R v Mercury

Does s 13 of the Children (Criminal Proceedings) Act 1987 (NSW) apply?

1. The first question to determine is whether the primary basis for the accused's objection - s 13 of the Children (Criminal Proceedings) Act - applies in respect of the admissibility of admissions made by a child before the legislation was enacted. Counsel for the accused contended that it does and the Crown accepted that to be the case. I agree with them for the following reasons.
2. Prior to the insertion of s 81C in the Child Welfare Act 1939 (NSW) by the Child Welfare (Amendment) Act 1977 (NSW) there was no legislative provision concerned with the admissibility of confessions (etc) made by children. Prior to then the subject was dealt with in the New South Wales Police, Rules and Instructions, (1957). Instruction "No 9" was concerned with "Children and Young Persons - Neglected and Uncontrollable, Juvenile Offenders and Child Protection", in which paragraph 16 was concerned with interviewing juveniles. At the time of the interview in the present case (29 April 1971), it required that if at all possible, police should avoid interviewing juveniles other than at their homes and that whenever a parent or guardian requests permission to be present when a juvenile is to be interviewed or is to make a statement, such request should be acceded to unless there are good reasons to the contrary. It also provided that in any case, care should be exercised to see that the interview or the making of the statement takes place only in the presence of the senior member of the Police Force available who should remain present until the juvenile has left the station.
3. General instructions about questioning of suspects were contained in Instruction "No 16" (paragraphs 11 to 16) but nothing was identified by counsel that bears upon the issues raised in the present case.
4. Section 81C of the Child Welfare Act took effect from 1 July 1977. It was in the following terms: 81C. Certain statements, etc., inadmissible Subject to section 81B, where a child or young person is - (a) brought before a court as a neglected child or an uncontrollable child or young person; or (b) is charged with an offence, the court, in hearing or determining the matter or charge, shall not admit in evidence or act upon any statement, confession, admission or information made or given by the child or young person at a police station unless there was present throughout the period of time during which the statement, confession, admission or information was made or given - (c) one of his parents; (d) a person aged 18 years or upwards who has his guardianship; or (e) with the consent of one of the persons referred to in paragraph (c) or (d) - a person aged 18 years or upwards who is not - (i) one of those persons; or (ii) a member of the police force.
5. Relevant to the intention of the legislature is the fact that s 146A was inserted in the principal Act at the same time. Its effect was that when a juvenile was brought into a police station, inter alia to be questioned about an offence, the officer in charge of the station was required to notify, or cause to be notified, a parent or guardian. It was an offence not to do so unless the officer had used all reasonable diligence in attempting to comply with the requirement, or had a reasonable excuse for failing to comply.
6. Section 81C was soon amended but there was appellate consideration of its original form in R v Aquilina [1978] 1 NSWLR 358. In that case the four appellants were aged 16 or 17 at the time they were apprehended and taken to a police station in October 1976. Three of them denied involvement in a rape that had occurred a short time before, but at trial in July-August 1977 they admitted the intercourse but claimed it was consensual. Street CJ observed (at 360B) that their denials at the police station "could well have been of significance in the mind of the jury in determining the question of their guilt". The fourth appellant admitted in a recorded interview that he had engaged in intercourse with the complainant.
7. It was the original form of s 81C that was in force at the time of trial. Two issues arose on the appeal: first whether "the court hearing and determining the matter" was confined to the Children's Court or included the Supreme Court and, if so, whether it applied to admissions obtained prior to the date the section came into force.
8. Street CJ (with whom Nagle and Lee JJ agreed) described it as "absurd" that evidence obtained in a perfectly regular and proper fashion under the law that applied at the time was subsequently rendered inadmissible. He noted that the trial judge, Begg J, sought to minimise "the absurdity inherent in the form of the legislation" by reading down the reference to "court", holding that it did not include the Supreme Court. However, the Chief Justice noted that the same question came before another judge a few weeks later: R v Close (Supreme Court of NSW, Carmichael J, 20 October 1977, unrep). In that case the judge held that the provision did apply to proceedings in the Supreme Court. Street CJ agreed, saying (at 362A) that the particular reason that led him to that conclusion was that by the insertion of s 81C and s 146A: "[T]he legislative intention … was to provide protection for children and young persons when being questioned at police stations."
9. Street CJ rejected a contention that the terms of s 81C should not apply so as to render statements obtained prior to the date when the section came into force inadmissible. He said (at 362G): "The section enacts a procedural limitation upon the admissibility of evidence. Its requirements became operative on 1st July, 1977, and, so long as the section stood (that is to say until its repeal on 14th November, 1977), it applied clearly and expressly to render inadmissible evidentiary material not fulfilling the statutory requirements, no matter when that evidentiary material was obtained. The argument of absurdity which can be advanced in opposition to this conclusion, great though the absurdity may well have been, cannot prevail over the clear terms of the section."
10. In what Street CJ described (at 361G) as a correction of "the earlier mistake", the Child Welfare (Further Amendment) Act 1977 (NSW) came into force upon receiving assent on 14 November 1977. A new s 81C was substituted and s 146A was omitted. The new s 81C provided in sub-s (3) for the admissibility of a confession (etc) to be determined under the law that applied at the time the confession was made and also for the court to have a discretion as to admission notwithstanding a failure of compliance. It also included lawyers in the list of persons who should be present during an interview (etc). 81C Admissibility of certain statements, etc … (3) A person acting judicially in any proceedings relating to a child or young person, when determining, on or after the date of assent to the Child Welfare (Further Amendment) Act, 1977, the admissibility in evidence of any statement, confession, admission or information made or given in a police station by the child or young person - (a) before that date, shall apply the law relating to the admissibility of the statement, confession, admission or information that was in force when it was made or given; or (b) on or after that date, shall not admit the statement, confession, admission or information in evidence unless there was present at the place in the police station where, and throughout the period of time during which, it was made or given - (i) one of his parents; (ii) a person aged 18 years or upwards who has his guardianship; (iii) in the case of a child or young person, with the consent of a person referred to in subparagraph (i) or (ii) or, in the case of a young person, with his consent - a person aged 18 years or upwards who is neither a person referred to in either of those subparagraphs nor a member of the police force; or (iv) a duly qualified legal practitioner of his own choosing, or unless the person acting judicially is satisfied that there was a proper and sufficient reason for none of the persons referred to in subparagraph (i), (ii), (iii) or (iv) to have been present at the place in the police station where the statement, confession, admission or information was made or given throughout the period of time during which it was made or given and the person so acting considers that, in the particular circumstances of the case, the statement, confession, admission or information should be admitted in evidence in those proceedings.
