R v Vinh Chi Pham [2000] QSC 274

[2] Later that evening Hoa phoned Detective Murray and Detectives Murray and Holt proceeded to the accused's home. Hoa gave evidence that he picked up the accused at the railway station. The police were at the residence when they arrived home. Hoa also said that he knew before he went to pick up his brother that the police were investigating the murder of the man, who was his sister's boyfriend.

[3] Hoa gave evidence that on the way home he told the accused that the police were waiting there for him. He had asked Hoa what he had done and why the police would want to talk to him. The accused had remained silent. The accused gave similar evidence except that he said that he told Hoa that he did not know. However, the accused also gave evidence that he had a very firm idea in his own mind that the police wanted to talk to him about his involvement in what had happened to the deceased man.

[4] When the accused and Wah arrived home at about 9.41 pm Detective Murray said:

"MURRAY: Hey Vinh how are you Gidday Wah how are ya? Mate my name's Joe MURRAY and this is ah Adrian HOLT okay.

MURRAY: Mate ah we need to speak to you about some things okay.

MURRAY: Alright mate ah if you wouldn't mind coming back to the, the Police Station.

MURRAY: Okay mate ah you don't have to come back to the Police station if you don't want to, um it might be best if Wah comes up with you.

MURRAY: Because he can speak good English and that with you. When, when we go back there we'll explain what it's abut and we can sort it out mate. Okay.

[5] The accused gave evidence that he understood from this that he had a choice of staying at home or going with the police.

[6] It was submitted that the initial contact involved a breach of s 63 of the Police Responsibilities Code. Section 63(3) applies if a police officer approaches a person at a place other than a police station. Amongst other things it requires the police officer to advise the accused person of the subject of the proposed questioning and to ask the suspect if he is prepared to come with him to the police station. It also requires a question whether the person understands that they are not under arrest, and that they did not have to come with the police officer.

[7] The exchange quoted above is deficient in that it does not specifically state what the questioning is to be about. Further, the invitation to come back to the police station is less neutral than the requirement in s 63(3). There is no specific reference to not being under arrest but it is stated that the accused did not have to go to the police station if he did not want to. Further, the accused understood that he had such a choice.

[8] Exclusion for failure to comply with the Police Responsibilities Code depends on an exercise of discretion. Standing alone, in the context of this case and, in particular, the admissions by the accused in evidence that he knew that he had a choice whether to go with the police or not, and that he had a firm idea that he was going to be questioned by the police about the death of the man, the circumstances are not such as would attract a favourable exercise of discretion in the accused's favour, even taking into account his age.

[9] The other aspect of the application is concerned with whether the role of the independent person was adequately explained to the accused's brother, and whether he performed that role adequately.

[10] One of the general principles underlying the operation of the Juvenile Justice Act is that because a child tends to be vulnerable in dealings with a person in authority, a child should be given the special protection allowed by the Act during an investigation in relation to an offence committed or allegedly committed by the child (s 4(b)). Section 9E(1) provides that in a proceeding for an indictable offence, the court must not admit into evidence against the defendant a statement made or given to a police officer by the defendant when a child, unless the court is satisfied that there was present at the time and place the statement was made and given a person in one of five categories. One of those categories is an adult nominated by the child. Section 9E(5) provides that s 9E does not limit the power of the court to exclude evidence from admission in a proceeding.

[11] In R v Coe (CA No 437 of 1996, unreported 22 April 1997) the child's mother had declined to be present. A justice of the peace who was asked to be the independent person was found to be "a nervous wreck", in pain, and annoyed at being called out on Easter day at dinner-time. She was also found not to fully understand the rights of the suspect being interviewed and to be an unreliable witness as to what was actually said. The confession was excluded. The reasons for judgment of The Court of Appeal said the following:

"There is no sufficient reason for implying qualifications into the categories of adult person who must be present by reference to the competency of that person, or his or her capacity to provide useful advice or assistance to the child, or to remember what occurred in his or her presence, including questions asked and the answers given. Any defect or deficiency in the role played by the adult person present, who obviously is intended to support the child, falls for consideration in the exercise of a court's general discretionary power to exclude confessional evidence in a criminal proceeding, the applicability of which is recognised by sub-s 9E(5)."

