REGINA v. TANG [2001] NSWCCA 210

REGINA v. TANG [2001] NSWCCA 210 - NSWCCA 2001 case summary — Zoe

[8]

"(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 16 years an adult (other than a member of the police force) who was present with the consent of the child, or (iv) a barrister or solicitor 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. (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." 7 The first of the grounds of appeal relates both to the admission into evidence at the trial of an electronically recorded interview, Exhibit N, and a recorded "walk through" interview, Exhibit Q, between the police and the appellant notwithstanding s.13 may have been applicable and to matters it is said the appellant refrained from referring to when he gave evidence at the trial and which he did not speak about in those interviews. Those matters, in particular, were that it was another boy who had a knife and stabbed the deceased. In those interviews the appellant answered important questions in a non-committal way which was a course he now says he took in order to avoid revealing the activities of the other boy. It is said that he answered, typically, "no comment" to avoid revealing the other boy's crime out of fear.

[9]

The fresh evidence 8 The fresh evidence includes a number of affidavits tendered on the appeal. They may conveniently be considered as referring to two different categories of evidence. The first is evidence tendered to prove that, at the time of the appellant's interview by police, he was under 18 (although he believed that he was over that age) and that persons who might have accompanied him in the interview situation would have advised him not to speak, at least until proper advice had been received and evidence from him that he would not have spoken; also, that his counsel at trial, not knowing that there was a question of the appellant's age, had failed to object to the admissibility of the exhibits as in the circumstances he otherwise would have done. 9 In response to the evidence tendered by the applicant of his age, there were filed by the respondent, affidavits from Chief Inspector Williams and Mr. Erris Shields, formerly a Detective Sergeant, the officer in charge of the investigation, dealing with the appellant's assertions of his age. That latter affidavit included reference by the former Detective Sergeant to having approached the appellant's mother some 10 days prior to the appellant's interview and arrest seeking to ascertain the appellant's birth date. 10 The second body of evidence relates to the matters not referred to at trial and includes the appellant's denial of the offence, his account of the events, the assertion of the guilt of the other boy, his decision out of fear to avoid inculpating the other boys in the interviews and why it was he came to give evidence at the trial as he did. There was also some evidence of a prior consistent statement of the appellant's version of the events made by him to a family friend. 11 The respondent submitted that the fresh evidence had to be considered with the evidence at the trial. In addition to reliance on the evidence of the three boys as showing a powerful Crown case, it was submitted that there were two particularly significant aspects of the evidence which supported the prosecution's contention. The first being the substantial body of evidence that the appellant had gone into hiding almost immediately after the killing and had given a false name, address and date of birth to the police. On any view of the case, offences had been committed by the boys or at least there was a basis for belief they were likely to be suspected. Thus one could not relate that activity of the appellant exclusively to an hypothesis that he had been the killer. Further, it was submitted that a cut green mango had been found near the scene of the killing. The injury to the mango was consistent with it having been cut with a knife. The appellant had said in evidence he had been eating a green mango prior to the incident. He had denied using a knife to cut it. This matter in itself, does not seem to me to add such weight to the Crown case as would require rejection of a significant possibility of acquittal.

[10]