11. The Crown referred to Rodway v The Queen (1990) 169 CLR 517; [1990] HCA 19 which was concerned with the presumption against the retrospective operation of a statute. The Criminal Code (Tas) required that there be some corroboration of the complainant in sexual cases before there could be a conviction but the section was repealed and replaced with a provision that there was no longer a rule or practice that a judge must warn a jury about convicting in the absence of corroboration. Rodway was charged before but tried after the relevant amendment. He contended on appeal that the amendment could not apply to him but the High Court disagreed. It was said in a unanimous judgment (at 518 and 521): "The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation. It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events. A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance." "But, ordinarily an amendment to the practice or procedure of a court, including the admissibility of evidence and the effect to be given to evidence, will not operate retrospectively so as to impair any existing right. It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption against retrospectivity. A person who commits a crime does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at the time of trial."
12. R v Haas (1997) 90 A Crim R 149 was cited as an analogous example. It concerned a legislative amendment requiring videotaping as a precondition to the admissibility of police interviews which came into effect after Mr Haas was interviewed but before his trial. Zeeman J, the trial judge, referred to statutes not being given retrospective operation so as to affect existing rights and obligations (unless the statute provides to the contrary), but referred to what the High Court unanimously said in Rodway v The Queen in relation to statutes dealing with procedure being an exception to this rule. He held that the amendment did not impair any right existing at the time it came into force and so it applied to his determination of the question of admissibility.
13. R v Glasby [2000] NSWCCA 83; 115 A Crim R 465 was cited as another example of a provision applying in respect of events occurring prior to a legislative enactment. Mrs Glasby objected to being compelled to give evidence against her husband in a murder trial. The evidence concerned events prior to, but the trial was held following, the enactment of the Evidence Act in 1995. The trial judge held that she was compellable under s 18 but on appeal it was contended that the common law doctrines as to the non-compellability of spouses and the privilege against the compulsory disclosure of marital communications should continue to apply. The grounds raising these contentions were rejected.
14. The Crown submitted, in effect, that Rodway v The Queen as well as R v Haas and R v Glasby confirm that the approach taken in R v Aquilina was correct. I accept that is so.
15. In 1987, the Child Welfare Act was repealed and replaced by a number of statutes including the Children (Criminal Proceedings) Act, s 13 of which is concerned with that which was previously the subject of s 81C. In its current version, s 13 provides: 13 Admissibility of certain statements etc (1) Any statement, confession, admission or information made or given to a member of the police force by a child who is a party to criminal proceedings shall not be admitted in evidence in those proceedings unless: (a) there was present at the place where, and throughout the period of time during which, it was made or given: (i) a person responsible for the child, (ii) an adult (other than a member of the police force) who was present with the consent of the person responsible for the child, (iii) in the case of a child who is of or above the age of 14 years - an adult (other than a member of the police force) who was present with the consent of the child, or (iv) an Australian legal practitioner of the child's own choosing, or (b) the person acting judicially in those proceedings: (i) is satisfied that there was proper and sufficient reason for the absence of such an adult from the place where, or throughout the period of time during which, the statement, confession, admission or information was made or given, and (ii) considers that, in the particular circumstances of the case, the statement, confession, admission or information should be admitted in evidence in those proceedings. (2) In this section: (a) a reference to a person acting judicially includes a reference to a person making a determination as to the admissibility of evidence in committal proceedings, and (b) a reference to criminal proceedings is a reference to any criminal proceedings in which a person is alleged to have committed an offence while a child or which arise out of any other criminal proceedings in which a person is alleged to have committed an offence while a child, and (c) a reference to a person responsible for a child does not include a member of the police force (unless he or she has parental responsibility for the child). (3) Nothing in this section limits or affects the admissibility in evidence in any criminal proceedings against a child of any statement or information that the child is required to make or give by virtue of the provisions of any Act or law.
16. It can be seen that s 13(1) is in very similar terms to the former (amended) s 81C. The differences include that the provision no longer applies only to a confession (etc) made "in a police station". The substance, however, remains the same and that includes the two matters that must be established to overcome the default position of inadmissibility if there has been non-compliance with the requirements of s 13(1)(a).
17. The Crown Prosecutor addressed the possibility that the term "a child who is a party to criminal proceedings" which appears early in sub-s (1) might be seen to indicate that the section only applies when the person before the court is a child. He submitted that such a literal construction would lead to the absurd result that the provision would not apply as soon as the person attained the age of 18. He submitted that this would be contrary to the purpose of the provision (as to which I shall return). He pointed to the fact that no appellate court has suggested the provision does not apply when the person is an adult by the time of trial. Moreover, s 13(2)(b) defines what "criminal proceedings" are for the purpose of the section: "proceedings in which a person is alleged to have committed an offence while a child" (as opposed to proceedings in which the defendant is a child).
18. Counsel for the accused accepted the Crown's point in this respect, as I do. He referred to some of the cases in which the section is discussed, which were concerned with admissions when the person was under the age of 18, but 18 or older by the time of trial: R v H (1996) 85 A Crim R 481; R v Dunn (Court of Criminal Appeal (NSW), 15 April 1992, unrep); R v Phung and Huynh [2001] NSWSC 115; R v Huynh and Phung [2001] NSWSC 357; R v T [2001] NSWCCA 210; R v ME and LT (Supreme Court (NSW), Dowd J, 3 October 2002, unrep); and R v Duncan and Perre [2004] NSWCCA 431 (Duncan was 17 and 19 respectively). The relevance of s 13 to the admissibility of evidence of what the accused told the police was not questioned in any of these cases.
19. I am grateful for the contributions of both counsel in relation to the foregoing analysis. It persuades me that the provisions of s 13 of the Children (Criminal Proceedings) Act apply currently to the question of the admissibility of the record of interview between the police and the accused of 29 April 1971.

