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Aboriginal Law Bulletin (ALB)
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Ress, Neil --- "R v Graves and Others (Murder - admissibility of confessional evidence - juvenile accused - s. 81C Child Welfare Act 1939 (NSW) - role of legal adviser during police questioning of client)" [1981] AboriginalLawB 24; (1981) 1(2) Aboriginal Law Bulletin 6


R v Graves and Others

Murder - admissibility of confessional evidence - juvenile accused - s. 81C Child Welfare Act 1939 (NSW) - role of legal adviser during police questioning of client.

R v Graves and Others

Supreme Court of N.S.W. at Parramatta (Roden J)

7 July 1980

Casenote by Neil Rees

In the course of a murder trial, objection was taken to the admissibility of statements alleged to have been made by one of the accused, Whitton, a 15 year old Aboriginal boy. A voir dire was held to determine whether evidence of a conversation between Whitton and Det. Sgt. Conwell at Darlinghurst Police Station, and a formal record of interview, could be admitted into evidence.

When the conversation between Det. Sgt. Conwell and the accused took place the only other person present was a police officer involved in the case. The prosecution evidence was that the accused received the standard caution and was then asked whether he was involved in the death of the deceased, to which he replied, 'Yes. But I didn't kill the lad'. The accused then admitted to hitting the deceased with a bottle and related further details of the incident. The conversation concluded after Det. Sgt. Conwell stated to the accused, 'I think we better wait till your mother arrives before we go any further. Also from what you have just told me and from my enquiries you will be charged in connection with the man McAuliffe [the deceased]. Do you understand that?' The accused replied, 'Yes, sir'.

The Crown submitted that even though none of the persons referred to in s. 81C of the Child Welfare Act 1939 was present at the time of the conversation, there was no breach of the section and hence no reason to render the evidence inadmissible, Roden J rejected the evidence. He stated -

It is clear that at the time when the conversation took place steps had been taken to arrange for the accused's mother to be present. Indeed, the later evidence discloses that no formal interview was embarked upon until the accused's mother and others, including two legal advisers, had arrived. Within the terms of the Act I am 'satisfied that there was a proper and sufficient reason for none of the persons referred to in sub-pars. (i), (ii), (iii) or (iv)' having been present. It would render the provisions of the section virtually off no effect if one were to endorse the practice of sending for the parents off a child or

young person inthat situation and then immediately embarking upon theinterrogation of that child or young person without waiting at least a reasonable time for the arrival of the parents. It may well be that if prior to the arrival of the parent or other person a statement were volunteered it would be proper to admit such statement into 'evidence. In the present case, as can be seen from the evidence which I have quoted, it cannot be properly said that the statement attributed to this accused was volunteered. It did follow a question. The question, referring to information that the accused was concerned in the death of the deceased was, 'Is that correct?' The answer was, 'Yes. But I didn't kill the lad.'

Subsequently, he elaborates upon that answer when told that it was 'a matter for himself whether the accused told his story before the arrival of his mother. I am of the view that there are two matters which call for the exercise of my discretion to exclude this material. They are as follows:

1. In all the circumstances I do not regard it as sufficient to tell a child or young person - and particularly a child - that it is 'a matter for himself. The object of the Act is to provide him with certain protection, and that protection is of little or no value to him if he is required to make his own decision in the absence of those who, if present, might advise him. 2. If this accused in the circumstances felt that there was some urgency about giving his explanation, that feeling in my view could be attributed in no small measure to the answer which he had already given and to which I have referred, an answer which in my view ought not to be admitted into evidence as it was given in response to a question which in my view ought not at that time to have been asked.

Section 81C of the Child Welfare Act provides for a statutory discretion in addition to the general discretion to exclude evidence in criminal trials, so that I ought not to admit the evidence unless I am not only satisfied that there was a proper and sufficient reason for the absence of parents or other persons but also satisfied that 'in the particular circumstances of the case the statement - . should be admitted in evidence in those proceedings.' I am of the view, for the reasons already stated, that the statements here attributed to this accused ought not to be admitted in evidence, and accordingly I propose to exclude that evidence pursuant to the provisions of s. 81C of the Child Welfare Act.

As must be clear from what I have said, had I not been of the view that that exclusion was warranted by the provisions of that. section, I would still have excluded the evidence in the exercise of my general discretion.: .. , . - ,

. The accused's solicitor was present during part ,of, the formal interview. After the fourth question,was asked.the solicitor,r made, signs., to the accused

indicating that he should not answer the question. The accused then stated, 'I don't want 1o say' nothin ." Further questions were asked and the solicitor continued to give signals to the accused, who nevertheless answered the questions. The solicitor sought a further opportunity to advise his client and he was eventually replaced by the accused's mother at the insistence of the police. The trial judge excluded the record of interview. He stated -

I can understand a police officer taking the view that when he is interviewing a person who is a suspect or a person about to be charged he does not wish to have his interview interrupted, and indeed there may well be circumstances in which such interruptions would themselves constitute an offence. However, persons are entitled to the benefit of legal advice when in the position in which this accused then was. The inference is clear that he had been given advice not to answer questions, and the answer to question 4 satisfies me that at that stage it was the accused's intention to act in accordance with that advice. It is my view that fairness to this accused, bearing in mind in particular his youth, demanded that after the answer to question 4 there be no further questions, at least without an. opportunity provided for further advice and a further consideration of his position. It seems to me to be an odd state of affairs to have a law which in effect requires that permission be given, if that is wanted, for a duly qualified legal practitioner to be present during an interview such as this, and for the position to be that if he wishes to give advice during the course of the interview he must do so by way of signs or signals which may or may not be understood. It is perhaps even stranger if the position is that the law provides that there be an opportunity for a young person or child to have such an advisor present, yet he is to be excluded if he seeks to give advice.

I have said elsewhere that the position of police officers interviewing suspects in this State is extremely difficult by reason of what I regard as a thoroughly unsatisfactory state of the law. In New South Wales there is none of the relative certainty provided in England by the Judges' Rules; a series of decisions which have in turn rendered those rules irrelevant, sought to replace them with Police Commissioner's Instructions, and then in turn made those instructions of little or limited relevance, leaves in my view a totally inadequate set of guidelines. When I look at questions 8, 9, 10 and 11 in this record of interview, I seeevery indication of what I regard as complete fairness and an absence of pressure from the questioning that was going on. Having regard to the steps that were taken, it was clearly the intention of the officer concerned to see that this accused had the full protection which the law, intends that he should have. Bearing in mind Det.. Sgt. Conwell's evidence concerning the particular legal adviser who was present, with the accused, it

may well be that his conduct was such as would cause any police officer in Det. Sgt. Conwell's position to feel extremely frustrated. But be that as it may, I am concerned with the question of fairness as it affects this particular accused, and having regard to his age and his background and his answer to question 4, I believe that he ought properly to be regarded as a person whoo on advice did not wish to answer questions, who was then deprived of continued advice from the source from which that advice had no doubt come, and in the circumstances I propose to reject the evidence of the formal interview as well as that of the earlier conversation.

N. R.


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