Crown submissions of legal test 12 On the hearing of the appeal the learned Solicitor-Genera, who appeared for the respondent, made submissions that the appeal, at least as far as ground two was concerned, should be dealt with on a particular basis. He accepted that the applicant was not accompanied by any such person as s.13 refers to and made no submission there had been any attempt by the police to procure the presence of such a person. He submitted, however, that the appeal should be dealt with on that ground on the bases that the appellant's date of birth was 10 September 1979 and hence he was 17½ at the time of the relevant interviews; and that the appellant had not knowingly misled the police but had, on a number of occasions, told them, in effect, that he was over 18. 13 In the light of those matters, he put to us that the appropriate test to be applied to decide the appeal on that ground was that it was both necessary and sufficient for the appellant to show, in the light of those matters, that there was a significant possibility that the evidence of the interviews would not have been admitted had the appellant's true age been known and that if the evidence had been excluded, there would have been a significant possibility of an acquittal. That test was apparently derived from that proposed in this court in Regina v. Stackelroth (CCA, unreported 3 April 1996). 14 Although in the written submissions and orally, there was some discussion of whether the issue raised involved the not unusual question of evidence said to have been wrongly admitted below and the consequent consideration of the proviso to s.6 involving, as it does, the consideration of whether there had been a substantial miscarriage of justice, or whether the issue required an examination of the application of the principles referred to in Mickelberg v. The Queen (1989) 167 CLR 259 and other decisions on fresh evidence, having regard to the acquiescence of the appellant's counsel in the test proposed by the learned Solicitor-General and because it seems to me it fairly embraces the crucial question to be considered in this case, I am content to deal with the appeal on the basis advanced. 15 I am therefore relieved from having to refer specifically to so much of the affidavit evidence as related to the appellant's age. There seems to be no suggestion that there would not have been an objection to the evidence by counsel had he been aware of the true position as to the appellant's age. The test proposed by the Crown appears to accept that objection would have been taken. Further, there was no factual challenge to the balance of the evidence relevant to that ground, that is, that the appellant would have been advised not to speak and would not have spoken as he did to the police. The appeal, indeed, proceeded on that basis, although there remained a submission by the respondent that there was no significant possibility a judge would have rejected the evidence as such a judge would have been satisfied there was proper and sufficient reason for the absence of an adult (s.13(1)(b)(i)) in the appellant's conceded mis-statement of his age to police and that such a judge would consider, in the particular circumstances, the evidence should be admitted (s.13(1)(b)(ii)). As well, there was the ultimate submission that even if the evidence should have been excluded, the evidence against the appellant and the appellant's evidence at the trial were such that there was no significant possibility of an acquittal. 16 As to the evidence in the second category, it was simply contended this evidence did not meet the fresh evidence principles such as to be properly admissible before us and such as to warrant the grant in itself of a new trial. 17 I turn then, to ground two and to that aspect of the first ground which relates to the admissibility of the evidence, the admissibility of which is directly raised by ground two.

[13]

The appellant's interviews 29 I take the following account of what he said in the first interview from the Crown submissions:- "During the course of the ERISP, the appellant was cautioned. The appellant said that around 10.00 pm on the night of the fight, he had met Andrew (Marfia), LS, Jason (Ingamells) and another friend of his (who'd later gone home) at a park. He had caught a train to the park. He and the other three boys walked to Marfia's house so Marfia could drop off his bumbag, and he waited outside with LS. Later, Ingamells, who had gone somewhere, arrived. They then decided to walk around and look for fruit. Prior to reaching Berala Street, they stopped at a mango tree, picked a mango and ate it together. When asked if anyone had cut the mango, the appellant said that they just took a bite of it. Subsequently, they walked passed (sic) another mango tree. Someone pulled it out, and they left it under a tree with the intention of returning to collect it. They continued walking and noticed a mango tree behind a fence. The appellant jumped over the fence, picked mangos off the tree and threw them over the fence. The appellant was asked to describe what had happened after this, but he did not wish to comment. Various allegations were put to the appellant during the ERISP, including the deceased coming outside; the deceased being kicked by the boys; the boys, including the appellant, running away; the appellant subsequently producing a knife and telling the others that he had stabbed the deceased; the appellant having blood on his clothing; and the boys washing off blood at a tap. He declined to comment. When asked what he and the other boys had done to the deceased, he also declined to comment. He also declined to comment on whether or not he had seen any injuries on the other three boys that night. He said that he had not been injured. He declined to comment on what he had been wearing. Although police had searched his mother's house and unit connected with him, and found no clothing belonging to the appellant, he denied that he was deliberately hiding his clothes from the police. It was put to the appellant that the deceased was stabbed, and he was asked if he could comment on who caused the deceased's injuries and if he had seen the deceased being stabbed. He declined to comment. He did say, however, that he had seen blood on the deceased, and at the time he was one to three metres away. The appellant denied producing a knife at the park. He told police that he had not seen a knife at any stage on the night of the fight. He also denied owning or carrying around a mobile phone that night. The appellant said that he had last seen the three boys on the night of the fight. The appellant explained that he had given police a false name, address and date of birth because he had not wanted any trouble." 30 The second interview is summarised in the Crown submissions as follows:- "The appellant subsequently accompanied police on a video-taped walk-through of the murder scene. The appellant said that when he was in the backyard he saw a man (the deceased) in his underwear grabbing Marfia. Marfia punched the deceased who then grabbed the appellant and 'whacked' him in the head. The appellant's shirt was then torn. The appellant then saw Ingamells and LS on the deceased, and he joined in, and a brawl erupted, which included the appellant kicking and punching the deceased. When the appellant stopped he saw the deceased stand up and then fall down again. The appellant told police during the walk-through that he had had blood on his clothes (including a 'Hang Ten' top, which he had thrown away). He firstly said that he had not washed anything at the tap, but later said that he had washed his face and had a drink. Later, as he was running away with Ingamells, he had told Ingamells to throw away his top because it was full of blood. In fact, all the boys had blood on them. Again the appellant told police that he had not seen a knife." 31 The interviews were video taped and recorded on audio tape. The video tapes, the audio tapes and a transcript were admitted into evidence and the video tapes were played for the jury, all without objection.