The rationale for s 13 of the Children (Criminal Proceedings) Act

1. In order to understand the rationale for s 13 of the Children (Criminal Proceedings) Act, it is useful to look at the prior attitude of the criminal law to the admissibility of evidence of confessions (etc) made by children and young persons suspected of criminal offences.
2. The concern of the criminal law with police obtaining incriminating statements from a juvenile suspected of having committed a crime did not commence with the insertion of s 81C in the Child Welfare Act in 1977. In R v Pratt; R v Baker; R v White (1965) 83 WN (Pt 1) (NSW) 358 and Dixon v McCarthy [1975] 1 NSWLR 617, the youth of suspected offenders, their position of relative inferiority in relation to the interviewing police officers, and the absence of any parent or other adult at the time of interview were important factors in Macfarlan J and Yeldham J respectively holding that the evidence of the statements made by the suspected offenders should be (or should have been) ruled inadmissible.
3. For the reasons previously stated, cases concerned with s 81C of the Child Welfare Act are particularly pertinent.
4. Reference has been made earlier to Street CJ having said in 1978 in R v Aquilina that "the legislative intention … expressed in the Child Welfare (Amendment) Act, 1977 was to provide protection for children and young persons when being questioned at police stations".
5. In R v Warren [1982] 2 NSWLR 360, Lee J (Street CJ and Moffitt P agreeing) spoke of the rationale for the insertion of s 81C into the Child Welfare Act as follows (at 367): "The section is not intended to control interrogation by the police of persons who are under the age of eighteen years in the sense of ensuring that before any interrogation takes place there shall be a person present as required by sub-s (3). All that the section does is to prevent admission into evidence of those particular statements (using the word generally to include statements, confessions, admissions, or particular information) which are not made in the presence of one of the persons designated by sub-s (3). … No doubt the basis upon which the section was introduced into the Act was that, because a person under eighteen years of age could well be or feel to be at a considerable disadvantage alone in a police station being questioned by mature men, it was desirable that an adult person be present, but the terms in which the section is expressed are clear and they show that the legislature is only intending to bring about the exclusion from evidence of those statements (using the word in the general sense) of an accused which are not made in the presence of an adult as the section requires."
6. In R v Williams (Supreme Court (NSW), Roden J, 9 August 1982, unrep) it was said (at 7-8) of the "apparent purpose and object of the provision" in s 81C: "The section is concerned, I believe, with specifying conditions for the admissibility of such evidence rather than laying down a procedure or code of conduct for police officers interviewing children or young persons in police stations. This general view of the object of the section accords, I believe, with that expressed by Lee J in the Court of Criminal Appeal in Reg v Warren (unreported) 15th July 1982. It is based, I believe, upon a proposition that children and young persons require special protection, and by that I mean protection from themselves rather than from any impropriety on the part of the police. The latter, of course, is already catered for by the general discretion which the Court enjoys. The Child Welfare Act provision, as I understand it, recognises what could be described as a rebuttable presumption that within the context of an interview by adult police officers in a police station a child or young person would be likely to be overawed and to be and feel at a considerable disadvantage."
7. Some observations were made about the purpose in having an adult present during a police interview with a young person in R v Dunn (Court of Criminal Appeal (NSW), 15 April 1992, unrep). It was argued that there was an obligation upon a chaplain who was present during the interview of a 17-year old to assist her by making himself familiar with the nature of the proposed charges against her and all the relevant facts and circumstances, so that he could provide advice to her during the interview. The chaplain gave evidence on the voir dire that he did not consider such to be his role (at 6).
8. Carruthers J found that the chaplain had performed all the necessary functions required of him so far as his presence during the record of interview was concerned. He said (at 6): "It goes without saying of course, that the presence of an adult in these circumstances is required to ensure that there is no unfairness or unconscionable conduct in the interview so far as the child is concerned."
9. In R v Cotton (1990) 19 NSWLR 593, after referring to what was said by Lee J in R v Warren and by Roden J in R v Williams, Hunt J (as his Honour then was) observed (at 595E): "In my view, the similarity of s 81C to the provision with which I am now concerned [namely, s 13 of the Children (Criminal Proceedings) Act] dictates that the same legislative purpose should be perceived …"
10. In R v H (1996) 85 A Crim R 481 at 485, Hidden J referred to the passage quoted above from the judgment of Carruthers J in R v Dunn and said he did not consider that it conflicted with "the more expansive view" of Lee J in R v Warren and of Roden J in R v Williams (set out in the extracts I have quoted above).
11. Hidden J also had the following to say (at 486) about the role that might be played by an adult or legal practitioner who is present during a police interview of a child: "The primary aim of such a provision is to protect children from the disadvantaged position inherent in their age, quite apart from any impropriety on the part of police. That protective purpose can be met only by an adult who is free, not only to protest against perceived unfairness, but also to advise the child of his or her rights. As the occasion requires, this advice might be a reminder of the right to silence, or an admonition against further participation in the interview in the absence of legal advice. No-one could suggest that a barrister or solicitor, whose presence is envisaged by s 13(1)(a)(iv), could be restrained from tendering advice. Nor should any other adult. Further, within appropriate limits, the adult might assist a timid or inarticulate child to frame his or her answer to the allegation. For example, the child might be reminded of circumstances within the knowledge of both the child and the adult which bear on the matter."
12. Wood CJ at CL succinctly summarised the principle he derived from R v Warren, R v Williams, R v Cotton and R v Dunn in R v Phung and Huynh [2001] NSWSC 115 at [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."
13. Wood CJ at CL also spoke (at [36]) of the role of the support person during the police interview of a child: "The role of the support person is to act as a check upon possible unfair or oppressive behaviour; to assist a child, particularly one who is timid, inarticulate, immature, or inexperienced in matters of law enforcement, who appears to be out of his or her depth, or in need of advice; and also to provide the comfort that accompanies knowledge that there is an independent person present during the interview. That role cannot be satisfactorily fulfilled if the support person is himself or herself immature, inexperienced, unfamiliar with the English language, or otherwise unsuitable for the task expected, that is, to intervene if any situation of apparent unfairness or oppression arises, and to give appropriate advice if it appears the child needs assistance in understanding his or her rights."
14. While in that case Wood CJ at CL was sitting at first instance, his observations were adopted by the Court of Criminal Appeal in R v T [2001] NSWCCA 210; 122 A Crim R 206 at [59] and in R v Duncan and Perre [2004] NSWCCA 431 at [259].

