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Evidence Speech 2 - ...
Evidence Law (LLB303)
Queensland University of Technology
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Advocacy Speech
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Introduction Your Honour if it pleases the court, my name is Muzira initials PM. I appear on behalf of Darren Selders a 14-year-old Torres Strait Islander from Townsville. My client is less than 17 years old and under schedule 4 the Youth Justice Act and other legislation is classified as a child. My client has been charged with nine counts of burglary under section 419 of the Criminal Code and one count of stealing under section 391 of the Criminal Code. You Honour before I begin as the offense took place in Qld, therefore Qld legislation applies pursuant to section 79 of the Judiciary Act.
Submissions Your Honour, the conduct of the officers and the circumstances the evidence against my client was established, are irregular. Your Honour, I submit that this irregular conduct enlivens the courts' discretion under section 590AA(2)(e) of the Criminal Code to set aside the Crown’s evidence as inadmissible. I submit that the Crown's evidence obtained from questioning my client upon his arrest and subsequently in an interviewing should be inadmissible under the courts' discretion for firstly, for public policy grounds and secondly, for fairness grounds.
Submission 1 – Public Policy Grounds
Your Honour, firstly the officers when questioning and interviewing my client, failed to comply with the relevant provisions in the Police Powers and Responsibilities Act (PPRA).
The officers have breached section 418 of PPRA which requires that when questioning a relevant person for an indictable offense which the police must inform the person, they may contact a friend, relative or lawyer to confirm their whereabouts and ask them to be present for questioning. My client was not allowed to do so.
Furthermore, the officers also breached section 421 of PPRA which requires officers interviewing children before the interview occurs to allow the child to speak privately to their chosen support person who should also be present at the questioning. The support person for my client, 'Wendy', was supplied by the officers meaning they knew my clients' age but she was not chosen by my client nor was she present when he questioned in the car before the interview.
Additionally, the officers also breached section 431(1) of the PPRA and s 26(1) of the Police Powers Responsibilities Regulations which require the officers when engaging my client to caution him about his right to remain silent. The opposite occurred as my client was instructed by the social worker to answer all of the officer’s questions contrary to his right to silence.
Your Honour, the court in Bunning v Cross, outlined factors to consider when exercising the public policy discretion. Applying these factors to my client’s case it is indisputable that the cogency of the Crown's evidence is high; however, it is unlikely the repeated illegal and prolonged conduct exhibited by officers when gathering this evidence resulted from a genuine mistake. This diminishes its probative value due to the repeated breaches of statutory provisions. There was no urgency required to obtain the evidence, and arguably, the PPRA was established to prevent such conduct.
Your Honour the court in Crown v Day highlighted, and I quote the "important public interest in the protection of the individual from unfair treatment should prevail because to do otherwise could give encouragement to flaunt the law to those officers whose task it is to uphold the law."
Your Honour, I submit given the overwhelming disregard of the law by the officers in question that the court exercises its discretion and deem the evidence inadmissible on public policy grounds. . Submission 2 – Fairness Discretion
Your Honour, I request on the basis of fairness that the Crown deem this evidence inadmissible.
Summary
In summary Your Honour I submit that to admit evidence that has been gathered with the blatant disregard of laws created to protect the public and the most vulnerable would go against public policy and set an unsavoury precedent.
Furthermore, I submit that the exclusion of the evidence against my client should occur based on the fairness discretion given his gratuitous concurrence, which given Townsville's large indigenous population the officers should have been aware of.
Evidence Speech 2 - ...
Course: Evidence Law (LLB303)
University: Queensland University of Technology
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