[14]

The evidence of the other boys 32 At the trial the three other boys gave evidence against the appellant. The first, JI, gave evidence that the appellant showed him a knife that the appellant had in his possession prior to the events at Berala and that during the scuffle he could see the appellant in contact with the deceased but could not see what he was doing. He did not see the appellant with a knife during the fight but saw the appellant with the same knife he had earlier seen, after the fight on an occasion when they sought to wash their clothing and witnessed the appellant admitting to the other boys that he had stabbed the deceased three times. He, himself, had been in possession of a knife that night but it was a "skinny butterfly knife". One of the other boys, AM, had given it to him earlier in the evening. He admitted that he had not told the police about it but asserted that this was because they had not asked him about it. He had attempted to give false information to the police concerning the boys other than the appellant. 33 In cross-examination, he agreed that he had findings recorded against him of a number of charges for assault occasioning actual bodily injury. 34 AM gave evidence that he was one of the boys and that he had not seen any of the boys holding anything in their hands at the park. He had, he said, not seen a knife at any stage. He had seen the fight and the contact between the appellant and the deceased. He referred to both JI and himself fighting the deceased and that LS had also run to the deceased and started to kick him. When they went to the tap he saw that the appellant had blood on his pants. 35 It was his evidence that he did not have a knife on the night of the fight nor had he seen anyone with a knife during the fight. He also denied handing the butterfly knife, or any knife, to JI. He did say, however, that he thought "one of them was holding a knife" when they had split up after being at the tap and that he believed that it was the appellant. He based this belief, he said, on the reflection in the light of an object. He agreed in his evidence that he had told police in his interview that he had seen the appellant bending over the deceased and "he might have stabbed him at that place". He said that the appellant was "going crazy" and that he had seen the deceased bleeding before LS and JI joined in the fight. 36 In cross-examination he referred to a discussion with LS in which LS had asserted the appellant had stabbed the deceased. He had told the police "the Chinese bloke did stab him as a matter of fact, 'cause he told me" but in cross-examination said this was not based on an admission but an assumption by him. He agreed that he merely accepted LS' story about who had had the knife and had nominated the appellant to police as being that person even though he had had no first hand knowledge about this. He denied having agreed with LS and JI to concoct a story. 37 LS gave evidence that he had not seen anyone with a knife at the park and did not see AM hand JI anything. He gave evidence that he had not seen anyone with a knife at any time. 38 He referred to AM and the deceased in a fight after the appellant had entered the deceased's premises and was throwing mangos over the fence. The appellant ran towards them to join in as did JI. He saw the other boys kicking and hitting the deceased but could not see what the appellant, who was on the opposite side of the deceased, was doing. He said that he heard someone ask subsequently, "Did you stab him?", and someone else, who sounded like the appellant, say, "Yeah, three times". 39 He told the police that he had heard the appellant say he needed to wash the knife but could not recall this when he gave evidence. He said, however, he had seen the appellant with a knife in his hand when they stopped at the tap. He denied that he and JI had discussed a common story to tell police.