Evidence concerning the accused

1. There was no real dispute about the evidence concerning the accused. In the main it comprised contemporaneous records and reports from 1970-1971 derived from the accused's interaction with the juvenile justice system. I hasten to add that any criminal behaviour was of a relative minor kind (e.g. petty theft) and that what seemed to be more concerning was the accused's frequent absconding from homes and from detention facilities.
2. In addition to the historical records, a report by Dr Anthony Samuels, consultant psychiatrist, dated 10 October 2017 and a report by Dr Stephen Allnutt, forensic psychiatrist, dated 5 February 2019 were tendered. Both doctors were solely reliant upon a review of the documentary material, neither having had the opportunity to interview the accused.

Evidence derived from historical records

1. The accused was aged 17 years and almost 3 months at the time of the recorded interview with police on 29 April 1971. He was aged 15, almost 16, at the time of the disappearance of the little girl on 12 January 1970.
2. He was born in England and came to Australia with his father and stepmother in March 1968 (aged 14). Initially the family lived in Sydney but they moved to Melbourne a year later.
3. The accused ran away from home in April 1969. He was apprehended after stealing some luggage with the stated intention of stowing away on a boat in order to return to England. He was found by the Melbourne Children's Court "to be a child in need of care and protection for that he is likely to lapse [into a] career of crime" and committed to the care of the Victorian Social Welfare Branch by the Melbourne Children's Court. [1] In an interview with a child welfare worker at about this time he spoke of not getting on with his stepmother. He said that being in a Youth Training Centre was better than being at home. [2]
4. In August 1969 the accused was released and went home to live with his parents. Three days later he ran away but was picked up in Adelaide and returned to a youth hostel in Melbourne. [3]
5. On 8 January 1970 the accused absconded from the Sunshine Hostel, Victoria. He was picked up in Western Australia on 9 February 1970 and soon returned to a juvenile detention facility in Victoria. [4] The abduction of the little girl at Fairy Meadow occurred during this period, on 12 January 1970.
6. On 3 April 1970 the accused again absconded. He was apprehended about a week later in Brisbane for loitering and was there admitted to a juvenile Training Centre. On 30 April 1970 he was admitted to a psychiatric ward at Royal Brisbane Hospital after making an apparent suicide attempt. He was investigated for having experienced "peculiar turns". He complained that for the past 10 days he had nightmares in which he was going to kill people. There were auditory hallucinations; he was hearing voices; he experienced blackouts, feelings of dizziness, crying episodes and thoughts of hanging himself. [5]
7. During the course of this admission there were various assessments made including that the accused was of "dull average intelligence". A Dr Hamilton considered that the accused was "definitely not a schizophrenic and that he should be transferred to Melbourne". [6]
8. The accused was returned to a juvenile detention facility in Victoria on 6 May 1970. Two days later there was an apparent suicide attempt. A psychiatrist carried out a "screening interview" and noted a history of recent dizzy spells; a perception of feeling different from the world around him; and his mind telling him to either kill himself or kill someone. The doctor made a provisional diagnosis of "attention seeking hysterical behaviour: introvert personality". [7]
9. On 11 May 1970 there was an incident in which the accused was found to have locked himself in a toilet. When an officer managed to open the door the accused threatened to hit him with a toilet brush he was holding. He was disarmed and placed in an isolation room. He started to cry and said, "I hope you drop dead". [8] Medication was prescribed and improvement was noted over the ensuing days. [9]
10. The accused was assessed by a psychologist on 13 May 1970. The report included that "it is probable [he] is of average intelligence". He told the psychologist that his recent suicide attempt was merely an act of aggression which he assumed would enable him to "get out of the place"; he did not wish to die. The psychologist formed a general impression "of a very depressed angry young man who is likely to attempt to abscond at any possible chance and to attempt another suicide gesture". [10]
11. A psychiatrist made an assessment on 15 May 1970. He recorded: "This lad is an immature attention seeking 16 year old whose core problem is centred on his relationship with his parents, particularly his step-mother and his repeated absconding from home is directly related to tensions in that situation". The doctor's "final diagnosis" was "Immature impulsive personality: exogenously depressed at present and utilizing histrionic behaviour". [11]
12. There was an apparent improvement in the accused's condition and behaviour over the next two months. On 9 July 1970 the psychiatrist recommended that he be released home (although he envisaged there would be further problems). [12]
13. The next record is of the accused being admitted to the Royal Brisbane Hospital on 3 November 1970 with symptoms of withdrawal from amphetamine use. He was said to have been hearing voices which were trying to get him to kill himself because he was worthless. The accused was discharged on 27 November 1970. The discharge summary includes a diagnosis of "amphetamine withdrawal" and a prognosis of "poor". [13] In a letter dated 29 April 1971, the hospital's psychiatry supervisor wrote that "in retrospect, it would appear that his first admission [presumably a reference to the admission on 30 April 1970] was precipitated by an episode of amphetamine psychosis - it is easy to be wise after the event". [14]
