• File Number(s): 2011/90688
• Publication restriction: Plaintiff to be identified by pseudonym "CL"

Decision under appeal

• Jurisdiction: 9109
• Date of Decision: 2011-02-22 00:00:00
• Before: Chief Magistrate Henson

Judgment

1 HER HONOUR: The plaintiff (by his tutor) seeks relief pursuant to s 52(1) of the Crimes (Appeal and Review) Act 2001 following his release on probation pursuant to s 33(1)(b) of the Children (Criminal Proceedings) Act 1987 after he was found guilty of a breach of s 112(2) of the Crimes Act 1900 by Chief Magistrate Henson in the Children's Court at Grafton on 22 February 2011.

2 The proceedings in the Children's Court were prosecuted by a police officer upon service of a Court Attendance Notice. The Director of Public Prosecutions has since taken over conduct of the proceedings under s 9 of the Director of Public Prosecutions Act 1986 and appears as the defendant in the proceedings in this Court in that capacity.

3 The police alleged that the plaintiff and two of his friends broke the window of a shop and then entered the shop and stole scooters and scooter wheels. A police officer interviewed the plaintiff in the presence of his aunt at his home on 19 June 2010. During the course of the interview he made admissions. The interview was recorded by the police officer in her notebook after which it was signed by the plaintiff and his aunt. The interview was not recorded by means of a tape recording or otherwise adopted in an electronically recorded interview at any later date.

4 The plaintiff subsequently entered a plea of not guilty.

5 The plaintiff's solicitor objected to the tender of the plaintiff's admissions to the police officer on the ground that contrary to s 281 of the Criminal Procedure Act 1986 the admissions were not tape recorded.

6 That section relevantly provides as follows:

281 Admissions by suspects

(1) This section applies to an admission:

(a) that was made by an accused person who, at the time when the admission was made, was or could reasonably have been suspected by an investigating official of having committed an offence, and

(b) that was made in the course of official questioning, and

(c) that relates to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person.

(2) Evidence of an admission to which this section applies is not admissible unless:

(a) there is available to the court:

(i) a tape recording made by an investigating official of the interview in the course of which the admission was made, or

(ii) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in subparagraph (i) could not be made, a tape recording of an interview with the person who made the admission, being an interview about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or

(b) the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made.

(3) ...

(4) In this section:

...

official questioning means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence.

reasonable excuse includes:

(a) a mechanical failure, or

(b) the refusal of a person being questioned to have the questioning electronically recorded, or

(c) the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned.

tape recording includes:

(a) audio recording, or

(b) video recording, or

(c) a video recording accompanied by a separately but contemporaneously recorded audio recording.

7 The police officer gave evidence on the voir dire that left room for doubt as to whether she fully appreciated her obligations to tape record the interview despite there being no doubt that she was officially questioning the plaintiff in relation to an indictable offence. When questioned as to why she did not tape record the interview she said that the battery in her hand held tape recorder was flat and it was for this reason that she recorded the interview with the plaintiff in her notebook. She agreed that there might have been a video camera in the police vehicle but that she did not consider using it; that she could have returned to the police station and obtained a tape recorder or that she could have taken the plaintiff and his aunt to the police station and spoken to him there. She went on to say that she elected not to afford the plaintiff the opportunity of adopting his admissions at the police station in an ERISP since this would have involved processing him into custody which she was desirous of avoiding given his age.

8 At the conclusion of the voir dire the plaintiff's solicitor renewed his application for evidence of the admissions to be excluded. He submitted that because an offence contrary to s 112(2) is strictly indictable (that is, it is not an indictable offence that can be "dealt with summarily without the consent of the accused person " as provided for in s 281(1)(c) of the Criminal Procedure Act ), and since the interview with the plaintiff was not tape recorded and where the police officer's failure to tape record it was not otherwise excusable under s 281(2), the prohibition of the admission of the evidence under s 281(1) was effective to render the evidence inadmissible.

9 His Honour rejected that submission. He held that s 281 of the Criminal Procedure Act had no application to proceedings conducted in accordance with ss 26-31 of the Children (Criminal Proceedings) Act. Those sections relevantly provide as follows:

26 Application

(1) This Part applies to:

(a) the Children's Court, and

(b) any criminal proceedings before the Children's Court,

notwithstanding any law or practice to the contrary.

(2) In the event of an inconsistency between this Part and Part 2, this Part shall prevail to the extent of the inconsistency.

27 Application of Criminal Procedure Act 1986 and other Acts

(1) Subject to Part 2 and to the rules of the Children's Court, any Act or other law relating to the functions of the Local Court or Magistrates or to criminal proceedings before them applies to:

(a) the Children's Court, and

(b) any criminal proceedings before the Children's Court.

(2) In particular (and subject to Part 2 and to the rules of the Children's Court), the provisions of the Criminal Procedure Act 1986 that apply to the Local Court and any criminal proceedings before the Local Court apply to the Children's Court and any criminal proceedings before the Children's Court.

