Collins, M. v The Queen

[1980] FCA 88

Re: MARK COLLINS; KEVIN STUART; JOYLEEN WILLIAMS and JOSEPHINE WOODS
And: THE QUEEN
Nos. NTG 23-25 and 27 of 1979
Criminal law
31 ALR 257

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.
Muirhead J.
Brennan J.

CATCHWORDS

Criminal law - Evidence - Murder - Interrogation of young Aboriginals while under arrest - Re-enactment - Photographs - Claim custody unlawful and that police neglected Anunga Rules concerning prisoner's friend and method of administering caution - Whether confessions voluntary - Whether confessions should be excluded in the exercise of discretion - Whether adequate directions to jury concerning agreement to commit a crime and withdrawal therefrom.

Police and Police Offences Ordinance, sub-s. 34 (1).

HEARING

SYDNEY

#DATE 20:6:1980

ORDER

1. The appellants' respective appeals against conviction be dismissed.

2. The appellants' respective appeals against sentence be stood over generally.

3. All parties have liberty to apply.

JUDGE1

The facts are set forth in the reasons for judgment of Muirhead J. and Brennan J. I shall not repeat them, except so far as may be necessary in discussion.

Each of the appellants, Mark Collins, Kevin Stuart, Joyleen Williams and Josephine Woods, was represented by Counsel at the trial and on the appeal. On the appeal the question raised was whether confessions by the appellants which took the form of a re-enactment accompanied by photographs were rightly admitted at the trial. The main argument on appeal was that each confession should have been rejected on the ground that it was not voluntary or, that if it was voluntary, the learned trial Judge should have excluded it as a matter of discretion.

Voluntariness

Before a confession may be admitted in evidence in a criminal trial, it must be proved by the Crown on the balance of probabilities, that it was voluntary (Wendo v. The Queen (1963) 109 C.L.R. 559). This means substantially that it has been made in the exercise of the person's free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary. But it is also a definite rule of the common law that a confessional statement cannot be voluntary, if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made. An inducement may take the form of some fear of prejudice or hope of advantage exercised or held out by the person in authority (McDermott v. The King (1948) 76 C.L.R. 501 at p. 511; The King v. Lee (1950) 82 C.L.R. 133).

The learned trial Judge, after a lengthy hearing on the voir dire extending over some weeks, held that the confessions were voluntary. In my opinion it has not been shown that he misdirected himself in any material respect or that his decision was wrong.

Stating the matter in a summary way, it was put to us on behalf of Mark Collins that the interrogation at Huckitta Station was unfair. It was submitted that it was conducted while Mark Collins was being subjected to false imprisonment; in breach of the requirement of notice to the Director of Welfare under Standing Order 34 of the Northern Territory Police Force; in breach of the precautions in dealing with children suggested by common sense and the authority of The Queen v. C. ((1976) Qd.R. 341) and The Queen v. M. ((1976) Qd.R.344); in breach of the requirement to notify as soon as practicable after arrest the Aboriginal Legal Aid Service (Circular Memorandum No. 11 of 1975 of the Northern Territory Police); in breach of the Anunga Rules (The Queen v. Anunga (1976) 11 A.L.R. 412) relating to the provision of a prisoner's friend and also relating to the giving of an appropriate caution and ensuring that the caution was understood. It was also pointed out that Mark Collins was taken from Hart's Range Police Station to Huckitta Station in custody and without being told why he was being taken there; that he was a child and an Aboriginal who would not readily understand or feel able to exercise his right to remain silent. It was submitted that, having regard to the cumulative effect of these matters, the trial Judge was in error in holding he was satisfied the confession of Mark Collins was voluntary.

The list of complaints is formidable. They were put at some length to the trial Judge but at the end of the day he held he was satisfied that the confession by Mark Collins was voluntary. At the time when the police and Mark Collins engaged in the re-enactment, the accused was in the circumstances plainly vulnerable to pressure. The question was whether he was able to exercise a free choice to speak or to remain silent; whether his will was overborne. The evidence was all one way that there was no overt duress, intimidation, or undue pressure. There was no inducement held out by any person in authority which might have led Mark Collins to entertain a fear of prejudice or hope of advantage. A caution was given. This was heard by him in English and in the appropriate Aboriginal language and apparently understood. The procedure laid down in the Anunga Rules of asking him to tell the police what was meant by the caution, phrase by phrase, and of not proceeding with the interrogation until it was clear that the accused had apparent understanding of the right to remain silent was not followed. This was a matter to be taken into consideration, but in the end it was for the trial Judge to decide on the whole of the evidence given on the voir dire whether the Crown had established that the confession was made in the exercise of a free choice. It is true that all the accused were Aboriginals and very young and were, as I have said, at the time vulnerable to pressure. It is also true that the evidence, even apart from the re-enactment, relating to their actions at Amoonguna and afterwards demonstrated some degree of self-reliance and initiative, if not cunning. During the long period of the voir dire, they were present in court under the observation of the trial Judge. Tape recordings taken while they were being interviewed were listened to by his Honour, although these did not get into evidence before the jury since he rejected them.

It appears to me it was open to the trial Judge to hold that no pressure was in fact exerted on Mark Collins and that he spoke at the enactment in the exercise of a free choice. His Honour concluded the confessions were voluntary. I do not consider he was in error in doing so.

A subsidiary point was raised that there was no specific caution regarding the taking of photographs. In my opinion, the photographs, which were still shots explanatory of various aspects of the re-enactment, stand or fall on the question of admissibility with the confessional material.

Counsel for the other appellants adopted the arguments put by Counsel for Mark Collins, with some additions.

Thus, in the case of Kevin Stuart it was argued that because the others had already taken part in a re-enactment when Kevin Stuart was called upon to do so, there was additional pressure upon him. In the case of Josephine Woods evidence concerning her retarded mentality was stressed. It was also submitted on behalf of Josephine Woods that the manner in which the caution was administered to her in her Aboriginal language amounted to an inducement and that her confession should be excluded for this reason as not being voluntary. The evidence on this is set forth in the reasons for judgment of Brennan J. It does not appear to me that there is any substance in the submission.