14. The next contemporaneous record indicates that the accused was arrested at Central Railway Station in Sydney and charged with larceny offences on 19 April 1971. [15] In a letter dated 22 April 1971, the manager of the Metropolitan Boys' Shelter included that early that day the accused had attempted to strangle himself with his pyjama cord around his neck. The manager wrote, "The lad states he does not want to live, he has nothing to live for, he also states he ran away from a Psychiatric Centre in Queensland, where he was receiving treatment for drug taking". [16]
15. The accused was interviewed by Detective Sergeant Parrington and Detective Constable First Class Findlay at the Metropolitan Boys' Shelter on 29 April 1971 (the record of interview in issue). The "walk through" interview occurred on 3 May 1971.
16. Outbursts of behaviour occurred on 10 and 11 May 1971. In the first, the accused attacked a wall with a stool and then flung chairs around the dining room. In the latter he threw himself on the verandah and said, "I did not want to kill that officer in the blue shirt … I don't know why I did it". He had to be convinced that the officer was alright and that he had not killed anyone. [17]
17. A psychiatrist's report of 11 May 1971 includes that the accused began taking drugs two years ago when he attended the Wayside Chapel at Kings Cross where he was introduced to drugs. He had taken amphetamine tablets fairly regularly, had used marijuana and had occasionally sniffed heroin. [18] The psychiatrist also wrote: "His principal complaint was of hearing a voice which instructs him to perform aggressive acts such as violence towards others or self-destruction. He complained that the voice was irresistible and that he needed help for the protection of society and of his own life." "His recent confession to the murder of a child in Wollongong was claimed to be on the instruction of a voice which informed him that he had committed this crime and should confess. He was uncertain about his guilt and said he would rely on the Police enquiries and if charged would plead guilty so that he could be 'put away' in the public interest."
18. The psychiatrist recorded an opinion that the accused's intelligence appeared to be "dull average" and his overall opinion was encapsulated in the following: "In my opinion, [the accused] is suffering from a severe personality disorder of antisocial type. He disclaims any responsibility for his behaviour, claiming that he is unable to resist his compelling voices and that he is anxious to co-operate in any efforts which might modify his behaviour. I do not consider that he would benefit from psychiatric treatment in hospital but believe that he should remain under psychiatric supervision while in custody and that he should be under maximum surveillance. His future prognosis appears gloomy."
19. A report by the senior psychiatrist at the Metropolitan Boys' Shelter of 13 May 1971 included his opinion that there was "no overt evidence of a serious mental disorder such as a psychosis, but his behaviour pattern reflected a deliberate conscious effort to manipulate authority in one way or another (the suicide attempts and the confession to a murder) so that he may gain some advantage by these attention seeking acts". [19]
20. The accused was transferred to the Mt Penang Training School. A psychological assessment carried out on 12 May 1971 included that his intelligence was "dull normal to average". He told the psychologist that he attributed "his states of depression and frustration to his previous drug intake over a period of 2 years". The psychologist thought that "much of his problem behaviour is attention seeking in nature and highly influenced by his previous experiences under drug addiction". [20]

Expert psychiatric evidence

1. Dr Allnutt and Dr Samuels were called to give concurrent evidence and the following encapsulates their opinions.
2. They were in broad agreement (or at least, there was no express disagreement between them) that the accused had a low average intelligence, [21] was immature, [22] and more vulnerable than the average 17 year old as a result of his disturbed upbringing, difficult relationship with his parents, history of running away from home, moving countries, low intellect and limited education. [23] Both agreed that this meant the accused would have been vulnerable to influence, [24] and may have had a propensity to respond to the cues or expectations of others. [25]
3. Both agreed that at the relevant time, the accused had a very disturbed mental state, [26] and was acting out in various ways, [27] but that that state was brief and transient and something caused it to stop, [28] as there is no evidence that it continued into adult life. Further, the experts agreed that they could not conclusively diagnose any mental condition suffered by the accused at the time of the 29 April 1971 interview.
4. The experts disagreed, however, on the nature of the accused's disturbed mental state or mental condition suffered at the time of the 29 April 1971 interview. [29]
5. Dr Samuels drew on evidence of the accused's antisocial, self-harming and dishonest behaviours to suggest that it was likely that the "most consistent diagnosis, psychiatrically during that period would appear to be a conduct disorder or personality disorder with antisocial and borderline type features". [30]
6. Dr Allnutt placed more weight on contemporaneous notation of substance use, [31] amphetamine withdrawal and clinical terms like clouding of consciousness, reports of hearing voices, disorientation, and his age and living circumstances [32] to suggest that the accused was suffering from a drug-induced psychosis, although he notes that the absence of a contemporary diagnosis of psychosis at the time does undermine the strength of this opinion. [33] Later, Dr Samuels acknowledged agreement with Dr Allnutt that drugs may have affected the accused's mental state in the days prior, but he did not hold the opinion that he was psychotic at the time of the confession [34] .

