Supreme Court New South Wales

• Medium Neutral Citation: R v FE [2013] NSWSC 1692
• Hearing dates: 11, 12 November 2013
• Decision date: 12 November 2013
• Jurisdiction: Common Law - Criminal
• Before: Adamson J

Decision

Exclude the interview with the accused on 12 July 2012 and the ERISP conducted with the accused on 2 August 2012.

• Catchwords: EVIDENCE - s 138 and s 139 Evidence Act 1995 - improperly obtained evidence- failure to caution the accused- interview conducted notwithstanding initial refusal to answer questions- s 90 Evidence Act 1995 - unfair deprivation of right to silence- advantage taken of vulnerable person- 15-year-old girl; CRIMINAL LAW - right to silence- requirement for caution- provisions relating to juveniles
• Legislation Cited: Children (Criminal Proceedings) Act 1987, s 13; Evidence Act 1995, s 90, s 138, s 138(3)(a)-(c), s 139, s 139(1), s 139(5)(a)-(c); Law Enforcement (Powers and Responsibilities) Act 2002; Law Enforcement (Powers and Responsibilities) Regulation 2005, reg 21, reg 24, reg 25, reg 29, reg 30
• Cases Cited: Bunning v Cross [1978] HCA 22; 141 CLR 54; Em v The Queen [2007] HCA 46; 232 CLR 67; Parker v Comptroller-General of Customs [2009] HCA 7; 83 ALJR 494; Petty v The Queen [1991] HCA 34; 173 CLR 95; R v Dalley [2002] NSWCCA 284; 132 A Crim R 169; R v Director of Serious Fraud Office; Ex parte Smith [1993] AC 1; R v Em [2003] NSWCCA 374; R v Ireland [1970] HCA 21; 126 CLR 321; R v Phung and Huynh [2001] NSWSC 115; R v Plevac (1995) 84 A Crim R 570; R v Swaffield [1998] HCA 1; 192 CLR 159; Reid v Howard [1995] HCA 40; 184 CLR 1; The King v Lee [1950] HCA 25; 82 CLR 133; X7 v Australian Crime Commission [2013] HCA 29; 87 ALJR 858
• Category: Interlocutory applications
• Parties: Regina (Crown); FE (Accused)
• Representation: Counsel: J Crespo (Crown); N M Steel (Accused); Solicitors: Solicitor for Public Prosecutions (Crown); Mark Klees & Associates (Accused)
• File Number(s): 2012/241043
• Publication restriction: Yes; Pursuant to s15A Children (Criminal Proceedings) Act 1987, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child offender. Identifying information has been removed from this version of the judgment to comply with the statute.

Judgment

Introduction

1 At about 2am on Sunday 8 July 2012, Christopher Brilliantes stabbed Patrick Crowe at the Parramatta Transport Interchange. Crowe died a few hours later from the stab wound inflicted by the knife that had pierced his lung. Brilliantes pleaded guilty to murder and was sentenced on 8 November 2013.

2 By indictment presented on 11 November 2013, FE, the accused, pleaded not guilty to both counts:

1. On 8 July 2012 at Parramatta in the State of New South Wales used unlawful violence towards Patrick CROWE by conduct that would cause a person of reasonable firmness present at the scene to fear for his or her personal safety.

2. On 8 July 2012 at Parramatta in the State of New South Wales did murder Patrick CROWE.

3 Prior to the commencement of the trial, there was a voir dire to determine the admissibility of two records of interview with the accused. The first was conducted when she presented herself at Parramatta Police Station on 12 July 2012. The second was an Electronically Recorded Interview with Suspected Person (ERISP) conducted after her arrest on 2 August 2012.

Facts

4 It is necessary to set out in some detail what was known to the police when the accused presented at Parramatta Police Station on the evening of 12 July 2012. These facts enable a finding to be made whether she was relevantly a suspect or a witness. Relevant facts concerning the two interviews to which objection is taken will also be outlined and the statements relied on as admissions in both interviews identified.

5 The Crown relies on the interviews on two bases: first, the accused made admissions in the course of each of them; and secondly, that she lied in each of them. The Crown confirmed that it did not rely on the lies as amounting to a consciousness of guilt, but that it would rely on the lies to impugn the accused's credibility if she gave evidence at the trial.

The commencement of the investigation: Sunday 8 July 2012

6 On Sunday 8 July 2012, Detective Sergeant Fenwick was appointed officer-in-charge of the investigation. On that day statements were taken from Joshua Thompson and Dean Roche, friends of the deceased who were with him when he was stabbed. Statements were also taken on 8 July 2012, from Shenoda Rizk and Reza Bahramrad, independent witnesses who saw the stabbing. CCTV footage was obtained from Westfield Shopping Centre and from Railcorp that recorded the events leading up to and including the stabbing and its aftermath.

7 Thompson said in his statement that he, Roche and the deceased had encountered three girls in Church Street Mall. He described two out of the three. His description of one of them is consistent with the appearance of the accused. He told of a continuing altercation, principally between the three girls and Crowe. Thompson's impression was that Roche appeared to be siding with the girls against Thompson and Crowe. Thompson then described the arrival of four males and the ensuing confrontation that resulted in the death of Crowe.

8 In his statement, Roche recounted that he had been drinking with Crowe and Thompson when they saw three girls on the way to the interchange. He recalled that two of the girls were of Islander appearance and the third was Caucasian. He described a verbal exchange between Crowe and the girls. He diverted to Hungry Jacks to buy food while Thompson and Crowe went ahead to the bus stop. When Roche joined them at the bus stop he noticed that the three girls were already there.

9 According to Roche's statement, one of the girls announced that she did not like the other two boys but that she liked Roche. Crowe took exception to this comment and reacted by pushing Roche into a planter box. When Roche stood up, he saw four or five Islander boys running towards them. The boys began to assault Crowe and Roche. Roche heard one of the girls, whom he thought was the Caucasian one, yelling at the boys, pointing towards him (Roche) and saying, "Don't hurt him."

10 Roche described the assault and said that it lasted for about 30 seconds. The Islander males ran away after Crowe was stabbed. Later in hospital, Thompson told Roche: "I got threatened by a knife, that's why I didn't jump in the fight, I froze up."

11 Rizk, an independent witness, was waiting for a bus at the interchange at the same stop where Crowe and Thompson were waiting for Roche. Rizk observed the interaction between the two males and three females who also came to the bus stop. He saw the third male, Roche, arrive. He saw the girls arguing, principally with Thompson, who was wearing a red jumper. He also saw one of the girls receiving calls on her mobile phone. He heard the girl say on the phone, "I'm waiting at the bus stop." He saw a confrontation between Roche and Crowe, concerning the girls, at the conclusion of which Crowe pushed Roche over.

12 Rizk described the arrival of four young males, some of whom had dark, but not black skin. He said in his statement:

26. The three girls started pointing at the male with the off-white t-shirt and saying "This guy, this guy."

27. The male with the red jumper ran to the bus stop to my left and the male with the off-white t-shirt went to the bus stop to my right. The four young males followed the male with the off-white t-shirt and surrounded him.

