Collins, Ann --- "R v R (A Minor) (Police refusal to allow legal representative access to a client)" [1991] AboriginalLawB 24; (1991) 1(49) Aboriginal Law Bulletin 21

• R V R (A Minor)
• Police Refusal To Allow Legal Representative Access To A Client
• Subsequent Action

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R v R (A Minor)

Police refusal to allow legal representative access to a client

Children's Court Townsville: Brennan SM

July 5th, 1990

Casenote by Ann Collins

An appointment was made to interview he defendant, an Aboriginal child, in the presence of a representative from the Aboriginal Legal Service (ALS) at 2pm on April 23, 1990. The father and the child arrived early and it was suggested to them by the interviewing officer that the interview commence, however the father responded that he was still waiting for a representative from the Legal Service. Shortly after 2pm, when no-one had arrived from the Legal Service, the father agreed for the interview to commence.

Mr Vincent Bin-Dol, a field officer for the ALS, arrived at the police station just after the child and his father left the foyer to go into the interview room. A request to the officer in charge, Sergeant Pennisi, to speak to the interviewing officer was denied. Despite Mr Bin-Dol identifying himself as a representative of the ALS and further informing Sergeant Pennisi that the interviewing officer was expecting him, the sergeant refused Mr Bin-Dol permission to attend the interview.

The Prosecutor submitted to the court that Mr Bin-Dol was merely a field officer with the Legal Service and not a solicitor and that he was accordingly not entitled to be present at the interview.

At the trial Mr Brennan SM exercised his discretion to exclude all material contained in the record of interview, as a result of the police conduct in refusing Mr Bin-Dol permission to advise his client and sit in on the interview. It was held that the circumstances made it unfair to the child for the record of interview to be admitted into evidence and charges against the child were dismissed.

Subsequent Action

A letter of complaint was sent to Superintendent Graves of Townsville Regional Police headquarters and a copy was sent to the Criminal Justice Commission (CJC). The CJC then investigated the matter to determine whether any action should be taken against Sergeant Pennisi in accordance with the Criminal Justice Act 1989-90.

The Commission declined to take any action against Sergeant Pennisi as his actions did not amount to a breach of the general instructions in the Police Manual given that Mr Bin-Dol was not a solicitor. However, the CJC advised the Aboriginal Legal Service that it was:

"Clear that the existing general instructions did not accurately reflect the intention of the Judges Rules."[1]

The Criminal Justice Commission forwarded the following recommendations to the Police Commissioner:

1. That the general instructions be amended so that the right of a person "at any stage of an investigation to be able to communicate and consult privately with a solicitor",[2] be extended to any legal representative, whether or not they are qualified to practice as a solicitor or barrister.

2. That the following amendments be incorporated in the Police Instructions:

• where practicable, Aboriginal and Torres Strait Islanders who come within the category of persons under disability will be questioned in the presence of a solicitor or other legal adviser or a person concerned with the welfare of those races;
• where this is not practicable, any person will be questioned in the presence of an independent adult person in whom the person being questioned has confidence and by whom he feels supported and who can act as an interpreter if necessary;
• the questioning must be conducted under conditions whereby the person being questioned is not oppressed or overborne by condition, circumstance or person.

The common law makes it clear that Principle C of the 1964 English Judges' Rules should be strictly followed in Queensland (see R v Borsellino [1979] Qld R 507 and R v Hart (1979) Qld R 8). Principle C provides that:

"Every person at any stage of the investigation should be able to communicate and consult privately with a solicitor. This is so even if he is in custody provided that in such a case no unreasonable delay or hindrance is caused to the process of investigation or the administration of justice by his doing so."

The police instructions which have been formulated as a consequence of legal decisions should also be strictly followed.

The Townsville Aboriginal and Islander Legal Service has been unsuccessful in obtaining from the Queensland Police Service a copy of the General Instructions. Correspondence requesting such information has been met with a general precis of the rules or the alternative response that it would be:

"totally inappropriate to place copies of the existing Manual for public reference at this time as the current Manual would provide an incomplete picture of the Queensland Police Service Instructions, and may in fact be misleading without being read in the context of other policy and procedural matter used within the Service."[3]

The Police Commissioner did, however, indicate that once the current review is complete and a single document is produced that such a document would be "appropriate and available for public access"[4]; we hope that the revised document will incorporate the recommendations of the Criminal Justice Commission and further, and perhaps more importantly, that persons will be prosecuted for non-compliance with such instructions.

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[1] Correspondence Criminal Justice Commission dated 10th October, 1990.

[2] Principle C of 1964 English Judges' Rules.

[3] Correspondence Queensland Police Service from the Policy Research and Evaluation Unit dated 17th March, 1991.

[4] Correspondence Queensland Police Service from the Policy Research and Evaluation Unit dated 17th March, 1990.