Application of s 13 of the Children (Criminal Proceedings) Act

1. I reiterate that the provisions of s 13 of the Children (Criminal Proceedings) Act apply to the question of the admissibility of the interview by the police of the accused on 29 April 1971, notwithstanding that it, or any legislative equivalent, did not come into existence until years later.
2. No parent, adult or legal practitioner was present at any stage of the police interview and so evidence of the interview is not admissible unless the requirements of both (i) and (ii) in 13(1)(b) are met. It is uncontroversial that the Crown bears the onus of establishing each of these matters on the balance of probabilities.

"Proper and sufficient reason for the absence of such an adult" - s 13(1)(b)(i)

1. There is no doubt that no-one fitting any of the descriptions of persons listed in s 13(1)(a) were present at any stage of the 1 hour 40 minute interview of the accused on 29 April 1971. Accordingly, the first issue is whether there was a "proper and sufficient reason for the absence of such an adult". Miles J pointed out in McKellar v Smith & Anor; Booth v Smith & Anor [1982] 2 NSWLR 950 at 956E that in relation to the s 81C Child Welfare Act equivalent of the current provision in s 13(1)(b)(i) the consideration of whether there was a proper and sufficient reason for the absence of any of the persons listed in what is the current equivalent of s 13(1)(a) requires consideration of whether there is such a reason for none of them to be present.
2. A starting point for the Crown Prosecutor's submissions concerning the issue in s 13(1)(b)(i) was the fact that there was no mandatory requirement, legislative or otherwise, or even a guideline by way of police instruction, for an adult support person to be present during the interview. [35] The New South Wales Police, Rules and Instructions, (1957) did not require police to request a parent be present and in those circumstances it could not be inferred that this would have been something that would have occurred to Detectives Parrington and Findlay that they should do.
3. Relevant to the foregoing, the Crown tendered a report (Exhibit D) which emanated from an extensive review of police procedures and the admissibility of confessional material by an eminent committee over which the then Chief Justice, the Honourable Sir Leslie Herron, KBE CMG, presided: Proceedings of the Institute of Criminology No 18, University of Sydney Faculty of Law, Police Questioning and Confessional Statements, May 1965-November 1970 (the "Report"). It was "thought to be desirable that an independent person should be present at the questioning of a child". It proposed that a new instruction to police, prefaced with "if reasonably practicable", would specify the presence of a parent, guardian, relative, friend or other responsible person; failing that, a senior police officer not connected with the case: Report at 58.
4. While this Report sheds some light on the prevailing attitudes of the day, and no doubt was the product of much consideration by very learned participants, I did not find it useful in shedding light on the "proper and sufficient reason" topic in this case. The status of the Report as at 29 April 1971 was that it provided evidence and learned opinions as to a proposed reformulation of the Police Instructions, something that did not come to pass until some years hence.
5. The Crown Prosecutor referred to the judgment of Roden J in R v Williams (at 9) where his Honour envisaged that the "proper and sufficient reason" provision in s 81C of the Child Welfare Act could exist for physical or geographical reasons making it impossible for an adult to be present. Another might be when the interviewee declined the opportunity to have an adult present or refused to be interviewed unless interviewed alone. A further reason might be that which pertained in the case at hand where the police had been misled as to the age of the interviewee and had no ground to further investigate that matter. His Honour was satisfied that there was "proper and sufficient reason" in that case and proceeded to consider the "particular circumstances of the case".
6. Just as it appeared to the police in R v Warren that there was no requirement to secure the presence of an adult, the same applied in the present case, as I understood the submission, in that the police did not know that there was such a requirement because, in fact, there was none in existence in 1971.
7. The police running sheet includes that police had information from Mr Lecky, the manager of the Metropolitan Boys' Shelter, to the effect that the accused was a rather disturbed young man. It is recorded that police were told of his suicide attempts on at least three occasions and the fact that he had exhibited violence, once armed with a knife, to fellow inmates. They were also told that he was "moody, quick to anger, and a 'loner'", and also that he was kept on sedation for the majority of the time. It is also recorded, and presumably this was what police were told: "When spoken to he is vague in the extreme, appears susceptible to suggestion and frequently was found to be telling untruths." [36]
8. This appears in a running sheet dated 1 June 1971 which has the appearance of a final summation of the results of all of the police inquiries in relation to the accused's "confession". Whether this information was provided by Mr Lecky to the detectives before or after the interview on 29 April 1971, or partly before and partly after, is unclear. In his evidence at the committal hearing on 27 July 2018, Mr Findlay could not recall what was discussed with Mr Lecky. [37]
9. These are matters which point to the desirability of the accused being accompanied by a parent, other adult or lawyer when he was interviewed by detectives in relation to their murder inquiry.
10. I am satisfied that adults were available who could have been asked to accompany the accused during the interview. The detectives were told at an early stage of the interview (Q 6) that the accused's parents lived at a certain address in Frankston, Victoria. Former Detective Findlay was able to recall that no attempt was made to contact them. [38] There was no evidence to suggest that one or both of them would not have been prepared to travel to Sydney if asked. The accused was not asked if he would like a parent present.
11. Putting aside the parental option, the interview occurred at a juvenile shelter where there were adults present or contactable. I would infer that such adults would have included professionals such as psychologists who would have been particularly helpful in relation to a child of the accused's background, intellect, and mental condition. It is not apparent that any thought was given by the detectives to asking the accused if he would like an adult to be present, or to asking any adult to be present regardless of the accused's wishes. Further, there is no suggestion of any thought being given to contacting a lawyer to see if he or she might be available to sit in on the interview, or at least to provide advice to the accused. It would be reasonable to expect that the accused would have had a lawyer when he appeared in the Children's Court two days earlier. [39]
12. Notwithstanding the foregoing, I am satisfied that there was a "proper and sufficient reason" for the absence of a parent or other adult or legal practitioner at the interview with the accused on 29 April 1971. I am prepared to accept that these detectives probably had little or no idea about the emerging recognition of the undesirability of children being interviewed in the absence of an independent adult. The existing instructions to police officers were hardly stringent, let alone expressed in the mandatory terms of the legislation not enacted until some six years later.