28. As the four young males ran past me towards the male in the off-white t-shirt, I saw the last young male was carrying a knife in his right hand down by his side. The knife had a shiny blade which was wide and about five inches long with a pointed tip. The knife wasn't a kitchen knife.

29. The young male carrying the knife was about 17-18 years old, skinny and short, maybe 150cm tall, wearing pants and an off-white coloured jumper.

30. When the four young males surrounded the male with the off-white t-shirt, he moved backwards until he got to the bus stop seat and he sat down. The four young males started hitting him with their hands. I didn't see the male in the off-white t-shirt fighting back. After a few seconds the four young males ran away to the right.

13 Bahramrad was also waiting for a bus at the interchange, about 50 ms away directly opposite the bus bay from where Crowe and Thompson were waiting for their bus. He heard an argument between a male and a female and then saw five or six males of Islander appearance running towards them. It appeared to him that the males were reacting to whatever had happened between the male and the female. According to Bahramrad:

The two males that were trying to shield the Caucasian male, whom was having an argument with the female, appeared to me that they were trying to apologise to Islander males, and protect him and themselves from getting injured.

14 Bahramrad tried to intervene, without success. He said:

"At this point one of the islander males has left the group and walked towards me he would have been about 10 metres from me, he said words similar to, "Didn't you see what he did to my sister." I responded by saying words similar to he is "scared leave him alone if you [don't] stop I will call the cops."

15 Bahramrad subsequently saw one of the Caucasian males, Crowe, slumped to the ground. When Bahramrad approached Crowe and saw that he was bleeding, he tied his top around him to put pressure on the wound.

Warrants obtained on Tuesday 10 July 2012

16 On Tuesday 10 July 2012 police obtained telephone intercept warrants with respect to Brilliantes' mobile phone and also the phone of young person JV, who was one of the males with Brilliantes who had been identified from CCTV footage. SL and Judel Godoy had also been identified from CCTV footage as being among the young males who were present at the scene at the time of the stabbing.

Wednesday 11 July 2012: the arrests of JV, Brilliantes, Godoy and TC

17 On the morning of Wednesday 11 July 2012, JV attended Parramatta police station with his grandfather, aunt and a solicitor. He was arrested and charged with affray. He was cautioned. On legal advice he declined to be interviewed.

18 At 4.20 pm on 11 July 2012, Detective Fenwick went with other police officers to a unit at Noller Parade in Parramatta to execute a search warrant. Brilliantes was arrested and charged. One of the items seized was Brilliantes' mobile phone.

19 Godoy was interviewed by police on the evening of Wednesday 11 July 2012. He was fairly vague about what happened on 8 July 2012. He recalled hearing the girls "yelling" during the fight. He identified himself and Brilliantes in stills taken from CCTV footage. He also identified stills of two of the three girls who were also there, HH and ZP, although he did not name them.

20 The CCTV footage available to police at that time contained images of the platform where the deceased was stabbed, as well as other footage by which some of the protagonists were identified. The footage depicted a female pointing at Crowe before he is stabbed by Brilliantes. This female, the accused, was not one of the two girls whom Brilliantes identified.

21 On Wednesday 11 July 2012 TC was arrested and charged with affray. He was cautioned at the Parramatta Police Station in the presence of his father at 8.35 pm. He received legal advice by telephone from Children's Legal Service, which is provided by Legal Aid. He was asked by police what he was advised to say and he informed police that he had been told not to participate in an interview. He declined to participate in a line-up when he was informed that he was not obliged to.

22 Brilliantes was interviewed at 9.36 pm that evening. He made a full confession. There was no reference in his ERISP to any encouragement having been given to him by the accused or her female friends to stab Crowe, although the three girls are mentioned in his statement. He admitted to receiving a phone call from JV following which he attended the interchange with other male associates whom he identified as Godoy, TC and SL. He was asked to identify persons from still photographs taken by CCTV cameras which were blown up and shown to him in the course of the ERISP. He also identified HH and ZP from stills taken by CCTV cameras and gave police their first names.

Thursday 12 July 2012: the media release

23 On Thursday 12 July 2012, Superintendent Redfern issued a media release which was shown on Channels Seven, Nine and Ten. He told Detective Fenwick about the release during the afternoon although the latter saw neither the release itself, nor any of the broadcasts.

24 The Channel Seven 6 pm news contained the following statements:

Reporter: It's the police case that Patrick and his friends came across three girls as they headed for the bus stops at Parramatta "the females verbally abused the three men who responded with verbal taunts". Witnesses say the girls followed them. There were more insults, one made a phone call and several males arrived. She was seeing pointing at Patrick saying: "this guy, this guy". The 22-year-old was surrounded, kicked, punched then stabbed twice.

Judel Godoy has told the police his friend Brilliantes tried to give him a knife saying: "clean it". The 18-year-old is being charged with concealing a murder. He's been released on bail with strict curfew and banned from central Parramatta.

The investigation into Patrick Crowe's murder is far from over. Police are still trying to find four people: a man in his late teens of Islander appearance and three girls aged between 15 and 17.

Police: ... We will do whatever we can to find you and bring you to justice.

25 The Channel Ten news contained the following statements:

Report: This case has broken wide open?

Reporter: Yes it has, Bill. Last night police arrested four young men. Two of the four are adults, whilst the other two are legally children and today those two adults face court here at Parramatta Local Court and tonight one of them remains behind bars, whilst the other has been released on bail.

Report: Eighteen-year-old Judel Godoy was there when Patrick Crowe was murdered, but he tried to hide from police. When detectives finally caught him, last night the teenager suddenly opened up and that honesty helped him get bail today.

The 18-year-old was nabbed by a special strike force, set up to investigate the stabbing death of 22-year-old Patrick Crowe. As the sun set, police filmed the arrests.

. . .

Report: Twenty-one -year-old Christopher Brilliantes is the accused murderer. Today in court he didn't show his face; instead he stayed in the cells and didn't apply for bail. Eighteen-year-old Godoy is charged with concealing a murder. Two other boys aged 15 and 16 were also charged with affray.

Patrick Crowe had been on a night out with mates when he was attacked at the Parramatta transport hub early on Sunday morning.

The apprentice chef was stabbed twice and was rushed to hospital to have surgery on a collapsed lung but later died. Police aren't done yet. They are still hunting one man and three women.

Police: We will do whatever we can to bring you to justice and if you're out there, my advice is to come forward and speak to police.

Reporter: Now late today, court documents were released, which explain why police are so keen to speak to those young women.

Police say it was those young women started the verbal argument with Patrick Crowe, and a group of young males attacked him after one of the young women pointed Patrick Crowe out and said: "this guy, this guy" and as we know, Patrick Crowe is now dead.

The interview with the accused on 12 July 2012

26 Just after 7 pm on 12 July 2012, the accused, HH and ZP presented themselves at the Parramatta Police Station. The accused recounted the circumstances of her arrival in her evidence on the voir dire:

We went to the front counter and the lady was asking how can she help us and then we told her about that there was coppers looking for us and we're on the news.

27 They saw Detective Fenwick and Detective Senior Constable Marino. Detective Fenwick said in his statement:

"All stated they were the girls present at the scene in Parramatta as mentioned in the press release that day."