In the result, I am not persuaded the learned trial Judge was in error in holding all the confessions were voluntary.

Discretion

Even though a confession is held to be voluntary, there still resides a discretion in the trial Judge to exclude it, if it has been obtained by "improper" or "unfair" methods. The question in considering the exercise of the discretion is whether in all the circumstances it would be unfair to use the statement against the accused (The King v. Lee (1950) 82 C.L.R. 133). It was strongly argued before us, as it was before the trial Judge, that the confessions in the present case should in any event have been excluded in exercise of this discretion.

The difficulties arising from the exigencies of time and place faced by the police in performing their duty of investigating a felonious death are appreciated. However, I would not wish anything I say to weaken the force of the rules, which have been laid down to be observed by the police in the interests of fairness. I am of opinion that the police failed to give due observance to these rules and treated them too lightly. Nevertheless, all relevant matters appear to have been put to the learned trial Judge and to have been considered by him. The discretion is one which the law vests in him. I am not persuaded that he has in any respect misdirected himself. He does not appear to me to have allowed extraneous or irrelevant matters to guide or affect him, or to have mistaken the facts or failed to take into account some material consideration. In my opinion the Court should not interfere with his exercise of his discretion.

Withdrawal

A further argument put on behalf of Joyleen Williams and Josephine Woods was that the learned trial Judge had failed adequately to direct the jury as to the law relating to acting in concert and withdrawal from an agreement to commit a crime. Reference was made to White v. Ridley (1978) 52 A.L.J.R. 724. The evidence on this point suggested that while each was a party to a discussion about shooting the old man, each later told Mark Collins not to shoot him. His Honour dealt with this matter in his summing up to the jury. He explained the onus resting upon the Crown of proving beyond reasonable doubt the entry into the agreement to shoot the old man, the remaining a party to that agreement and the carrying out of it. His Honour referred to submissions of the Crown and of Counsel on the question of withdrawal. There was no error in law with the directions which he gave. In my opinion there is no substance in the argument.

In the result, in my opinion the appeals should be dismissed.

JUDGE2

On 17 August 1979 after a very lengthy trial at Alice Springs in the Northern Territory, the four appellants were convicted of murder by verdict of a jury. They have all appealed to this Court against the judgments of conviction.

The jurisdiction of the Federal Court to determine appeals against such conviction was recently dealt with in Duff v. The Queen (Unreported - Delivered 6 December 1979) and requires no further mention.

BACKGROUND

Huckitta Station lies about 175 miles north east of Alice Springs, a remote area of this country.

On the morning of Sunday, 31 December 1978, two men were at the homestead, one, Quinton Webb, a part owner of the property, and a younger man, a station hand by the name of John Ransome.

At about 10.30 a.m. a Ford Falcon panel van arrived. This contained the four appellants and one, Janice Edwards. It was driven by the appellant Stuart, a part aboriginal youth, 13 years of age. The other appellants Mark Collins, 12 years of age, Joyleen Williams, 14 years of age and Josephine Woods, 24 years of age, were passengers. They and Janice Edwards, a woman 28 years of age, who was in the van, were aboriginals who had travelled overnight from near Alice Springs.

They sought and obtained petrol, supplied by Ransome and they continued on their journey. Soon after, they returned, Edwards driving the vehicle with two flat tyres, one of which was damaged. They sought assistance. They were told a new tyre and tube were required. Ransome did what he could to help them and he spoke by scheduled radio link to Mount Riddock Station at 12.30 p.m. It is evident they were informed as a result of this call that the tyre would be sent out that evening. This, so far as the appellants were concerned, involved a substantial delay to their journey, a delay, bearing in mind their activities the previous night, they probably had good reason to avoid. The appellants, who were all strangers to Quinton Webb and Ransome, waited at the station. The situation was quiet and normal. The appellants at times grouped together and at times wandered around singly or in pairs.

At about 1.00 p.m., Ransome and the woman, Edwards, who had met previously, left the homestead. They returned about 45 minutes later to find the appellants had departed. Janice Edwards drew Ransome's attention to a pool of blood near the house. Investigating further, Ransome found Webb dead in the kitchen.

The panel van in which the party had arrived was still there, but a Toyota, a four-wheel drive vehicle used on the station - and its ignition key which was kept inside the house, were missing. Blood stains inside and outside the house suggested, as was later proved, that Webb died from a bullet wound.

With some difficulty due to defective equipment, Ransome eventually made radio contact in a round about way with the police. Constable David Picker, the only police officer stationed at the Harts Range Police Station, about 35 miles from Huckitta, arrived at about 6.30 p.m. He spoke to Janice Edwards who named those with whom she had arrived that morning and told him something of their earlier activities and movements, information which was confirmed by subsequent investigation and which was basically common ground at trial.

The appellants and Edwards had, during the night of Saturday, 30 December 1978, broken into a store and dwelling at Amoonguna - an aboriginal settlement not far to the east of Alice Springs. They stole various items including a Winchester .22 rifle, jewellery, money and food. The van was taken without the owner's consent and after being driven around Alice Springs, the party proceeded up the Plenty Highway, petrol being obtained at Yambah Station en route. It was later proved that the bullet which killed Webb was fired from the stolen Winchester.

Picker arrested Janice Edwards for the offence of illegal use of the panel van. She was not then regarded as a murder suspect. Her subsequent arrest on a charge of murdering Webb followed some answers she gave when a police officer was later taking a routine statement from her which suggested she may have been a party to Webb's killing, having deliberately lured Ransome from the scene. She was tried for murder jointly with the appellants and she was acquitted by the jury.

It was determined with the aid of Janice Edward's tracking abilities that the Toyota had been driven from the Station in the general direction of Queensland, still apparently heading away from the appellant's homes at Amoonguna.

An hour or so later, Constable Sims and Constable Cox arrived from Alice Springs by light aircraft. A rudimentary investigation then indicated that Webb had probably been shot outside his dwelling, had made his way inside, losing blood as he did so, and he died on his kitchen floor.