"In the particular circumstances of the case [the evidence] should be admitted"

1. The Crown Prosecutor submitted that "the particular circumstances of the case" was a broad provision. It was not confined to an examination of the accused's level of maturity or any vulnerability he may have had. It extended to all aspects of these criminal proceedings, not the least of which was the extremely unusual circumstance that the Court is concerned with admissions made by a juvenile in 1971, prior to there being any legislative or even police guideline in relation to interviews of juvenile suspects. [40]
2. Another circumstance was said to be that the accused was aged 17; that is, at the upper end of the age-range with which s 13 of the Children (Criminal Proceedings) Act is concerned. [41]
3. A further consideration was said to be that this was not a case in which the police overbore the child-interviewee in any way so as to attempt to extract an admission that they would not otherwise have obtained. There was no suggestion of the accused's answers to questions being influenced by anything the detectives said or did. [42]
4. The Crown Prosecutor acknowledged that a clear thread in the authorities is that s 13 is designed to protect the accused from him or herself. He cited, by way of example, R v Williams. In that case the Crown sought to persuade Roden J to admit the evidence because the accused had left school and left home and was, at the relevant time, living the life of an adult and seeking to have everyone regard her as such. She was living with a person Roden J described as a doorman or stand-over man who had been largely responsible for her adopting a false date of birth so as to enable her access to licensed premises. Roden J described her (at 10) as "living and spending her time in company of her own choosing, and acting in all respects as though she believed that she was well able to take care of herself and required no adult guidance or assistance".
5. Roden J approached the issue by regarding all of those matters as part of the "particular circumstances of the case". Another matter to which he had regard was the seriousness of the charge: murder. He said he could imagine a young person who could look after herself and cope adequately if being interviewed with regard to some minor traffic infringement but it was another thing if the allegation involved an unlawful killing. Another aspect was that the accused might not have appreciated in the interview that she was saying things that rendered herself liable to prosecution for murder by reason of conduct that she would not herself have been likely to understand as having that consequence (at 10-11).
6. Roden J found Ms Williams to be a "very intelligent young woman" with "a physical maturity beyond her years" and "a high degree of confidence that she has the ability to manage her own affairs" (at 11). He considered that she was wrong in that assessment of herself and that "she is in many respects her own worst enemy". He concluded that, "If the legislation was designed to protect children and young persons from themselves, then she is certainly one who, eighteen months ago, required that protection" (at 11). The circumstances of the case did not justify the exercise of the discretion to admit the challenged evidence and so it was rejected.
7. In raising this case as an example, the Crown Prosecutor sought to distinguish it only on the basis that in the present case the accused could not have been labouring under any misapprehension about the fact that he was making an unequivocal admission to having abducted and murdered the little girl. It was submitted that as a consequence there was not the same need for the accused to be protected from himself. [43]
8. I accept that it is quite likely the accused realised he was confessing in clear terms that he abducted and murdered the little girl. He told the detectives that he intended to have sexual intercourse with her; he did not because she started to scream as soon as he took a gag off her; so he then strangled her, she stopped breathing and he thought she was dead. He said he then "panicked and covered her up with bushes and run for it". [44]
9. The course which the interview took is somewhat troubling. Mr Lecky, the shelter manager, recorded that the accused had "claimed he had murdered and buried a little girl at Fairymeadow [sic]". [45] It is reasonable to assume that Mr Lecky would have told the police something to this effect. However, the interview commenced with the accused being told that the police had been informed by Mr Lecky that the accused "may be in possession of information which could be of value to us in our investigations". The police then explained how they were going to ask him questions, but what they described was more befitting a style in which a mere witness might be questioned. There was no caution.
10. The interview proceeded with typical introductory questions and answers (full name, date of birth, address, location of parents and the like). The interview continued: "Q.12 Mr. Lecky has informed us that you have some knowledge of events which may assist us in our inquiries relative to the disappearance of the child … from Fairy Meadow Beach. Would you like to tell us what this knowledge is? A. Yes, I was down the beach that day and I saw a man drive past me in a car with a little girl. I walked along the beach to Wollongong and I saw the man driving back on his own. Q.13 Do you know who this man is? A. No. Q.14 Can you give us any description of the man or the girl? A. The man had a dark growth on his face and his hair was hanging over his right eye, but I cannot describe what the girl looked like. Q.15 We have been informed by Mr. Lecky that you have appeared to be worried about something. Would you like to tell us if this is so? A. Yes, I am worried, I did that to the little girl, I didn't mean to do it. Q.16 Do you mean that you had something to do with the disappearance of the child, …? A. Yes. Q.17 I am now going to ask you certain questions about this matter I must warn you that you are not obliged to say anything unless you so desire as anything you do say may be later given in evidence. Do you understand that? A. Yes. Q.18 Would you like to tell us what you know about the disappearance of this girl? A. I arrived at Fairy Meadow beach early on the morning of the 12th January, 1970, I hung around the beach area until I seen these bunch of children come up from a swim. They all went into the changing room and I took that they changed themselves then they came out of the change room. I saw this little girl get a drink from a bubbler outside the change room. Some of the children started to walk away and this little girl hung back. I came around from the back of the shower block and grabbed the little girl. …"
11. The interview then continued with the apparent confession unfolding in quite some detail.
12. The Crown Prosecutor submitted that "the most desirable course for [the police] to have taken would be to have cautioned him from the outset". He accepted that the approach the detectives took was "not the most desirable course". But at least he was cautioned immediately as the accused commenced to make his confession and before the detail of it emerged. [46] It was candidly acknowledged by the Crown Prosecutor that he "can't speak against" the suggestion that the accused had been, in effect, beguiled into speaking freely before putting himself into jeopardy which made it more likely that he would continue to speak freely once the confession started to come out, notwithstanding the giving of the caution in its usual terms (and to a young person of rather marginal intellectual capacity). [47] One can only speculate whether the interview might have proceeded differently if there had have been a parent or other adult, or a lawyer, present in the room.
13. It is not only the manner of the interview itself that is concerning. It is necessary to have regard to the fact that this interview took place in the absence of any independent adult, and was conducted in a juvenile detention facility where the accused was being compulsorily detained against his will. Then there are of course the personal attributes of the accused. They included the following: ● Below average intelligence ● Very disturbed upbringing ● Very disturbed mental state which might be explained as a conduct disorder, a personality disorder with antisocial and borderline type features, or psychosis ● Immaturity
14. In addition to these personal attributes, the accused did not have the benefit of any legal advice as to the ramifications of answering police questions as opposed to exercising his right to silence. There was also no contemporaneous psychiatric or psychological assessment as to whether he was in a fit state to understand a caution and be interviewed.
15. The consistent theme within the concurrent evidence of the psychiatrists was that the accused was more vulnerable than an average 17 year old. In my view, he did not have the protection in respect of his disadvantageous position that the legislation is directed to.