28 Detective Marino described how unexpected their arrival was in his evidence on the voir dire:

"If I may say, the girls attended unannounced, sir, and we had there was very little time to perhaps formulate any strategies or plans on how we would take a statement, what to explore. We went downstairs pretty cold. When I say that, I didn't expect and I know that Detective Sergeant Fenwick did not expect their presence."

29 The officers ascertained that ZP was 14, that the accused had just turned 15 and HH was 16. They deferred questioning the girls until support persons had arrived. They found out from the accused that her sister, Fehi, who was 19, had accompanied them to the station. Police arranged for the accused's mother, LE, who was also ZP's aunt, to be collected by police and brought to the station to be a support person. LE is Tongan and her mother tongue is Tongan. She speaks and understands English.

30 The accused was led upstairs from the reception area to the investigation manager's office. Once she was inside the office, the door was partly closed. When she was told, "Don't leave the office" and "Stay in the office", she believed that she was not allowed to leave. She left the office only once to call her mother, whom police required to attend to act as a support person. The accused had to wait about an hour for her mother to arrive.

31 I accept the accused's evidence, including the following:

Q. . . . Why did you answer all the questions you were asked in that interview?

A. I thought we had to cause the cops asked us questions and I thought we're supposed to answer them.

32 The accused was questioned by Detective Marino who was working part-time on the task force associated with the death of Crowe. He had neither seen the media release, the media reports, nor the CCTV footage at the time he conducted the interview. He was, however, aware that there had been a media release. He did not know that the media reports had described the girls variously as persons the police were "still trying to find" and "still hunting". He knew that there was some evidence that a young girl had pointed out the deceased before Brilliantes stabbed him but he did not know that the girl was one of the three girls who presented themselves at the police station on 12 July 2012. He could not recall whether he had been told that the two girls other than the accused had the same first names as the girls mentioned by Brilliantes in his ERISP.

33 Detective Marino recalled that Detective Fenwick had asked him to find out about communication, and in particular mobile telephone communication, around the time of the stabbing. He accepted that he might have been asked to find out whether any of the girls knew that the principal offender had a knife. He also knew that he had to ask them about their clothing because he knew that there was CCTV footage of the incident although at that stage he did not know that any of the girls was depicted on CCTV.

34 Senior Constable Lawler was also present at the interview that Detective Marino conducted. He did not have any involvement with the accused before the interview started. He was not aware of the media release until he was called to give evidence on the voir dire before me.

35 When the accused was asked, at the commencement of the interview, why she attended the police station she said:

"'Cause, um, we heard that on the news about the stabbing at, um, Parramatta. Then they said, "Let's go to the cop, police station to tell the side of our story."

36 The accused was not cautioned and no warning was given. Detective Marino explained in evidence that she was treated as a witness rather than as a suspect.

37 Detective Marino asked the accused about the difference between the truth and a lie and asked her to explain it. In the main he asked her non-leading questions about what had happened on the night of Saturday 7 and Sunday 8 July 2012.

38 The Crown relies on the following answers to questions asked in the first interview as admissions that the accused knew that Brilliantes had a knife when she tapped him on the shoulder and pointed out Crowe and that she intended that he cause Crowe grievous bodily harm:

Q139. Do you know why they were coming towards your direction?

A. I'm not sure. I, I only heard like all of them, it was scary and I was like scared. And then me and the girls like walked off. And then, yeah, then one of them was hitting the nice guy. And the I, um, went in front, and I was like, "Don't hit him", just walk away or whatever and then like, they're like, trying to hit, so I moved and then I didn't know what way to go, so I went, I followed [HH] and Sifa. And then we went towards the old station.

. . .

Q142. Hit who?

A. Um, one of those boys, those boys that ran down. And then they started fighting. And then, I hear one of the guys saying, um, "He has a knife" and then I really got scared, so then I ran towards Hayley and them. And then those boys were just looking at us and then we ran...

. . .

Q156. What can you tell me about that knife?

A. Um, the, out of these three boys, the tall one, yelled, "Oh, he has a knife" and 'cause like, I was...

. . .

Q161. The tall guy said...

A. "Oh, he has a knife". And then, um, I ran to [HH] and then we turned around and then we seen, um, one of them yell out, "Oh, we need a ambulance".

39 At the conclusion of the interview, the accused was again asked why she decided to go to the police station that evening, to which she answered:

A 188. "Um, [HH], um, we met up with [HH] and then, um, she's like, "Let's go to the police station and tell them the side of our story", 'cause she heard that, um, about the police wanting three girls about the um, murdering. And then we're like, OK. So we walked from Parramatta shops to here."

40 The investigation continued. It is not necessary to recount the details of what occurred between this time and 2 August 2012 because the Crown accepted that, when the accused was subsequently interviewed on 2 August 2012, she had been arrested and was a suspect.

41 On 1 August 2012 Detective Fenwick decided to arrest the accused in relation to the homicide of Crowe. A search warrant was also obtained in relation to the house in which she lived. Detective Senior Constable Gibson and Senior Constable Lawler were responsible for executing the warrant.

42 The accused was at home with her mother, her brother and two sisters while the warrant was being executed. When the officers arrived, Detective Gibson told the accused that police were "investigating an affray and subsequent homicide of Patrick Crowe". He told her that she was "under arrest for that" and told her that she did not have to say or do anything if she did not want to.

43 The execution of the search warrant was filmed and sound-recorded. I viewed the segments of the record of the execution of the search warrant that were relied upon by the Crown and the accused. It was apparent from the recording of the execution of the warrant that LE spoke reasonably good conversational English. However, at the conclusion of the execution of the warrant, another police officer, Inspector Matthew Nicholas, asked her whether she had any complaints about the way in which the search was conducted. LE did not respond. He reiterated the question. Finally one of her daughters told her that she was being asked whether she liked or "no liked" the search warrant. I am satisfied that LE's vocabulary, while sufficient for everyday life, is not substantial and she does not understand longer words.

44 While the warrant was being executed, one of the accused's sisters mentioned to one of the police officers that she had an ATAR score of 91 in the Higher School Certificate and that she wanted to go into the police force. He observed that she was "smarter than most cops" and suggested that she "go and be a rocket scientist" rather than a police officer. When she asked about the best positions in the police force, he said: "Detectives, we're the brains of the organisation, supposedly."

45 Without consulting the accused, police selected her mother as her support person. I accept the accused's evidence that she would have preferred that one of her sisters fulfil that role because of what she believed to be their greater command of the English language and better understanding of the world.

46 Detective Fenwick explained in his evidence on the voir dire that, as at 2 August 2012, the decision had not yet been made whether the accused would also be charged with murder. He said that several people had been arrested "in relation to the murder" who were not necessarily ultimately charged with murder. He said:

"As I said before, from what we had, she obviously had a case to answer for in relation to that. That's why she was brought back, that's what she was arrested, that's why she had to speak for it. We were going to review it at the end of the interview also to see what determination it was. It wasn't like she was going to be charged regardless."