Naturally enough, the facts led to immediate suspicion that the appellants, or one or more of them, were involved and Constables Picker and Sims set out to find them.

After travelling about 45 km they stopped a vehicle travelling towards Huckitta from Queensland and driven by the witness, Harold Lankin. The appellants were found in the vehicle. Lankin had picked them up some distance to the east. The vehicle stolen from Huckitta Station had broken down and the appellants continued their journey for some distance on foot, leaving the vehicle in the centre of the road. Lankin, after picking them up, stopped to remove the vehicle to the side of the road, noting its number as he did so. The weather was hot, the appellants were tired and thirsty and Lankin gave them water. The rifle, with which Webb was shot, was still in the group's possession and was recovered by Constable Picker as he removed them from Lankin's vehicle. He gave evidence that each appellant admitted illegal use of a vehicle (or vehicles) and they were promptly arrested and placed in the police vehicle. From that time they were in custody.

The police and the appellants then proceeded east to the abandoned vehicle and it was noted that it had been "hot wired", i.e., the ignition leads bared and manually joined to effect ignition without the use of the key. They then returned to Huckitta Station where by this time three other police officers had arrived, including Sergeant Chung, a member of the C.I.B., and Sergeant Sandry, a member of the forensic section.

The appellants and Janice Edwards were then conveyed to the Harts Range Police Station at about 11.15 p.m., where they were charged with illegal use of motor vehicles and placed in the two available security sections of the basic police station complex, males in one section, females in the other. They were supplied with bedding.

At about 12.45 a.m. on New Year's day, 1 January 1979, Constable Picker and Sergeant Chung woke the appellants and had a brief conversation with them in English when they were asked questions concerning their families, friends and dialects. It was common ground that the appellants could all converse in English and in fact, this was Kevin Stuart's sole language. As a result of that conversation the police correctly understood that Collins, Williams and Woods spoke Aranda dialect and wrongly understood that Edwards spoke Warlpiri. The information they had already gleaned from Janice Edwards and from Lankin was no doubt sufficient to indicate that the appellants lived at or about Amoonguna.

Probably as a result of those conversations, Constable Lloyd, a police officer on duty at Alice Springs police headquarters, was despatched to Amoonguna where he made certain enquiries and where he conversed with the father of Joyleen Williams who was an important person at Amoonguna and president of the management committee of Central Australian Aboriginal Legal Aid Service.

At about 9.00 a.m. the following morning, 1 January 1979 - another hot day - the appellants and Janice Edwards were taken to Huckitta Station. The same morning the police drove one Bobby Armstrong, an aboriginal who speaks Aranda and Dick Jungala, an aboriginal who speaks Warlpiri, to Huckitta.

After experiencing some mechanical trouble the vehicle arrived. Monday, 1 January 1979, was a public holiday. The Alice Springs court office was closed, no sittings of the courts being scheduled. There was a conflict of evidence as to the police activities at Huckitta during the morning which assumed importance. It is common ground that the appellants and Janice Edwards were released from the police vehicle upon their arrival and they were allowed to remain together seated as a group under a tree in the shade. Police enquiries continued and the body of Quinton Webb was removed.

During the afternoon each of the appellants was asked to tell and to demonstrate to the investigating officers what had occurred the previous morning when Webb was shot. Each appellant was cautioned and the caution was interpreted to them in Aranda by Bobby Armstrong. Each, it was said by the police, agreed to participate. They told and showed what had occurred, each appellant being taken from the group during the process, but being at least sporadically in view of the others including the civilians at the station. Photographs were taken which served clearly to explain the appellants' indications to the police and these were in evidence. The police did not specifically seek the permission of the appellants to take these photographs, nor was any reference made to the fact that photographs would be taken when the cautions were allegedly administered. Bobby Armstrong, the interpreter or "prisoner's friend", accompanied each appellant and the police during each re-enactment. Collins admitted shooting the deceased and he demonstrated how it was done, taking deliberate aim at the deceased who was sitting on a tank stand, reading. The others made admissions which were of importance to the Crown in its submission to the jury that the others, including Janice Edwards, acted in concert, that the shooting was a planned affair. And so it was, that at the end of the day, Monday 1 January, the appellants had described to the police what occurred and the police at that stage had evidence which should have been sufficient for them to determine future steps.

There can in my view, be no doubt that the circumstantial evidence, the discovery of items such as the cartridge case found where Collins allegedly demonstrated the shooting, tests of the rifle and the other forensic evidence, were wholly consistent with the matters told and indicated to the police by the appellants.

The trial judge admitted evidence of the demonstration. The appellants challenge his finding about those demonstrations arguing that they were but a farce, the culmination of rehearsals carried out earlier that day which were part of the "softening up" process initiated by the police.

On the evening of 1 January, the appellants were returned to Harts Range Police Station and during the following two days they were kept there whilst detailed interviews were conducted and recorded. No court was convened at Harts Range and the delay in bringing the appellants before a Justice was substantial. The trial judge in the exercise of his discretion excluded from evidence the records then taken, the tapes then recorded. He gave reasons for that decision. He found that the admissions then made were voluntary but he excluded them in the exercise of his discretion, mainly because in his view following the investigations conducted at the scene of the killing on 1 January, he considered the appellants' continuing detention without being brought before a Justice of the Peace, not only unlawful, but unlawful to an extent which justified the exclusion of those otherwise relevant, probative and voluntary confessions.

I have mentioned this as a matter of history. The primary issue contended by the appellants upon the appeal was that the trial judge erred in admitting the "re-enactments" of 1 January as the evidence did not support his findings that they were voluntary.