(3) If this Part and any Act or other law applied by this section (other than the Bail Act 1978) are inconsistent, this Part shall prevail to the extent of the inconsistency.

28 Jurisdiction of the Children's Court

(1) The Children's Court has jurisdiction to hear and determine:

(a) proceedings in respect of any offence (whether indictable or otherwise) other than a serious children's indictable offence, and

(b) committal proceedings in respect of any indictable offence (including a serious children's indictable offence),

if the offence is alleged to have been committed by a person:

(c) who was a child when the offence was committed, and

(d) who was under the age of 21 years when charged before the Children's Court with the offence.

(2) ...

29 ...

30 ...

31 Hearing of charges in the Children's Court

(1) If a person is charged before the Children's Court with an offence (whether indictable or otherwise) other than a serious children's indictable offence, the proceedings for the offence shall be dealt with summarily.

(2) Notwithstanding subsection (1):

(a) if a person is charged before the Children's Court with an indictable offence (other than an offence that is punishable summarily without the consent of the accused), and

(b) if the person informs the Children's Court (at any time during, or at the close of, the case for the prosecution) that the person wishes to take his or her trial according to law,

the proceedings for the offence shall not be dealt with summarily but shall be dealt with in accordance with Divisions 2-4 (other than sections 60 and 61) of Part 2 of Chapter 3 of the Criminal Procedure Act 1986 in the same way as if a court attendance notice had been issued in accordance with that Act.

(3) Notwithstanding subsection (1):

(a) if a person is charged before the Children's Court with an indictable offence, and

(b) if the Children's Court states that it is of the opinion, after all the evidence for the prosecution has been taken:

(i) that, having regard to all the evidence before the Children's Court, the evidence is capable of satisfying a jury beyond reasonable doubt that the person has committed an indictable offence, and

(ii) that the charge may not properly be disposed of in a summary manner,

the proceedings for the offence shall not be dealt with summarily but shall be dealt with in accordance with Divisions 2-4 (other than sections 60 and 61) of Part 2 of Chapter 3 of the Criminal Procedure Act 1986 in the same way as if a court attendance notice had been issued in accordance with that Act and as if the Children's Court had formed the opinion referred to in section 62 of that Act.

(4) ...

(5) ...

10 It would appear that his Honour reasoned to the conclusion that because s 31(1) provides that the proceedings are to be dealt with summarily (subject only to the plaintiff electing under section 31(2)(b) to have the matter dealt with on indictment or the Court determining under s 31(3) that it should be dealt with in this way), the offence was one that could be "dealt with summarily without the consent of the accused person " as provided for in s 281(1)(c) and for that reason the section had no application to the proceedings. (It was common ground that an offence against s 112(2) is not a " serious children's indictable offence " under ss 28(1)(a) and (b) of the Children (Criminal Proceedings) Act as defined in s 3 of that Act - an offence which must be dealt with according to law.)

11 His Honour went on to hold that were he mistaken as to the construction of the relevant legislation he retained a discretion to admit the evidence under ss 85 and 86 of the Evidence Act 1995, and that he would exercise his discretion to admit the evidence in any event.

12 There are two grounds of appeal relied upon by the plaintiff. The first that the Magistrate erred in holding that s 281 of the Criminal Procedure Act only applied to offences being dealt with on indictment (and for that reason that it had no operation in the Children's Court), and the second that he erred in holding that the Court retained a residual discretion to admit the evidence even if satisfied that there was no reasonable excuse for not recording an admission by a suspect under s 281.

13 In support of the first ground of appeal the plaintiff submitted that the effect of s 27(2) of the Children (Criminal Proceedings) Act is that the question whether or not an offence allegedly committed by a child is punishable summarily without the consent of the person must be determined by reference to Schedule 1 (Tables 1 and 2) of the Criminal Procedure Act , there being no alternative mechanism provided for in Part 2 of the Children (Criminal Proceedings) Act or the rules of the Children's Court. It was common ground that because an offence under s 112(2) is not an offence to which either Tables 1 and 2 to Schedule 1 of the Criminal Procedure Act applies, it is a strictly indictable offence and, accordingly, the offence with which the plaintiff was interviewed and to which the admission related was strictly an indictable offence for the purposes of s 281(1)(c).

14 The plaintiff submitted that the mere fact that s 31 of the Children (Criminal Proceedings) Act provides a procedure for dealing with that offence summarily in the Children's Court does not convert it into an indictable offence that can be dealt with summarily without the consent of the accused person for the purposes of s 281(1)(c) and for that reason s 281 did apply to the proceedings and his Honour was in error in holding to the contrary .