Evidence Act: ss 85 and 90

1. In the alternative, Counsel for the accused sought exclusion of the record of the interview on the basis of either s 85 or s 90 of the Evidence Act. Having regard to my finding as to the primary basis upon which exclusion was sought, I will simply state my conclusions.
2. As to s 85, I am satisfied that the truth of what the accused told the detectives was not adversely affected. It is significant that the essence of what the accused said in the interview was consistent with what he had said to Mr Lecky, the shelter manager. There is no indication in the record of the interview that he was, as was the subject of concern expressed by the psychiatrists giving expert evidence, giving effect to a propensity to respond to the cues or expectations of others in terms of what he said happened to the little girl at Fairy Meadow.
3. However, for essentially the same reasons as I uphold the objection based upon s 13 of the Children (Criminal Proceedings) Act, I am satisfied that it would be unfair to admit the evidence: s 90.

Summary of conclusions

1. The question of admissibility of the record of the interview conducted by Detectives Parrington and Findlay with the accused on 29 April 1971 is governed by s 13 of the Children (Criminal Proceedings) Act.
2. There was no parent, other adult, or lawyer present during the interview as the section requires as a precondition for admissibility.
3. There was "proper and sufficient reason for the absence of such adult" during the interview; that being the fact that the police were not, and could not be, aware that this would at some time in the future become a statutory requirement for them to adhere to. There was no such requirement in 1971.
4. The interview should not be admitted in evidence having regard to the "particular circumstances of the case". These circumstances primarily relate to the manner in which the interview was conducted and the particular vulnerability of the accused at the time.
5. The interview should be excluded on the basis of unfairness pursuant to s 90 of the Evidence Act.

Decision

1. The record of the interview of the accused on 29 April 1971 is inadmissible.

Endnotes

1. Ex 1, tab 7(a).
2. Ex 1, tab 7(c).
3. Ex 1, tab 7(d).
4. Ex 1, tab 6.
5. Ex 1, tab 6, 7(e).
6. Ex 1, tab 7(e).
7. Ex 1, tab 7(g)(h).
8. Ex 1, tab 7(i).
9. Ex 1, tab 7(j)(l).
10. Ex 1, tab 7(l).
11. Ex 1, tab 7(m).
12. Ex 1, tab 7(o).
13. Ex 1,tab 7(p).
14. Ex 1, tab 7(s).
15. Ex 1, tab 7(r).
16. Ex 1, tab 7(q).
17. Ex 1, tab 7(u).
18. Ex 1, tab 7(t).
19. Ex 1, tab 7(v).
20. Ex 1, tab 7(y).
21. Tcpt, 5 February 2019, p 47(7), 49(10).
22. Tcpt, 5 February 2019, p 47(8), 51(50).
23. Tcpt, 5 February 2019, p 50(31-34).
24. Tcpt, 5 February 2019, p 50(49)-51(2).
25. Tcpt, 5 February 2019, p 47(39), 48(37-39), 56(35-46).
26. Tcpt, 5 February 2019, p 43(4).
27. Tcpt, 5 February 2019, p 39(7), 42(27-29), 44(7-8).
28. Tcpt, 5 February 2019, p 42(34-39), 43(5-6).
29. Tcpt, 5 February 2019, p 40(14-31), 42(3-24).
30. Tcpt, 5 February 2019, p 38(42-45).
31. Tcpt, 5 February 2019, p 40(14-15).
32. Tcpt, 5 February 2019, p 45(21-27).
33. Tcpt, 5 February 2019, p 45(29-34).
34. Tcpt, 5 February 2019, p 59(33-39).
35. Tcpt, 6 February 2019, p 85(10).
36. Ex 1, tab 2, 759/4.
37. Tcpt, 27 July 2018, p 9(35)-10(24). See also Tcpt, 27 July 2018, p 14-15.
38. Tcpt, 27 July 2018, p 13(20).
39. Ex 1, tab 7(r).
40. Tcpt, 6 February 2019, p 87.
41. Tcpt, 6 February 2019, p 87(47).
42. Tcpt, 6 February 2019, p 88.
43. Tcpt, 6 February 2019, p 91(39).
44. Exhibit 1, tab 1, Q 54-60
45. Exhibit 1, tab 7(w)
46. Tcpt, 6 February 2019, p 89-90.
47. Tcpt, 6 February 2019, p 90(15).

Amendments 15 February 2019 - [20], [32], [72], [104] - typographical errors DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 February 2019