I have commented that after the re-enactments and their investigation on 1 January the investigating police officers had sufficient evidence to determine future steps, indeed by then, assuming the veracity of the re-enactment they could have had little doubt as to what had occurred. But it was equally relevant in my view for the trial judge to take into account how little was known that morning before the re-enactment took place. Many questions remained. Was the deceased's death an accident? Were the appellants or any of them present when the shooting took place? If so, did one or another shoot Webb and if so, why? Where were all the appellants at the time Webb was shot? Was there evidence of conspiracy, concerted action? If the latter, did the joint plan survive until the shooting? Which rifle was involved? What, if any motive was there? Were any other visitors to the homestead involved? Not only did such questions arise, the solution to those questions was an urgent requirement. The objective facts first found by the police suggested Webb had been shot, possibly murdered. The events took place during the New Year holiday period, in a lonely area of the Territory, a long way from the nearest centre, Alice Springs, serviced by radio schedules, not by telephone. People living in such an area are vulnerable to ill-intentioned visitors.

Of the five aborigines arrested, two were adult women, three were juveniles. Where lay the guilt, if any? The interests of justice and, at the time, for all the investigating officers knew the interests of the appellants, or one or other of them, demanded that the investigation proceed without delay. The appellants were the obvious persons to turn to for information as the police must have been quickly aware that neither Edwards nor Ransome could assist beyond relating what took place before their departure and what they found on their return. It is necessary to mention this as the main challenge concerning the police conduct on 1 January relates to their action in taking the appellants from Harts Range Police Station to the nearby Huckitta Station. It was said the only proper and lawful course was to remove them to Alice Springs where they could be brought before a Justice of the Peace upon the charge of the illegal use of motor vehicles and where they could utilise the services of the Central Australian Aboriginal Aid and, in the case of the juveniles, the protection of the Director of Child Welfare in that centre. But it cannot be overlooked that the primary responsibility of the police that day was to investigate the killing of Webb - and to promptly investigate his death. It is but common sense to observe that provided the safeguards the law has developed to ensure fair dealing with suspects are observed, a prompt investigation is likely to produce the most accurate and valuable evidence and is most likely to sheet home responsibility where it lies.

In the present case for instance, the discovery of the cartridge case ejected by Collins where he indicated he fired the fatal shot, is but an example.

TRIAL AND VOIR DIRE

After their arrest on charges of murder, following the interviews which took place on 2 and 3 January (ultimately excluded from evidence), the appellants and Janice Edwards were committed for trial on charges of murder. At trial before a jury at Alice Springs each accused was separately represented by counsel. The trial lasted from 12 June 1979 until 17 August 1979.

Most of the court's time was devoted to hearings on the voir dire when the admissibility of the "re-enactments" referred to and the subsequent records of interview were challenged. As essential voluntariness was under challenge the trial judge quite rightly directed that the Crown should carry the onus of proof of voluntariness and should begin. The voir dire hearing relating to the admissibility of the appellants' admissions commenced on 14 June 1979 and concluded on 2 August 1979. His Honour then ruled that the records of interview would not be admitted, but evidence of the re-enactments could be introduced. He gave short extempore reasons for rejecting evidence of the interviews and he stated he would give reasons for his decision as to the "re-enactment" in due course. These were delivered after the completion of the trial, a practice not infrequently followed in criminal trials when one, as trial judge, is concerned with getting on with the trial and minimising inconvenience to the jury. Furthermore, whilst the trial is in progress the less said by the judge as to credibility of witnesses, the better.

I will deal later with the issues on the voir dire examinations, but there were two matters of interest. The first, clearly of some significance to the trial judge, was that after the days and days of cross examination of the police officers and of the unfortunate aboriginal Bobby Armstrong, recruited by the police as "friend" of the appellants, who identified with them by race and language, but not by clan or past association, not one of the accused gave evidence in the absence of the jury, of any lack of understanding of the right to silence, of any fear, hope, sense of oppression or confusion. They gave no evidence of being overborne, of speaking because they thought the policeman wanted them to speak. Nor did any appellant give evidence to support the criticisms of counsel as to the unsuitability of Bobby Armstrong as a "prisoner's friend", nor to support their counsel's submissions that the re-enactment during the afternoon of 1 January followed a rehearsal in the morning.

The second matter is that the cross examination of the Crown witnesses upon the voir dire was not restricted to the issues argued upon the appeal. It was far reaching - suggestions of abuse, humiliation and violence were put to the police, denied, and they fell by the wayside being unsupported by evidence. Wells J. stated in The Queen v. Williams 14 S.A.S.R. 1 at p.3 -

"But it should not be, as it sometimes is, assumed that the trial judge ought to have resort to such a procedure without strong reasons. The practice of directing a voir dire in appropriate cases must not lead to the supposition that counsel have an unrestricted right to a fishing expedition. Ordinarily, a trial judge will not allow a voir dire hearing simply at the request of counsel. It is within his discretion whether or not to do so, and for the exercise of the discretion there must be proper and adequate material before him. That material may be found in an explicit assurance by counsel for the defence that he intends to adduce certain evidence, or in some passage or passages in the depositions."

In the present case the trial judge, who at that stage was not to know what evidence, if any, would be called by the appellants, allowed the cross examination of counsel to range far and wide.

Eventually the trial concluded. Janice Edwards was acquitted and the appellants convicted of murder. They were not subject to mandatory sentences of life imprisonment in the Territory as s.6 of the Criminal Law Consolidation Act provides that where an aboriginal is convicted of murder "the Judge may impose such penalty, as having regard to all the circumstances of the case, appears to him to be just and proper." The trial judge sentenced all appellants to imprisonment for nine years and two months and directed they should each serve four years imprisonment before being eligible for parole. The appeals against sentence were withdrawn and in my view, wisely so. Fortunately, following a recent amendment to the Prisons Act (No. 155 of 1979) juveniles sentenced to imprisonment in the Northern Territory may now be placed in more appropriate institutions.

ADMISSIBILITY OF ADMISSIONS UPON
RE-ENACTMENT -
VOLUNTARINESS AND DISCRETION

Many, in fact most, of the submissions of counsel on questions relating to voluntariness, the exercise of judicial discretion and questions of arrest and detention had common factual basis. Collins, Stuart and Joyleen Williams were all juveniles. They all spoke English. Stuart, who was apparently reared main in Port Augusta, South Australia, spoke it as his sole language. Evidence was called on behalf of Josephine Woods to prove that though in years an adult, (24), she was intellectually retarded. Her appeal introduced some special elements.