47 Police drove the accused and her mother back to Parramatta Police station. Detective Gibson took her to the charge room with her mother while Senior Constable Lawler prepared documents for the interview that he proposed to conduct. Sergeant Oakley, the Custody Manager, read out and gave the accused a copy of the "Caution and Summary of Part 9 [of the Law Enforcement (Powers and Responsibilities) Act 2002]" which she signed at 11.02 am. The accused's mother was given a document entitled "Role of Support Person" which she signed at 11.04 am.

48 The accused's lack of appreciation of what was happening is evident from her evidence generally, of which the following passage is an example:

Q. Now, when you went to the police station on 2 August, you understood you were now under arrest, didn't you?

A. When I got to the cop station and asked Oakley, yeah.

Q. What did he tell you?

A. No, 'cause I asked him, "Am I like getting locked up or something?" And then he told me "yes". And that's when I knew, 'cause I was still confused.

49 Afterwards the accused was given the opportunity to speak to a solicitor on the Juvenile Legal Aid Hotline. At 11.05 am Detective Gibson rang the hotline and was put through to Keisha Hopgood, a solicitor on duty. He told her that the charge was affray "at the moment". When she ascertained from him that the victim was dead she confirmed with him that there was a possibility of a murder charge. She was concerned that Detective Gibson had referred at the outset to affray, but not murder and suspected that he was not being entirely open with her. After she had spoken to him, she spoke with the accused.

50 Ms Hopgood recounted on the voir dire, by reference to her detailed contemporaneous file note, the advice she gave to the accused. She told the accused that because the charge was murder she could not be dealt with by the Children's Court. She also explained the right to silence to her and impressed upon her the gravity of her situation. She advised the accused not to participate in an interview since she was facing very serious charges. She summarised her advice in the following terms:

"But what I said to her, black and white, was she should not be interviewed, she not participate in an interview, she should not go on the ERISP, say no to that. There was no grey area in a situation like this. There is no grey area."

51 At the conclusion of the conversation the accused instructed Ms Hopgood to tell Detective Gibson that she did not want to be interviewed. Ms Hopgood asked the accused if she could speak with her support person but the accused told her that she would prefer to explain it to her mother herself.

52 Ms Hopgood communicated her instructions to Detective Gibson. She told him that not only did the accused not wish to be interviewed but that she did not want to go on tape. She told him that she would sign an entry in the police notebook: "I don't wish to be interviewed." He responded to her suggestion by saying that he was still going to put the accused on ERISP "in fairness so that he could put the allegations to her". Ms Hopgood told him that the accused did not want to go on tape and he could not compel her to do so. Ms Hopgood explained her approach in the following terms:

Q. And why did you find it necessary to advise him of those things?

A. Because unfortunately we've had situations where, and again it's the same "in fairness" line that's been used, that the police have said they want to give a young person the opportunity to hear the allegations and to put their refusal on tape. However, once a young person is in the interview room, allegations are put to them, pictures have been shown to them, and young persons have inadvertently, or without any further legal advice, ended up either doing a full interview or making comments, statements.

53 Ms Hopgood told Detective Gibson that she would confirm in writing that FE did not want to be interviewed and that he could not compel her refusal to be on ERISP. Ms Hopgood then spoke to the accused again. Phone records confirm that the total length of the call, which involved Ms Hopgood speaking to Detective Gibson twice and the accused twice, was 882 seconds, or almost fifteen minutes. The call concluded at about 11.20 am, according to phone records that were tendered. The timing and duration accord with the entries for communication on the Custody Management Record.

54 After the telephone call, Ms Hopgood arranged for a letter to be faxed to Detective Gibson at Parramatta Police Station. The facsimile imprint recorded that the letter was received at 12.33 pm. The letter said:

This letter is to confirm our telephone advice that the young person [FE] does not wish to be interviewed and does not wish to record her refusal.

She will agree to sign a notebook entry that states 'I do not wish to be interviewed and I do not wish to record my refusal'.

We note that Police Circular PC 05/02 states 'you do not have the power to compel or intimate to the suspect that they must participate in an electronic recorded interview for the purpose of recording their refusal. Record the refusal in your notebook...'

Please ensure that no interview or recording takes place with this young person. If there is any problem or change to these instructions, then please contact the writer through the Legal Aid Youth Hotline, as any change must be confirmed through further legal advice.

55 Where there is any inconsistency between the evidence of Ms Hopgood and the evidence of Detective Gibson, I prefer Ms Hopgood. I accept Ms Hopgood's evidence that she remembered this advice because of the seriousness of the accused's situation. Although she had given about a thousand hotline advices, only three of those involved a charge, or potential charge, of murder. She also had occasion to recall the conversation when she subsequently advised someone who was charged with murder. She remembered hearing later from another solicitor that, notwithstanding her advice, police had interviewed the accused. She made a detailed contemporaneous file note. She was methodical and meticulous about recording what had occurred in the hotline advice and confirming her advice by letter addressed to Detective Gibson. Detective Gibson could not recall many matters of significance. I do not accept that at the time of the interview the accused had been charged with murder. I accept that he told Ms Hopgood, as was the case before the interview on 2 August 2012, that the charge was then affray.

56 Detective Gibson did not see the letter from Ms Hopgood until he checked his pigeonhole the following day.

57 Detective Gibson informed neither Detective Fenwick, nor Senior Constable Lawler, nor Sergeant Oakley of what had occurred in the course of the hotline advice, nor what the accused's instructions were.

58 Most of the time while the accused was in the charge room she was some metres away from her mother and her vision of her was obscured by the fingerprinting machine.

59 At about 11.20 am, shortly after the call to Ms Hopgood ended, Detective Gibson and Senior Constable Lawler escorted the accused and her mother from the charge room to an interview room. The custody management records record that this occurred at 11.34 am although the officers in their statements recall that it occurred at about 11.20 am. The accused was not given an opportunity to speak to her mother privately after speaking with Ms Hopgood.

60 On the way from the charge room to the interview room, the accused asked Detective Senior Constable Lawler: "Where are we going?" to which he responded, "To the interview room".

61 The accused gave evidence that she said, "I'm not going to the interview room because the lady on the phone told me not to", to which Senior Constable Lawler responded, "You have to."

62 I am not satisfied that this exchange occurred precisely in that way and in those terms since I accept that if Senior Constable Lawler had appreciated that the accused had instructed her solicitor that she would not participate in an interview, he would not have conducted the interview other than to record that she refused to participate in it. However, I accept that the accused told Senior Constable Lawler that she did not want to go to the interview room and he told her that she had to. His response was, from his point of view, understandable, since he intended to caution her and record her response on the ERISP. He had not been privy to the conversation with Ms Hopgood and did not know that the accused did not want her response to be recorded, except in writing in a police notebook.

63 I accept the accused's evidence that the only reason she did the interview was because she thought she had to, as appears from the following exchange:

Q. She told you that you didn't have to participate in an interview?

A. I know, but I'm saying 'cause I already told the copper that I didn't want to do the interview, so he told me I had to, so obviously I had to do what the police had to say.