[16]

The summing-up 45 The trial judge, in his summing up after giving the jury preliminary directions and short directions on legal issues, took the jury immediately to the accused's walk-through interview, Exhibit Q and the transcript of that interview for its relevance to any possible defence of self-defence or defence of others. 46 On the issue, which his Honour expressed to the jury as the central issue in the case, that is, whether the accused stabbed the deceased, his Honour took the jury to the evidence of the three boys, to the accused's account given at the trial and, in addition, evidence that the accused had vacated his flat, tried to break his lease and other matters which it was said went to consciousness of guilt. 47 The jury's attention was directed to the evidence of the appellant's lies as to false particulars and his date of birth. 48 His Honour said, concerning the "no comment" answers in the first recorded interview with the accused, Exhibit N:- "Now in evidence here he told you that on a number of occasions he didn't mean 'I don't want to answer that question'. What he meant by 'no comment' was a responsive answer to the question, either accepting what was put to him or denying what was put to him or conveying the effect that he could not give an accurate answer because he did not remember or did not observe something. Now you remember the Crown's cross-examination about that and his submissions to you about that. He submits that you would not accept that evidence and that it bears ill on the accused's credibility generally." 49 His Honour gave the jury a direction of the customary form that they were not to draw any inference adverse to the accused from the accused having declined to answer any question in the interview but, of course, in the light of his Honour's directions I have set out, it would be clear to the jury such a direction did not extend to the replies, "no comment". 50 His Honour made it very clear to the jury that the case depended on a conflict of credit between the evidence of the three boys and the evidence of the appellant and that matter was to be resolved on the basis of the evidence to which he had referred and which I have set out.

[17]

The significance of the interviews 51 It can therefore be seen that although the first interview does not include explicit confession of the appellant's guilt, it does contain significant admissions. It contains statements which are capable of casting a most adverse light on the appellant's credibility and was thus capable of bearing heavily upon how the jury might regard the credibility of the appellant at trial, thereby having considerable significance for the result of a trial in which the appellant's credibility would come to be weighed against the credibility of the other boy's giving evidence in the Crown case. 52 The second interview contains significant admissions also and, although not containing an explicit confession, but rather a denial of the appellant having used or seen a knife, again contains material which might bear heavily upon how a jury would regard the appellant's credibility at trial. Unless the jury were to reject the accused's evidence, he had to be acquitted. Those interviews, bearing heavily on his credibility, may well have resulted in that rejection. Without them, a jury may not have decided the same way. 53 Dealing then with the Crown's ultimate submission, for my part, I cannot conceive that if the interviews had been rejected and the cross-examination that I have referred to was thereby unavailable to the Crown, that it can be argued successfully that there was no significant possibility an acquittal would have resulted. 54 Indeed, it was the interviews that were the only material independent of that supplied by the other boys in support of the Crown case and for use to attack the account given by the appellant. His inability to explain the matters on which he was challenged and about which he had answered "no comment" must have been of considerable importance to the jury's rejection of his denial of having committed the crime at trial. 55 The cross-examination of the other boys could not be said to be such as to have entirely failed to raise credit questions for consideration by the jury. Particularly having regard to the onus and standard of proof, I would be of the view that the absence of the interviews would leave a significant possibility of a different result.