If the finding that the re-enactments were voluntary has insufficient evidence to support it, as the Crown bears the onus of proof, this court will interfere, just as it will interfere if it is apparent that the trial judge applied the wrong principles in reaching such a finding. His finding that the participation of the appellants in the re-enactment was voluntary was a finding of fact. If that finding or decisions made in the exercise of discretion are plainly wrong, then this Court is compelled to interfere just as it will interfere if it finds that the trial judge wrongly exercised no discretion. But the error must be demonstrated by the evidence. The "court will not lightly interfere with the exercise of a discretion validly made by a court at first instance." (R. v. Austin (1979) 21 S.A.S.R. 315 at p. 319. Lord Salmon's words in Director of Public Prosecutions v. Ping Lin (H.L.) (1976) A.C. 575 at 605 define the role and duty of a judge in a criminal trial exercising such discretion, advert to the test of voluntariness and are a reminder of the advantages of the trial judge who, as a rule, gains much better insight and understanding than the transcript of evidence and argument later reveals to a court of appeal. In my view this is particularly so in a long and complicated trial and this was certainly in that category.

"It follows that a judge may allow evidence of an alleged confession or statement by an accused to go before the jury only if he is satisfied that the confession or statement has not been obtained in contravention of the principle laid down in the authorities to which I have referred. This is because of the risk that, unless the judge is so satisfied, to allow evidence of an alleged confession or statement to go before the jury might seriously prejudice the accused. Hence 'the trial within a trial'. The judge's decision is, in reality, a decision on the facts. He has to weigh up the evidence and decide whether he is satisfied that no person in authority has obtained the confession or statement, directly or indirectly, by engendering fear in the accused that he will be worse off if he makes no confession or statement or by exciting hope in the accused that he will be better off if he does make a confession or statement. If the judge is so satisfied, he may admit evidence of the confession or statement. If he is not so satisfied he must exclude it. The judge's task is to consider the evidence before him, to assess its implications and to decide the case on his view of that evidence in the light of the basic established principle. The somewhat pedantic approach which seems to have been adopted in some of the cases to which we have been referred should be avoided. These cases are of doubtful validity and of little, if any, value. The Court of Appeal should not disturb the judge's findings merely because of difficulties in reconciling them with different findings of fact, on apparently similar evidence, in other reported cases, but only if it is completely satisfied that the judge made a wrong assessment of the evidence before him or failed to apply the correct principle - always remembering that usually the trial judge has better opportunities of assessing the evidence than those enjoyed by an appellate tribunal."

In Cornelius v. The King (1936) 55 C.L.R. 235 Starke J. after observing the trial judge had refused to classify a confession as improperly obtained stated (p.240)

"There is ample evidence to support this conclusion. In my opinion, it is detrimental to the administration of criminal justice that such matters are investigated in this Court, and it would be highly mischievous if we substituted our opinion for that of the trial judge, without having any of the advantages already referred to, or the experience which he and the Full Court possess."

It is convenient in my view to deal initially with the trial judge's finding that the re-enactments during which photographs were taken were voluntary. His Honour said -

"For the reasons I have already indicated, I have reached the view that the participation of the respective accused in the re-enactments and their being photographed in the course of those re-enactments were shown to have been voluntary in the sense that they acted in the exercise of their free choice, were not overborne or intimidated or subjected to sustained or undue insistence or pressure."

His Honour correctly referred to the onus of proof resting on the Crown, the onus being "the probabilities" as enunciated in Wendo v. R. (1963) 109 C.L.R. 559. Later the trial judge commented in his reasons -

"I have found earlier in these reasons that the re-enactments by each accused were voluntary. There was no violence, hostility or offensive conduct by the police."

The appellants contend inter alia, that his Honour's reference to the reasons "already indicated" was erroneous or meaningless as he had not previously given any detailed reasons relating to the question of voluntariness. His Honour had made two previous rulings on the voir dire, the first on 20 June on the fifth day of the examination concerning the admissibility of a statement made by Janice Edwards. That finding appears at page 441 of the trial evidence and continues for ten pages. It was a detailed examination of the issues which arose in her case.

Many weeks later on 1 August, the trial judge gave succinct reasons for rejecting the subsequent records of interview and he admitted the evidence of the re-enactments (p.3064 of trial evidence). In so doing he deferred, on good grounds, his detailed reasons which were delivered on 12 September 1979, after the verdicts. It may be his Honour thought that he had said more previously on questions relating to voluntariness, but in view of his examination of the authorities and his specific reference to the well known words of Dixon J. in McDermott v. The King (1948) 76 C.L.R. 501 at 511 it cannot be suggested that he was either unaware of the principles or that he had misdirected himself. Reference was made to his finding that there was no "violence, hostility or offensive conduct by the police". The appellants submitted that he should not have been satisfied as to voluntariness, not so much because of overt acts, but because of more subtle and cumulative factors including the ages of some of the appellants, their race, other disadvantages and a host of other circumstances including their detention at Harts Range and Huckitta, their removal to Huckitta without explanation or choice and the facts of the re-enactments themselves. But it seems to me that his Honour had well understood these submissions. He said (p.336) -

"It was next argued that in relation to the re-enactments there was a lot of facts and circumstances which would have created a feeling of oppression on the part of the accused and the oppression would have been such as to overbear the will of the accused."

His Honour had by that stage of his reasons dealt specifically with many submissions which went to the "softening up" argument, the suitability of the "prisoner's friend", the absence of parents, the inadequacy of the cautions. I interpret the last quoted passage as indicating that his Honour took into account all the circumstances to which he was referred. Many of the factual matters and situations specifically dealt with by him went of course, to issues of voluntariness and to the exercise of discretion on fairness principles. Facts which may not intrude on true voluntariness frequently may, on their own, or cumulatively, result in exclusion of evidence in the exercise of judicial discretion.

