The interview with the accused on 12 July 2012
26Just 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.
27They 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."
28Detective 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."
29The 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.
30The 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.
31I 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.
32The 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.
33Detective 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.
34Senior 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.
35When 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."
36The 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.
37Detective 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.
38The 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".
39At 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."
40The 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.
41On 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.
42The 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.
43The 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.
44While 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."
45Without 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.
46Detective 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."
47Police 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.
48The 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.
49Afterwards 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.
50Ms 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."
51At 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.
52Ms 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.
53Ms 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.
54After 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.
55Where 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.
56Detective Gibson did not see the letter from Ms Hopgood until he checked his pigeonhole the following day.
57Detective 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.
58Most 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.
59At 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.
60On 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".
61The 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."
62I 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.
63I 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.
64I 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.
65The 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".
66Furthermore, 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.
67As 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".
68I 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.
69The 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.
70At 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.