[12] I was also referred to another example of circumstances which led to exclusion in the matter of The Queen v Coombes & Orr where Judge Pratt excluded confessions of boys who were residents at Boys Town and who were interviewed in the presence of a Brother who was ultimately responsible for discipline. The Brother was known to the boys to be a "warm, fair but firm father figure" who would not turn a blind eye to wrongdoing, and would not tolerate lying. The Brother had also agreed that the boys probably would have been anxious to please him by owing up and appearing contrite. Each case where the role of the independent person is called into question will depend on its own facts.

[13] I should record that my impression of Hoa's command of English was quite good. He progressed to Grade 10 standard at school in Melbourne and has been in a small business for some time. The transcript also demonstrates that he is quite fluent in English. The accused was also fluent in English.

[14] The evidence relating to this issue came from the two detectives and from the accused and his brother Hoa. It is necessary to observe, in the first instance, that Detective Murray appears not to have turned his mind to compliance with the requirements of the Juvenile Justice Act in so far as they relate to the independent person understanding his role. However, Detective Holt who had Juvenile Aid Bureau experience said that, without reference to Murray, he had obtained information in written form about the role of the independent person from the Juvenile Aid Bureau and given it to Hoa. It should also be observed that the accused did not give evidence of recalling Hoa reading a book or other material given to him by the police. Nor did he give evidence that he heard the police speaking to Hoa about the contents of the document at any time. However, I do not place great significance on the latter since Detective Holt's recollection in evidence before me differed from his recollection in the Magistrates Court as to whether he had spoken to Hoa within hearing of the accused or not.

[15] The major area of cross-examination related to the sequence of events and in particular whether and, if so, at what stage of the presence of the accused and his brother at the police station the police officers or one of them had said that they knew what the accused had done, that all of the others had told the police what his involvement was, and that it was better if he came clean. Such a statement may bear on both admissibility and discretionary exclusion.

[16] Hoa said that prior to the police leaving him and his brother alone in the interview room someone had said the words. He said he had a conversation with the accused and advised him to tell the truth because the police knew everything already. He said that by this time the accused had told him that he and others had bashed someone the night before. Hoa said he had later been given a red or orange card when the police or a policeman came back into the room. (Detective Holt said that the document was not an orange book, but was a photocopy of such a book, since that was all that they had). Hoa agreed that what he was given explained the role of the independent person, that he was not rushed while reading it, and that it was in plain English. He was asked whether he had ever been given an opportunity to speak to Vinh alone about what was on the card. He replied "Not that I can remember, no". He said, however, that he understood that the police could not force his brother to say anything but said that he believed they were telling the accused that he should reveal everything since they knew already.

[17] Mr Smid led Hoa through a sequence of events which on its face appeared inconsistent with the timing that he had given previously of the statement allegedly made by the police. This sequence involved the card being given to Hoa and read by him prior to the police coming back into the room and making the alleged statement. When Mr Smid pointed out the difference he maintained again that those words were said at an early stage of their presence at the police station.

[18] There is no evidence that the words directly affected the accused's decision to speak rather than be silent. He gave no evidence that the advice to tell the truth was qualified by the notion that the police knew of his role. It may be observed that if the words were said at the outset of the presence of Hoa and his brother at the police station the statement may well have tainted the mind of the independent person who heard them. It is surprising that, if it was said early in their presence there, the accused did not give evidence of hearing it said since there is nothing to suggest that they were not in each other's company at that point. If, on the other hand, it was said later, it may well be thought that it would have a tendency to reinforce the notion that the accused should speak rather than remain silent in the mind of the independent person which would subvert that person's proper role.

[19] The question is whether in the end I am satisfied that the words were said. Having given the matter consideration in light of the evidence, I am satisfied on balance that those words were not said at any time. I find that the independent person was given written information about his role and that he read and understood it. The mere fact that the independent person may have encouraged the accused to tell the truth is not evidence, in the absence of other factors, that the role of the independent person has miscarried.

[20] In the circumstances I conclude that the evidence is not inadmissible and that it should not be excluded on discretionary grounds.