On Collins' behalf (and these submissions applied to all appellants), it was submitted that the trial judge should have excluded evidence of the re-enactment (which included admissions and photographs of the demonstration) because it resulted from unfair interrogation, unfair because the appellants were subjected to false imprisonment. It was argued that the police should not have taken them in custody to Huckitta Station that morning, but should have conveyed them to Alice Springs to appear before Justices on the charges of illegal use for which they were arrested. If the true situation was that they were in custody because they were suspected of causing Webb's death, then it was said, and rightly so, that they could not be lawfully so held for purposes of interrogation. It was further argued the trial judge should have found the interrogation unfair because the police did not comply with the provisions of Police Standing Order 34 which provided that the Director of Welfare should be advised when a child is taken into custody and which made recommendations for interviewing a child "in his own home in the presence of -- parents." Nor, it was said, did the police ensure that the Central Australian Aboriginal Legal Aid Service was notified "as soon as practicable after arrest" and it was argued the interrogation was in breach of the rules laid down by the present Chief Justice of the Supreme Court of the Northern Territory in R. v. Anunga & Ors., R. v. Wheeler & Anor. (1976) 11 A.L.R. 412. On this aspect it was contended that the trial judge on the evidence could not have been satisfied that either the words of the caution, or the true right of silence thereby conveyed were understood - an argument which goes to voluntariness as well. The appellants contended his Honour in reaching his conclusion that the re-enactments were voluntary and in the general exercise of his discretion "undervalued" the cumulative police breaches and impropriety.

Mr Kelly submitted that the only interpretation open on the evidence was that it was a deliberate police choice, and an unlawful choice, to take the appellants to Huckitta on New Year's day, that thereby they deliberately breached provisions designed for the protection of children and aborigines in the hands of police.

In summary it was said that had the trial judge paid proper regard to these cumulative and unlawful acts, the only proper finding was that the evidence was obtained unfairly and "at too high a price" within the meaning of The Queen v. Ireland (1971-72) 126 C.L.R. 321. It was further submitted in effect that the trial judge had looked at the form rather than the essence or true philosophy of the rules or tests as to voluntariness, and that upon the evidence he could not have been satisfied that when the appellants spoke and explained the parts they played they did so truly in free choice, a choice made in the knowledge that they would not be prejudiced by silence, nor advantaged by speaking. In the absence of "detailed reasons" given by the trial judge it was said that we should review the evidence to ascertain whether it justifies his implicit findings that each appellant was given a choice which was understood and freely exercised.

In the course of appeal much was said as to the development of the law in Australia relating to voluntariness, the exercise of discretion in the "unfairness" realm, the considerations of fairness to the accused, and of the interests of the community in seeing that those who offend are brought to justice and that investigations are not unduly hampered.

These are considerations which may not, and generally do not, go hand in hand. Hence the need for discretionary decision. The foundation of the rules relating to admissibility of confessional evidence was not based upon matters of fairness in any sense of competition between the prisoner and the community. It was broad policy which did not interest itself in the efficiencies of investigation nor the need of bringing malefactors to justice. This broad policy as to voluntariness was strictly applied. It may be that in Australia, Wendo's Case (supra) which declared that the onus of proof of voluntariness resting on the Crown was upon the balance of probabilities rather than beyond reasonable doubt, has lessened the stringency of proof, (cf. R. v. Sartori, Gavin & Phillips (1961) Crim. L.R. 397). So also it may be that because of changes in economic and social views that words regarded in the last century as an "inducement" would not be so regarded today. (See, for example, R. v. Thompson (1893) 2 Q.B. 15.) But the policy has not changed and may still be enunciated in the traditional terms -

"By that law, (the law of England) to be admissible, a confession must be free and voluntary. If it proceeds from remorse and a desire to make reparation for the crime, it is admissible. If it flows from hope or fear excited by a person in authority, it is inadmissible".

per Cave J. in The Queen v. Thompson (above). Lord Summer in Ibrahim v. Rex (1914) A.C. 599 cited the principle - in the same basic terms as being "as old as Lord Hale" and referred to the burden of proof. In dealing with the issue - the response of a Sepoy soldier to his English commanding officer, Lord Summer said

"There was in the present case Major Barrett's affirmative evidence that the prisoner was not subjected to the pressure of either fear or hope in the sense mentioned. There was no evidence to the contrary. With Reg. v. Thompson (1893) 2 Q.B. 12 before him, the learned judge must be taken to have been satisfied with the prosecution's evidence that the prisoner's statement was not so induced either by hope or fear, and, as is laid down in the same case, the decision of this question, albeit one of fact, rests with the trial judge. Their Lordships are clearly of opinion that the admission of this evidence was no breach of the aforesaid rule."

In the passage referred to by the trial judge in McDermott v. The King (1948) 76 C.L.R. 501 at 511 Dixon J., when referring to the common law doctrine, stated. "This means substantially that it has been made in the exercise of his free choice". Here it is the appellants' contention that there can be no "free choice" without proof of true understanding of the right of silence and proof of a capacity to exercise the right. His Honour continued -

"If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary. But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made: per Cave J. in R. v. Thompson (1893) 2 Q.B.D. 12, at p. 17. The expression 'person in authority' includes officers of police and the like, the prosecutor, and others concerned in preferring the charge."

In that case Dixon J., after referring to the practice in England of requiring strict adherence to the Judges' Rules, distinguished the "imperative rules of law requiring the rejection of confessional statements unless made voluntarily and the so called discretion of the court to exclude evidence of such statements if the manner in which they were obtained is considered to have been improper". He went on to say -

"Here as well as in England the law may now be taken to be - that a judge at the trial should exclude confessional statements if in all the circumstances he thinks that they have been improperly procured by officers of police, even although he does not consider that the strict rules of law. . . require the rejection of the evidence."

In McDermott's Case, whilst there was no reference by any of the judges to the necessity or urgency of investigation nor to public policy as one of "the circumstances", in refusing special leave, reference was made to the "character" of the police interrogation and to the absence of insistence as factors which negatived "such a degree of impropriety as to require the exclusion of the testimony as to the prisoner's admissions", and in argument without doubt the "degree of impropriety" loomed large.