64 I reject the Crown submission that I should infer from the advice Ms Hopgood gave that the accused understood that she had a right to silence and could exercise it and that because the accused did not insist on it again in the interview room, I should infer that she was prepare to forego it. This submission is an unattractive one. The exercise of the right to silence ought be respected and not undermined, as it was in the present case, in the expectation that its holder will be unaware of its parameters and will, as a result, be dissuaded from continuing to insist upon it.

65 The Crown's submission is at odds with what I find to be the accused's limited understanding of what she was required to do and what the legal terms used meant. I accept her evidence that she did not understand several terms used in the interview, including the term "free will".

66 Furthermore, the phone records and the time of the interview show that the accused was taken to the interview room within a very short time after the phone call with Ms Hopgood. The suggestion that she had decided, through the exercise of her free will, to change her instructions instantaneously and participate voluntarily in an interview in which she had moments before decided on legal advice not to take part, is fanciful.

67 As Ms Hopgood had feared, the accused participated fully in an interview which commenced at 11.36 am and concluded at about 1 pm. She was cautioned at the commencement of the interview. At the conclusion of the interview she did not make any complaint about the interview and agreed that she had given answers of her "own free will".

68 I am satisfied that the accused did not understand that she had a right to silence or what such a right entailed. She did not appreciate that she was entitled to refuse to answer questions. The police, by subjecting her to an interview and asking her questions, took advantage of her youth and her vulnerability and her mother's limited education and English, which ill-equipped her to protect her daughter's rights.

69 The Crown relies on the following admissions made by the accused in the ERISP as tending to establish that the accused knew that Brilliantes had a knife when she tapped him on the shoulder immediately before he stabbed Crowe:

Q259. That's him? Yep.

A. I remember, like, he, he swung at, like, the group of boys. Like, they were, like, everywhere but I remember um, 'cause Dean was behind us, and I can remember the tall guy was on the side, like, where Nando's was. I think it was Nando's or Max Brenner. And then I um, one of the boys were in front of him and I remember he was yelling, oh, "Knife. There's a knife" or whatever. And then -

Q260. Who yelled that out?

A. The tall guy.

Q261. Yep.

A. And then in front, I think it was in front of him, like, I think, I can remember, like, what position but, like, that other guy was um, the skinny guy was punching on. And then Dean, like, Dean, like, I remember, I turned around and Dean was behind us when l put my hand up like that to one of the, to that boy. And then we ran up -

Q262. To what boy?

A. The boy that was in front of me that was trying to, like, hit Dean. And then I put my hand up like that. And then I ran, like, to the side and then, like, I didn't see Dean ever since then.

Q263. O.K. You, who yelled out "Knife"?

A. The tall guy.

Q264. The tall, chubby male... with the moustache and the baseball jacket?

A. Yep . . . 'Cause I was like, like, I was in front of him, I was, like, here and, like, her was, like, there.

. . .

Q269. Who is this, who was carrying a knife? Did you see a knife?

A. I didn't see a knife but I heard that guy say "Knife."

Q270. When he said, "Knife" what was he referring to and who was it that he was referring to?

A. 'Cause, like, they were, I, I think it was, like, three boys in front of him. Yeah. And then, like, he, I think he was talking to one. I think he was talking to one or, like, swearing at one. And then, like, he goes, "Knife, knife."

. . .

Q272. O.K. Did you know who he was talking about, who carried the knife?

Did he point him out or -

A. I think it was the guy that was closer to him.

70 At the conclusion of the interview, the accused was told that another officer would ask her questions about the way the interview was conducted but that she was not allowed to ask him questions. I accept that the accused did not ask any because she had been told that she was not permitted to do so.

Relevant legislation

71 Section 90 of the Evidence Act provides:

Discretion to exclude admissions

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 to use the evidence.

72 Section 138 of the Evidence Act relevantly provides:

Exclusion of improperly or illegally obtained evidence

(1) Evidence that was obtained:

(a) improperly or in contravention of an Australian law, or

(b) in consequence of an impropriety or of a contravention of an Australian law,

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:

(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or

(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:

(a) the probative value of the evidence, and

(b) the importance of the evidence in the proceeding, and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and

(d) the gravity of the impropriety or contravention, and

(e) whether the impropriety or contravention was deliberate or reckless, and

. . .

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

73 Section 139 of the Evidence Act relevantly provides:

Cautioning of persons

(1) For the purposes of section 138 (1) (a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if:

(a) the person was under arrest for an offence at the time, and

(b) the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person, and

(c) before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.

(2) For the purposes of section 138 (1) (a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if:

(a) the questioning was conducted by an investigating official who did not have the power to arrest the person, and

(b) the statement was made, or the act was done, after the investigating official formed a belief that there was sufficient evidence to establish that the person has committed an offence, and

(c) the investigating official did not, before the statement was made or the act was done, caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.

. . .

(5) A reference in subsection (1) to a person who is under arrest includes a reference to a person who is in the company of an investigating official for the purpose of being questioned, if:

(a) the official believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning, or

(b) the official would not allow the person to leave if the person wished to do so, or

(c) the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so.

74 The term "investigating official" is relevantly defined as including a police officer.

75 The burden of satisfying the condition that the evidence has been improperly or unlawfully obtained is on the person seeking its exclusion. If this condition is established, the party seeking to adduce the evidence bears the burden of proving facts relevant to matters in favour of its admission: Parker v Comptroller-General of Customs [2009] HCA 7; 83 ALJR 494 at [28] per French CJ.

76 Section 13 of the Children (Criminal Proceedings) Act 1987 relevantly prohibits the admission into evidence of an admission made to a member of the police force by a child unless a person responsible for the child is present. A parent is such a person.

77 Part 9 of Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) and the regulations made thereunder (LEPRA Regulations) also apply to persons under arrest. A child, defined as a person under 18 years, is a "vulnerable person": LEPRA Reg 24. LEPRA Reg 25 imposes an obligation on the custody manager for a vulnerable person to assist the person in exercising the person's rights under Part 9, including any right to make a telephone call to a legal practitioner. A child may not waive the right to have a support person present during an investigative procedure, including an interview: LEPRA Regs 21 and 29.

78 The role of a support person for a detained person who is a child is not merely to act as an observer, but to assist and support the child, observe whether the interview is being conducted properly and fairly and identify communication problems with the child: LEPRA Reg 30.

79 The custody manager is obliged to take appropriate steps to make sure that a child who is detained understands the caution, which must be given in the presence of a support person.

The first interview: 12 July 2012

80 Mr Steel contended on behalf of the accused that the first interview was improperly obtained within the meaning of s 139 of the Evidence Act and that I should exclude it in the exercise of my discretion under s 138. He submitted, in the alternative, that it should be excluded under s 138. Further, he contended that it should be excluded on the grounds of unfairness under s 90 of the Evidence Act.

81 As referred to above, a significant issue in the determination of this objection is whether the accused was, at the time she presented herself at Parramatta Police Station on 12 July 2012, a suspect.