[18]

The inadmissibility of the interviews 56 I turn to the question of the inadmissibility of the interviews. 57 Section 13 provides for the general case that such statements, confessions, admissions or information made or given shall not be admitted in evidence in proceedings against a child who has provided that material to a member of the police force. It also provides for exceptions to that general case where there is a person as prescribed by s.13(1)(a) present, alternatively, where the person acting judicially in those proceedings is satisfied that there was proper and sufficient reason for the absence of such a person and in addition considers that in the particular circumstances of the case the evidence should be admitted. 58 It can be seen from the structure of the provision that it lays the onus entirely upon the Crown, should it seek to tender the material. The section, by providing the exceptions, provides circumstances in the absence of which the evidence must be, in law, rejected. Other provisions, eg., those in Part 3.4 of the Evidence Act 1995 make further provision for the admissibility and inadmissibility of such material. My view of s.13 is that for the appellant to satisfy this court that, in the admitted absence of such a person as s.13(1)(as) refers to, there was a significant possibility the evidence would be rejected, merely requires the appellant to satisfy us that there is a significant possibility, notwithstanding that the police were misinformed as to his birth date, that a judge would still reject the evidence. The judge is required to do that unless, even if satisfied there was proper and sufficient reason for the absence of such an adult, only if that judge considers that, in the particular circumstances of the case, the evidence should be admitted. On consideration of such a matter, a judge would have regard to the history of provisions of this kind (see Regina v. Aquilina (1978) 1 NSWLR 358; Regina v. Warren (1982) 2 NSWLR 360; McKellar & Booth v. Smith (1982) 2 NSWLR 950; Regina v. Cotton (1990) 19 NSWLR 593; Regina v. Dunn (CCA, unreported 15 April 1992); Regina v. H (1996) 85 A. Crim. R. 481; Regina v. Phung & Huynh (Wood, CJ. at CL, unreported 26 February 2001). 59 In Phung & Huynh (supra), Wood, CJ. at CL. set out the principles as follows:- "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. This principle derives from what was said by Lee, J in Regina v. Warren (1982) 2 NSWLR 360; by Roden, J. in Regina v . Williams (unreported 9 August 1982); by Hunt, J. in Regina v. Cotton (1990) 19 NSWLR 593; by Carruthers, J. in Regina v. Dunn (CCA, unreported 15 April 1992; and also by Hidden, J. in H (supra). 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. That position is reinforced by the requirements of the regulations so far as they apply in relation to vulnerable persons, of which a child is one. In particular Regulation 20 requires the custody manager to assist a vulnerable person in exercising that person's rights, and Regulation 26 requires the custody manager to explain to a support person that his or her role is not confined to acting merely as an observer, but also extends to doing the other things specified. It is important that police officers appreciate that the regime now established is designed to secure ethical and fair investigations, as well as the protection of individual rights, of some significance, which attach in particular to children. Those rights, obviously, are of great importance when a child is facing a charge as serious as murder or armed robbery. The provisions need to be faithfully implemented and not merely given lip service or imperfectly observed. The consequences of any failure to give proper regard to them is to risk the exclusion of any ERISP, or the product of an investigative procedure, which is undertaken in circumstances where there has not been proper compliance with the law." 60 It must be noted that the law not only requires the affording of an opportunity to a child during an interrogation to exercise on proper advice the option to speak or remain silent, but to have that advice so as to give consideration as to whether, in speaking, they might produce an account which does not do justice to their position. 61 Here it was clear that the police sought to ascertain the appellant's age, prior to arrest, from his mother. That enquiry was so specific it would seem that it was made with a view to interviewing the appellant in the absence of any such person as is referred to in s.13. 62 There would seem to be no good reason why, even if the appellant were over the age of 18, there should not have been an accompanying person permitted. Indeed, the special position of vulnerability referred to by the High Court in McKinney v. The Queen (1991) 171 CLR 468 at 478 and the considerations to which that court adverted in Foster v. The Queen (1993) 113 ALR 1 would plainly raise the advisability of giving consideration to such a course. There was no evidence before us of any consideration of any such course. 63 Having regard to those principles and considerations, I am unable to see that any matter has been advanced which would have the effect of precluding a trial judge from rejecting the interviews when tendered in evidence arising from the particular circumstances of the case, even if such a judge were to hold that there was proper and sufficient reason for the absence of such a person as is referred to in s.13. For my part, I would conclude that the significant possibility test proposed by the Crown for the exclusion of the evidence has been met and I would further conclude, as I have already said, that in the event of exclusion, there was, in my view, a significant possibility that there would have been a different result.

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