The trial judge commented after referring to the judgment of the High Court in The King v. Lee (1950) 82 C.L.R. 133 that the test as to fairness there expounded "includes an element of the public interest in the proper investigation of crime". He cited at length portion of that judgment in which the High Court approved the remarks of Street J. in R. v. Jeffries (1947) 47 S.R. (N.S.W.) at p. 311 et seq. This included the following passage -

"But it is in the interests of the community that all crimes should be fully investigated with the object of bringing malefactors to justice, and such investigations must not be unduly hampered. Their object is to clear the innocent as well as establish the guilt of the offender. They must be aimed at the ascertainment of the truth, and must not be carried out with the idea of manufacturing evidence or extorting some admission and thereby securing a conviction. Upon the particular circumstances of each case depends the answer to the question as to the admissibility of such evidence."

It is worth recalling an earlier passage in the joint judgment in Lee's Case (supra) (at p. 142) where their Honours paused to consider "the realities of the situation" confronting the police. They said -

"They were investigating a murder, and they were bound, as O'Bryan J. said, to make a full and complete investigation into the crime. However likely it may have seemed to them that they had found the guilty party or parties, they could not know to whom the actual guilt attached. They had evidence that each of the three had been absent from Kent's room at what might have been a critical time. The actual guilt might attach to any one or any two or to all three of the parties. All were under grave suspicion, but any one or any two might be innocent. The detectives were bound, before they preferred the most serious of all criminal charges, to see what, if anything, each suspect had to say about the events of the night."

It may be that some differences have developed in England and Australia since Dixon J. stated in McDermott's Case that the law in both countries was the same when dealing with statements strictly admissible but improperly obtained. See, for example, the speech of Lord Morris of Borth-y-Gest in Director of Public Prosecutions v. Ping Lin (H.L.) (supra) at p. 594.

"The task of the judge will be to apply the spirit and intendment of the rule. Without being anchored to any particular words he will consider whether the statement of an accused was brought about by some hope or fear held out or caused by someone who could be classed as a person in authority. The judge will be ruling on admissibility and not (primarily at all events) on any question as to the propriety of the conduct of someone who conducted an interview or asked questions or as to the propriety or impropriety of something said or done. The judge will be ascertaining the facts as to what was said in an interview and not (primarily at all events) inquiring as to the motives or intentions of the persons who conducted an interview.

In my view it is not necessary, before a statement is held to be inadmissible because not shown to have been voluntary, that it should be thought or held that there was impropriety in the conduct of the person to whom the statement was made. Whether there was or whether there was not, what has to be considered is whether a statement is shown to have been voluntary rather than one brought about in one of the ways referred to."

The distinction between true voluntariness and impropriety leading to confessions, otherwise voluntary, but inadmissible because of the techniques applied in gaining same and other "fairness matters" - is not so well defined. Impropriety may be a factor examinable in the issue as to essential voluntariness. Nevertheless the public interest test, the exigencies of the police investigation are, and must be, factors to be included and considered as a "circumstance of each particular case" referred to by Dixon J. in McDermott's Case (supra) at 513 and referred to by the High Court in Lee's Case (supra) at 151; not as a circumstance as to essential voluntariness because there can be no degrees of voluntariness but as a factor relevant to the exercise of discretion where propriety or fairness are in issue.

ADMISSIBILITY - (TRIAL JUDGE'S FINDINGS)

The evidence before the trial judge relating to the circumstances of the re-enactment was of importance. He found that the appellants "had a sufficient understanding of English to enable them to comprehend the questions being asked and had a good conceptual idea of what they were asked to participate in." His Honour had the advantage during the voir dire examination of listening to recordings of conversations of the appellants Williams, Woods and Stuart. The evidence satisfied him that the appellants regularly came into contact with white people. He commented that "they could not be described as being tribal people". He found they were cautioned, he found Bobby Armstrong, who spoke Aranda, was an appropriate parental figure, an appropriate interpreter, a person who was with the appellants throughout. It is implicit in his findings that the appellants were informed that they were not obliged to answer questions upon the commencement of the re-enactment. He found the police acted properly and he accepted the evidence of the police officers and Armstrong that "the accused did not appear nervous or oppressed". The trial judge in contrast to this Court had ample opportunity of assessing the credibility of these witnesses. The cross examination by five defence counsel of Bobby Armstrong, the aborigine asked by the police to act as prisoner's friend or interpreter occupies 204 pages of transcript during the voir dire examination, the cross examination of Sergeant Chung occupies 314 pages. His Honour rejected the submissions put to him that the re-enactment which commenced at 3.05 p.m. on the afternoon of the 1st January, was a sham, a culmination of a rehearsal early in the day, when he found the police were carrying out other investigations. He found as a matter of fact that the appellants' re-enactment and the admissions which then resulted were voluntary and in so finding there can be no suggestion that he misdirected himself as to the onus of proof, being bound by Wendo v. The Queen (1962-1963) 109 C.L.R. 573 to which he referred.

But it was argued that despite these factual findings as to the caution and other matters the trial judge could not have been satisfied that when the appellants participated in the re-enactment they truly comprehended their free choice to remain silent without disadvantage.

We have been urged that the circumstances of age, race, detention and the inherent situation combined to make it unlikely that the message in the caution was comprehended under circumstances which made it possible or practicable to be heeded and exercised. Mention was made of the black child and the "big white policeman", the submissiveness of the appellants, general matters of this nature.

ADMISSIBILITY - (CAPACITY TO EXERCISE RIGHT OF SILENCE)

Mr Vincent referred to two fundamental concepts, proof of which lay on the Crown. First it must be proved that an accused at the time he spoke had knowledge of the right to speak or remain silent, secondly it must be established that "there was an exercise in terms of the capacity to choose." Thus it was submitted that whilst the trial judge's findings that there was no coercion, no oppression, no inducement might be sustained he should nevertheless have held even assuming he found a caution was given that by reason of "external circumstances" the appellants were unable to exercise their choice. If this submission as to law goes no further than postulating that only admissions made in understanding of the choice, and after the exercise of will in making the choice will be received in evidence, I consider it correct. In McDermott v. The King (supra) at p. 507 the Chief Justice referring to rejection of "unfair" evidence stated -

"Examples of such unfairness would be afforded by irresponsibility of the accused on the occasion when the statement was made or failure on his part to understand and appreciate the effect of questions and answers."