82 Detective Fenwick gave evidence that at that time he was not focussing on the three girls and he was concentrating on the male protagonists. He said that the CCTV footage was in a small version and that figures shown in it were not readily discernible or identifiable. Nonetheless he agreed that individual shots could be blown up and printed off on A4 paper, as occurred during the interviews referred to above, to aid identification of persons present and to reveal actions recorded in greater detail. Detective Fenwick said that when the accused, HH and ZP presented on 12 July 2012 they were treated as witnesses because they were not, at that time, suspected of any criminal offence.

83 By 12 July 2012, the police had spoken to most of the main male protagonists of whom the principal offender, Brilliantes, had made a full confession. Brilliantes had not implicated any of the girls in the killing of Crowe and had not deposed to hearing, or being influenced to stab Crowe by, the statement attributed to one of them, "This guy, this guy".

84 Although I accept that the main focus of the attention of the investigation was the male protagonists, I do not accept that the accused was not, as at 12 July 2012, a suspect. Both independent eyewitnesses implicated the three girls, two of whom had been identified by Brilliantes by their first names in still photographs blown up from CCTV footage. The CCTV footage available to police at the time showed that the girl who had not been named, the accused, intervened by pointing out the deceased to the principal offender shortly before he stabbed the deceased. She was therefore implicated, not only in the affray, but also, potentially, in the murder, at least if it could be proved that she knew that Brilliantes had a knife at the time she pointed out the deceased to him.

85 Furthermore, Superintendent Redfern would not, in my view, have been in a better position to know the progress of the investigation than the officer-in-charge. The reports of the investigation broadcast by the television stations referred to above indicated that the girls were "wanted", that they were implicated, that the police were "still hunting" for them and that they would be "brought to justice".

86 As far as I am aware from the Crown's submissions and its case statement, the evidence to prove the Crown case against the accused derives from four sources:

(1) Statements made by persons who were present at the time, including independent witnesses who were at the bus stop or in the vicinity.

(2) CCTV footage taken by various cameras in Westfield Shopping Centre and at the interchange.

(3) Phone records that show calls between JV and the accused and JV and Brilliantes at relevant times.

(4) Admissions by the accused referred to above.

87 The first category had been substantially completed by 12 July 2012 since the independent eyewitnesses had given statements as had Roche and Thompson and Brilliantes and Godoy had been interviewed.

88 The significant CCTV footage was in the hands of the police, who had the capacity to enlarge stills to identify particular protagonists, as they had already done when interviewing Brilliantes and Godoy.

89 The evidence does not disclose what was known about the third category as at 12 July 2012. It appears that the police did not know that there had been several calls between JV and the accused since they did not have her mobile phone at that time. Police knew that JV had called Brilliantes and asked him to come to the interchange with other males for a fight. However, the police knew from eyewitnesses that at least one of the girls had been using her mobile phone to communicate with persons and had indicated her location shortly prior to the arrival of the four males at the bus stop.

90 In my view, the evidence to prove the Crown case against the accused was largely in the hands of the police prior to the time of her presentation at the station on the evening of 12 July 2012. I do not accept that its significance to her criminal culpability was lost on police. Indeed, the media release made it clear that the girls were wanted in the context where they can only have been wanted as suspects. The CCTV footage tended to show that the accused (being the only one of the three not identified by name by Brilliantes) was more culpable that the other two. By simple process of elimination the police must have known, when she presented, that she was the one most likely to be charged in connection with the murder. In my view, she was, in substance, a suspect, at least in relation to affray, if not murder, and the police were obliged to treat her as such.

Section 139: the circumstances in which failure to caution leads to a statement being taken to have been improperly obtained

91 The particular aspect of the accused's "right to silence" that arose when she presented herself at the Parramatta police station on 12 July 2012 was the right of a person suspected of, but not charged with, an offence not to have to answer any questions and the right not to have any adverse inference drawn from silence: X7 v Australian Crime Commission [2013] HCA 29 at [105] per Hayne and Bell JJ. Lord Mustill described the relevant immunity in R v Director of Serious Fraud Office; Ex parte Smith [1993] AC 1 at 30 as:

"a specific immunity, possessed by all persons under suspicion of criminal responsibility whilst being interviewed by police officers or others in similar positions of authority, from being compelled on pain of punishment to answer questions of any kind."

92 Section 139(1) applies if a person was under arrest for an offence at the time. The accused was not under arrest until 2 August 2012. However, s 139(5) deems a person to be under arrest in certain circumstances set out in s 139(5)(a), (b) and (c), each of which is relied upon by the accused.

93 The first alternative, (a), requires proof that the person is in the company of an investigating official for the purposes of being questioned and that the official believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning.

94 The accused was initially in the company of Detective Fenwick, who was an investigating official. In evidence before me he did not agree that on 12 July 2012 he believed that there was sufficient evidence to establish that the accused had committed an offence that was to be the subject of questioning. He agreed that he was aware of the provision of the Code of Practice that provides:

Where someone, either in your company or by themselves, attends a station voluntarily to help you with inquiries, consider the nature of your inquiries and the likelihood that the person will be arrested. Where this is a possibility, albeit remote, take the person to the custody manager.

95 The following exchange ensued in his cross-examination:

Q. Did you do that [comply with the passage of the Code set out]?

A. I didn't even consider it. I didn't see she was a suspect. I didn't have anything to suggest that she was.

Q. So you didn't consider that at all, whether any of the girls would be arrested?

A. That's correct.

96 I accept that it may be difficult after the event accurately to recall and articulate one's belief about dynamic matters. I did not gain the impression that Detective Fenwick was doing otherwise than trying to give truthful evidence. However, the evidence against the accused prior to the interview on 12 July 2012 was essentially the same as the present Crown case, absent the record of the telephone calls between her and JV and absent her admissions that she knew that Brilliantes had a knife. The admissions were principally relevant to the offence of murder and were not required for to prove the accused's involvement in the affray which was apparent from the CCTV footage.

97 Detective Fenwick was an experienced police officer. He was aware of the legal principles that apply to joint criminal enterprises. Although he did not see the broadcasts, he was told about the media release. He knew that Brilliantes had identified two out of the three girls, who had the same first names as the girls who presented with the accused on 12 July 2012. That he specifically asked Detective Marino to find out whether the accused knew that Brilliantes had a knife is a powerful indication that Detective Fenwick had in mind that she was already implicated in the affray and would, if she had such knowledge, be implicated in the murder. Notwithstanding his evidence to the contrary, I am satisfied that Detective Fenwick believed that there was sufficient evidence that the accused had at least committed the offence of affray about which she was to be questioned.

98 I am not, however, satisfied that Detective Marino believed that there was sufficient evidence that the accused had committed an offence about which she was to be questioned. He did not know that she was one of the three girls who was wanted. I accept that he did not have evidence before him to suggest that the accused was implicated in the offences of affray or murder, although, for the reasons set out above, there was such evidence and it was known to Detective Fenwick.

99 Accordingly, I am satisfied of s 139(5)(a) because I am satisfied that Detective Fenwick had formed the relevant belief.