15 Counsel for the Director of Public Prosecutions submitted that while on strict construction the phrase an indictable offence that can be dealt with summarily without the consent of the accused person in s 281(1)(c) picks up the language in Tables 1 and 2 of the Criminal Procedure Act, it is not inconsistent with the operation of s 31(1) of the Children (Criminal Proceedings) Act which provides that the proceedings for an indictable offence committed by a child shall be dealt with summarily subject only to the child electing to have the matter determined at trial in accordance with s 31(2) or the Magistrate determining that the matter should not be disposed of summarily under s 31(3). It was submitted that the legislative mandate that an indictable offence allegedly committed by a child shall be dealt with summarily in the Children's Court without any reference to the question of the consent, is capable of being reconciled with a limitation on the operation of s 281 by subsection (1)(c) so that it only applies to offences committed by children prosecuted on indictment. She drew support for this submission by the express provision in s 13 of the Children (Criminal Proceedings) Act for protections afforded children in the face of police questioning:

13 Admissibility of certain statements etc

(1) Any statement, confession, admission or information made or given to a member of the police force by a child who is a party to criminal proceedings shall not be admitted in evidence in those proceedings unless:

(a) there was present at the place where, and throughout the period of time during which, it was made or given:

(i) a person responsible for the child,

(ii) an adult (other than a member of the police force) who was present with the consent of the person responsible for the child,

(iii) in the case of a child who is of or above the age of 14 years-an adult (other than a member of the police force) who was present with the consent of the child, or

(iv) an Australian legal practitioner of the child's own choosing, or

(b) the person acting judicially in those proceedings:

(i) is satisfied that there was proper and sufficient reason for the absence of such an adult from the place where, or throughout the period of time during which, the statement, confession, admission or information was made or given, and

(ii) considers that, in the particular circumstances of the case, the statement, confession, admission or information should be admitted in evidence in those proceedings.

(2) In this section:

(a) a reference to a person acting judicially includes a reference to a person making a determination as to the admissibility of evidence in committal proceedings, and

(b) a reference to criminal proceedings is a reference to any criminal proceedings in which a person is alleged to have committed an offence while a child or which arise out of any other criminal proceedings in which a person is alleged to have committed an offence while a child, and

(c) a reference to a person responsible for a child does not include a member of the police force (unless he or she has parental responsibility for the child).

(3) Nothing in this section limits or affects the admissibility in evidence in any criminal proceedings against a child of any statement or information that the child is required to make or give by virtue of the provisions of any Act or law.

16 The question of construction raised by the first ground of appeal is readily resolved and in the plaintiff's favour. Consistent with the analysis given to the equivalent provision formerly in s 424A of the Crimes Act by Smart AJ in R v Rowe [2001] NSWCCA 1; 50 NSWLR 510 at [40], I am satisfied that the qualification in s 281(1)(c) is to the type of offence to which the admission relates (namely an indictable offence that can be prosecuted without the accused's consent under Tables 1 and 2 of Schedule 1 of the Criminal Procedure Act ) and not the nature of the proceedings where the admission is sought to be led as might have been the case were the exception in s 28(1)(c) to read "other than an indictable offence that is dealt with summarily without the consent of the accused".

17 It is clear that the plaintiff was officially interviewed and made admissions that related to an indictable offence (namely an offence contrary to s 112(2) of the Crimes Act ) which were not tape recorded. I am satisfied that for this reason the objection was properly taken to the tender of the admissions under s 281.

18 Accordingly, the first ground of appeal is made out and the orders made by Chief Magistrate Henson must be set aside. However, because of the joint approach of the parties to the question whether the matter should be remitted (neither party urging me to remit in the circumstances but to determine the question of the admissibility of the admissions myself by reference to the transcript of evidence in the Children's Court) there is no need to consider the second ground of appeal.

19 I have already referred to the evidence bearing on the question as to whether the police officer had a reasonable excuse for not tape recording the interview with the plaintiff at his aunt's house and not later recording any adoption of those admissions. The principles to be applied on the question of admissibility in these circumstances have been considered by the Court of Criminal Appeal in R v Rowe , R v Reid [1999] NSWCCA 258, albeit in the context of s 424A of the Crimes Act , and this Court in R v Crowther-Wilkinson; R v Cowie [2003] NSWSC 44; 138 A Crim R 473 albeit in the context of s 108 of the Criminal Procedure Act , another cognate provision.

20 In applying these principles, and in particular having regard to what was said by Smart AJ in Reid at [65]-[70] (Spigelman CJ and James J concurring), I am satisfied that despite there being nothing to suggest unfairness in the way the plaintiff was treated by police, there was no reasonable excuse for the failure of the police officer to record the interview with him and the evidence of his admissions should have been excluded. In so finding I expressly take into account the fact that the plaintiff had organised for the police to attend his home to be interviewed when his aunt was present. This militated in favour of his continued co-operation with police were the interview delayed to enable the police officer to obtain a tape recorder or were he invited to accompany police to the police station to enable the interview to be recorded or to have the notebook interview adopted. Since it is not suggested that there was other evidence capable of supporting a finding of guilt, I am satisfied there is no warrant in the matter being remitted to the Children's Court for a further hearing.

21 In the result, I make the following orders:

1. The orders made by Chief Magistrate Henson on 22 February 2011 are set aside.

2. There is no order as to costs.

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Decision last updated: 06 September 2011