100 Even had I not been satisfied that Detective Fenwick had the relevant belief, I consider that, had he considered the evidence then available to the police against the accused, he ought to have formed the relevant belief that the evidence was sufficient to establish that the accused had committed at least the offence of affray. This alternative finding does not fulfil the requirements of s 139(5)(a). Nonetheless if he had not formed the belief, but ought to have formed the belief, I would have nonetheless considered that the evidence was improperly obtained within the meaning of s 138(1) and would have excluded it for the same reasons as are set out below.

101 I am not satisfied that Detectives Fenwick or Marino would not have allowed the accused to leave the police station if she had wished to do so. She was, after all, only 15, lived with her mother and attended school. Accordingly I am not satisfied of s 139(5)(b).

102 The question of reasonable grounds for the purposes of s 139(5)(c) must be assessed by reference to the context, including the age of the accused. In my view when the accused was led from the downstairs reception area of the police station and told to wait in the office upstairs, she was given reasonable grounds for believing that she would not be permitted to leave if she wished to. Accordingly, s 139(5)(c) has been established.

103 The effect of my findings under s 139(5)(a) and (c) is that the accused is taken to have been under arrest for an offence at the time she was questioned. Detective Marino was empowered to arrest the accused when he questioned her (s 139(1)(b)) and Detective Marino did not caution the accused in the terms set out in s 139(1)(c) of the Evidence Act. Accordingly the evidence of her statements made in the interview is taken to have been obtained improperly under s 139(1) and the discretion conferred by s 138 is required to be considered.

104 Evidence of statements made during the first interview is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way it has been obtained. In making that assessment I am obliged to take into account matters I consider to be relevant as well as the matters listed in s 138(3).

The probative value of the evidence and its importance in the proceedings: s 138(3)(a) and (b) of the Evidence Act

105 The Crown identified two facts that it will seek to prove by the evidence to which objection has been taken:

(1) The accused knew that Brilliantes had a knife before or at the time she tapped him on the shoulder and pointed at the accused.

(2) When the accused pointed to the deceased she foresaw the possibility that Brilliantes might kill Crowe or inflict grievous bodily harm on him.

106 In both interviews the accused admitted that she heard Thompson say, "He's got a knife", from which her knowledge of that fact can be inferred. If the admissions are excluded, the Crown will have to prove that inference, if at all, by circumstantial evidence. I accept the Crown's submissions that the probative value of the admissions is high and that they are significant to the count of murder on the indictment.

107 The accused's admissions sought to be relied upon by the Crown are, in my view, likely to be both reliable and cogent since they are statements against interest that were made in the context of the accused's telling her "side of the story".

108 In Bunning v Cross [1978] HCA 22; 141 CLR 54 Stephen and Aickin JJ addressed the relationship between cogency and illegality at 79:

To treat cogency of evidence as a factor favouring admission, where the illegality in obtaining it has been either deliberate or reckless, may serve to foster the quite erroneous view that if such evidence be but damning enough that will of itself suffice to atone for the illegality involved in procuring it.

109 Under s 138(3)(a) and (b) the probative value and importance of such evidence are mandatory relevant considerations in the weighing exercise to be undertaken in s 138(1). The countervailing factor of the nature of the illegality referred to in the passage from Bunning v Cross set out above is also relevant to the weighing exercise under s 138(1): s 138(3)(d) and (e) which is considered below.

The nature of the relevant offence: s 138(3)(c) of the Evidence Act

110 The relevant offence to which the admissions are germane is murder. It is a very serious offence. There is a public interest in the perpetrators of crimes, particularly serious crimes, being charged, prosecuted and, if found guilty, convicted and punished. In R v Dalley [2002] NSWCCA 284; 132 A Crim R 169, Spigelman CJ, Blanch J agreeing, said by reference to s 138(3)(c) at [3]:

The more serious the offence, the more likely it is that the public interest requires the admission of the evidence.

The gravity of the impropriety or contravention and whether it was deliberate or reckless: s 138(3)(d) and (e) of the Evidence Act

111 I respectfully adopt the following passages from R v Phung and Huynh [2001] NSWSC 115 per Wood CJ at CL:

34 It may be accepted that the purpose of the legislative regime, that now applies to the interview of children, and particularly those in custody following arrest, is to protect them from any disadvantage inherent in their age, as well as to protect them from any form of police impropriety. As to the former, what is required is compliance with the procedure laid down so as to prevent the young or vulnerable accused from being overawed by the occasion of being interviewed, at a police station, by detectives who are likely to be considerably older and more experienced than they are.

. . .

38 It is important that police officers appreciate that the regime now established is designed to secure ethical and fair investigations, as well as the protection of individual rights, of some significance, which attach in particular to children. Those rights, obviously, are of great importance when a child is facing a charge as serious as murder or armed robbery.

39 The provisions need to be faithfully implemented and not merely given lip service or imperfectly observed. The consequences of any failure to give proper regard to them is to risk the exclusion of any ERISP, or the product of an investigative procedure, which is undertaken in circumstances where there has not been proper compliance with the law.

112 The accused was not cautioned prior to, or during, questioning. She did not know that she did not have to say anything or take part in the interview. She was not taken to the custody manager who was obliged, since she was a vulnerable person, to assist her to exercise her legal rights. Her rights under Part 9 of LEPRA were neither read out, nor explained to her. She was not advised of the free Legal Aid Youth Hotline service. Her mother, although regarded by police as a "support person", did not appreciate what her role was and was not taken through the "Role of a Support Person" document. She was, in any event, not capable of fulfilling the role in any substantial way because of the limitations of her English vocabulary.

113 I regard these improprieties as very grave. The accused's right to remain silent and not be compelled to answer questions that might tend to incriminate her in the commission of the crime of murder has been described as a "fundamental . . . bulwark of liberty", which is not merely a rule of evidence but a basic and substantive common law right: Reid v Howard (1995) 184 CLR 1 at 11 per Toohey, Gaudron, McHugh and Gummow JJ. In Petty v The Queen (1991) 173 CLR 95 at 99 the plurality (Mason CJ, Deane, Toohey and McHugh JJ) described the following principle as a "fundamental rule of the common law":

A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played.

114 Although the accused was, relevantly, a suspect when she presented herself at the Parramatta police station on 12 July 2012, she was not informed of her right to silence in circumstances where she believed that she was obliged to answer the questions put to her by Detective Marino.

115 The question whether the impropriety was deliberate, reckless or merely inadvertent is more difficult to answer since such a determination cannot be made without assessing the reason Detective Fenwick directed that the accused be questioned by Detective Marino about her knowledge of the knife. I am satisfied, by the relevance and materiality of her knowledge of the knife to the offence of murder as opposed to affray and the difficulty of proving her knowledge without an admission, that the direction was made for a deliberate investigative and forensic reason: namely to obtain an admission so that the the Crown could prove a case against her for murder.

116 Her admissions on 12 July 2012, on which the Crown proposes to rely, were, accordingly, not voluntary in the sense that she did not make them "in the exercise of a free choice to speak or be silent": The King v Lee [1950] HCA 25; 82 CLR 133 at 149 per Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ. I reject the Crown's submissions that were based on the premiss that not only did the accused want her version of events to be accepted by detectives, but also that she had an awareness of her rights and a capacity to act on them. The accused's situation was wholly different from that of Sophear Em (R v Em [2003] NSWCCA 374; [2007] HCA 46; 232 CLR 67): all that she had in common with Em was that they both wanted to tell their story to police and both made admissions in the process. Unlike the accused, Em was found to be aware of his rights and be able to act on them.

117 Had the accused been advised of her legal rights, then it is, in my view, highly unlikely that she would have answered any questions at all. Her avowed wish to "tell her story" was borne of her naivete and her ignorance both of her right to silence and the potential consequences of self-incrimination. There is no reason to suppose that she would not have accepted the advice that would almost inevitably have been given to her had she received legal advice: namely, to refuse to be interviewed.

118 To adapt the language of the plurality in The King v Lee at 159 per Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ, a 15-year-old girl, whose command of English is not sophisticated and who is suspected of a serious criminal offence, may be practically helpless in the hands of an over-zealous police officer whose position of superiority is so great and so overpowering that admissions may be made which, if the girl knew her legal rights, would not be made.

The weighing exercise under s 138(1) of the Evidence Act

119 I am not satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which these admissions have been obtained. Accordingly, s 138(1) requires that it not be admitted.

Section 13 of the Children (Criminal Proceedings) Act

120 The accused also relied on this section which provides that an admission made by a child is not be be admitted unless a person responsible for the child was present. This section was complied with, although LE did not appreciate the significance of her role as a support person and was not able to protect her daughter's rights, since she herself was insufficiently aware of them, and insufficiently acquainted with the terms in which to express them, to be of real assistance in their assertion.

121 I do not consider that s 13 provides independent basis for the exclusion of the admissions made in the first interview. The failure to caution the accused or provide her with legal advice is of substantially greater significance than the choice of a support person.

122 Furthermore, I am not satisfied that LE was an inappropriate support person, or that the accused's sisters would have been better. Many supportive, articulate adults are not conversant with the right to silence and when it applies. For the reasons given above, this is the relevant impropriety in obtaining the evidence.

Section 90 of the Evidence Act

123 The test for unfairness under s 90 requires a different assessment. The provision is only to be considered after other bases for exclusion have been considered. The onus is on the accused to establish that it would be unfair to her to use the evidence "having regard to the circumstances in which the admission was made". In R v Swaffield [1998] HCA 1; 192 CLR 159 at [69] the plurality (Toohey,Gummow and Gaudron JJ) referred to:

". . . an overall discretion which might take account of all the circumstances of the case to determine whether the admission of the evidence or the obtaining of a conviction on the basis of the evidence is bought at a price which is unacceptable, having regard to contemporary community standards."

124 In my view, the circumstances referred to above show that the accused was effectively deprived of the right to choose whether to speak or not, because she was ignorant of her right to silence and she was neither cautioned, nor informed, in language that she could understand, or at all, what her rights were.

125 Although the admissions the accused made may well be reliable I consider the price of their admission to be too high to be worth paying since they were obtained only by failing to comply with the laws and procedures referred to above and disregarding the rights of a 15-year-old girl who was unable to look after her own interests. In the present case the ends, in my view, fall far short of justifying the means.

126 I am persuaded that, having regard to the circumstances in which the admissions were made, it would be unfair to the accused to use the evidence. Had I not been persuaded that s 138 prohibited their admission I would have exercised my discretion under s 90 to reject the admissions made by the accused in the first interview.

The second interview: 2 August 2012

127 In substance, what occurred in the second interview was that Detective Gibson acted as if the accused had not exercised her right to silence. His failure to disclose either to Sergeant Oakley or to Senior Constable Lawler the accused's instructions that Ms Hopgood had unequivocally communicated to him in the strongest possible terms is telling. I am satisfied that the accused believed, on the basis of the conduct of Detective Gibson and Senior Constable Lawler, that she was obliged to participate in the interview, although she had expressly accepted Ms Hopgood's advice that she ought not.

128 Detective Gibson's cavalier attitude to the rights of the accused appears from the following exchange in cross-examination on the voir dire:

Q. Were you concerned when you saw that letter [from Ms Hopgood confirming the telephone conversation] the next day?

A. No, I wasn't concerned, no.

Q. Why weren't you concerned?

A. Well, from my as I said in the past, whenever I've spoken to Juvenile Legal Aid, they've always said straightaway they don't want to be interviewed. I always give the opportunity for anyone to be interviewed and it's ultimately up to them if they want to. I ask her myself, in the presence of her mother, if she'd like to be interviewed to provide a version of events and to provide and so I could give her the exact, precise allegation that she's being interviewed about or in custody for, and that's from there.

129 I regard Detective Gibson's characterisation of the proposed interview of the accused as providing an "opportunity" to the accused to provide a version of events as inapposite, if not disingenuous. He knew that the accused's participation in an interview would provide the police with an opportunity to prove the Crown case out of the accused's own mouth. He also knew that the accused had accepted legal advice not to answer questions or participate in an interview.

The probative value of the evidence and its importance in the proceedings: s 138(3)(a) and (b) of the Evidence Act

130 For the reasons given in respect of the admissions made in the first interview, the admissions made in the second interview are highly probative and would, if admitted, be important in the proceedings.

The nature of the relevant offence: s 138(3)(c) of the Evidence Act

131 The same considerations apply as with respect to the first interview.

The gravity of the impropriety or contravention and whether it was deliberate or reckless: s 138(3)(d) and (e) of the Evidence Act

132 It is improper for police investigating the commission of a crime to persist in questioning a suspect after he or she has indicated an unwillingness to answer any more questions: R v Ireland [1970] HCA 21; 126 CLR 321 at 327 per Barwick CJ.

133 In R v Plevac (1995) 84 A Crim R 570, at 579-581, the Court of Criminal Appeal outlined the principles that apply when questioning a suspect. The first question is whether the suspect is willing to answer questions. If the suspect is willing to answer questions, the questioning must be fair and must not amount to undue insistence or pressure. The Court said:

"Police should not persist with such an interrogation after the suspect has indicated that he or she does not wish to answer further questions... although merely because a suspect says he does not wish to answer, or will not answer, any further questions does not render inadmissible answers to further questions which the suspect does answer provided the questions are fair and proper and the answers are otherwise admissible."

134 The accused declined, through Ms Hopgood, to participate in an interview and also declined to have her refusal to answer questions filmed. The unequivocal communication of her intention was disregarded. She was led to the interviewing room in utter derogation of her right to silence.

135 I regard the contravention of the accused's rights by Detective Gibson as very grave.

The weighing exercise under s 138(1) of the Evidence Act

136 I am not satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which these admissions have been obtained. Accordingly, s 138(1) requires that the admissions not be admitted.

Section 90 of the Evidence Act

137 For substantially the same reasons as given in respect of the first interview, I am persuaded that, having regard to the circumstances in which the admissions were made, it would be unfair to the accused to use the evidence obtained in the second interveiw. Had I not been persuaded that s 138 prohibited its admission I would have exercised my discretion under s 90 to reject the record of the second interview.

Summary

138 For the reasons given above, I exclude the interview with the accused on 12 July 2012 and the ERISP conducted with the accused on 2 August 2012.

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Decision last updated: 18 November 2013