Perhaps a closer analogy to the situation contended by Mr Vincent is to be found in the words of Street J. in R. v. Jeffries (1947) 47 S.R. N.S.W. 284 at 312 -

"It is the mental condition of the accused, when answering, that is the determining factor in deciding upon the admissibility of such evidence. Even without threats or promises on the part of police, if by his confinement or from other circumstances, for example, exhaustion or lack of comprehension, it appears to the presiding Judge that he has been subjected to such a degree of moral suasion on the part of the police in whose power he then was that his answers could not fairly be regarded as reliable, then the Judge should exclude the evidence. But the mere fact that in answer to questions he makes admissions that operate to his own prejudice does not make such answers inadmissible. It is a question of degree in each case, and it is for the presiding Judge to determine, in the light of all the circumstances, whether the statements or admissions of the accused have been extracted from him under conditions which render it unjust to allow his own words to be given in evidence against him."

But if it is suggested that in this case by reason of ethnic, cultural, social factors or disadvantage, or by a combination of such matters, apparent submissiveness and the circumstances of custody itself, the trial judge should not have been satisfied as to voluntariness, then I would disagree. It is well known to the judges in the Northern Territory that unsophisticated aboriginals who have had little contact with white society are, by upbringing, inclined to be not only polite, but co-operative and frank with authority. But the appellants here do not appear to have come into that category - in fact some of their exploits and attitudes suggest to the contrary and the trial judge so found. An inherent anxiety to talk to police, to co-operate, even though that anxiety may be prompted by the inexperience of youth will not of itself go to admissibility any more than the frightened spontaneity demonstrated in R. v. Isequilla (1975) 1 A11 E.R. 77, or the confused beliefs, not induced by authority, considered in Harris v. The Queen (1967) S.A.S.R. at 316. See also Sinclair v. The King (1946) 73 C.L.R. 316 per Latham C.J. at 323 and Cornelius v. The King (supra) at p. 252 where the court cited the words of Darby J. in R. v. Cook (1918) 34 T.L.R. 515 at 516 -

"It would be a lamentable thing if--- statements made by prisoners were excluded because of a shadowy notion that if the prisoners were left to themselves they would not have made them."

Wells J. commented in The Queen v. Williams (supra) at p. 7 -

"It must first be emphasized that, as I understand the law, an overwhelming determination, on the part of a person being interviewed, to answer all questions put by the investigating officer can never, of itself, have the effect of rendering a confession or admission involuntary, unless that determination resulted from a threat or an inducement held out by a person in authority contrary to the Judges' Rules. It is immaterial that the determination was the product solely 'of internal pressures or internal motives'".

ADMISSIBILITY - FAILURE OF ACCUSED TO GIVE EVIDENCE ON VOIR DIRE

The trial judge's decision that the re-enactments and the admissions then made be admitted in evidence was based, as it had to be, on the evidence of the Crown witnesses. Not one appellant gave evidence on the voir dire or during trial of coercion, fear, confusion, lack of understanding, or of his or her ignorance of the right of silence. If such evidence had been adduced this would have been important evidence the trial judge would have been called upon to consider. His Honour dealt with this aspect at some length (see pages 312-314) and he found it "very significant". He stressed it several times and it was important in his view, not only on the issue of admissibility, but as to other matters, including the important question as to whether or not there had been a "rehearsal" on the morning of 1 January for the re-enactment later that day. The defence elected in the conduct of the trial to impugn the Crown case and counsel sought to discredit the police officers and the crucial aboriginal witness Bobby Armstrong by long and vigorous cross examinations in the hope of excluding not only the records of interview, but the earlier re-enactment. But, at the end of the day the trial judge accepted the re-enactment had occurred as submitted by the Crown and of vital importance he believed the evidence of Armstrong who he classified as "a gentle, honest man who had a sound, responsible approach to the role the police had asked him to play as interpreter and friend". Commenting that from time to time "he became somewhat confused in the witness box under lengthy and relentless cross examination" his Honour held him to be a witness of truth. The test he underwent was certainly thorough. Having examined Armstrong's evidence it seems to me those findings were justified by the evidence.

Before his Honour, and in argument before us, the appellants' counsel gave reasons why the appellants were not called to give evidence on the voir dire. They submitted there would have been inherent dangers for the defence in this course; the young people could have said anything, overwhelmed by the atmosphere of trial and their situation, memories perhaps dulled by lapse of time. That may be so. But it is not uncommon for young people whatever their race to give evidence. A trial judge has a responsibility to ensure they are treated fairly and patiently. It was not that his Honour, in the absence of evidence from the appellants, was entitled to draw an inference in favour of the Crown along the principles of Jones v. Dunkel (1958-59) 101 C.L.R. 298. But he was left with the evidence of the Crown, which bore the onus, and no competing direct evidence on the issues going to voluntariness save for some evidence relating to the "rehearsal" activities on the morning of 1 January which he considered and rejected as confused and unreliable. The failure to call or give evidence in support of allegations against police was referred to by the Full Court in R. v. Bailey (1958) S.A.S.R. 301 at 311 and by the Court of Criminal Appeal in New South Wales in R. v. Bodsworth (1968) 2 N.S.W.R. 132 at 141 an omission which, in the latter case, was referred to as "of considerable importance".

ADMISSIBILITY - DISCRETION - PUBLIC INTEREST - PUBLIC POLICY

Much of what I have said above is relevant also to the submission that in any event despite a finding of voluntariness the trial judge should have exercised his discretion and excluded evidence of the re-enactment.

We heard considerable argument as to the extent to which more recent decisions such as R. v. Ireland (1970) 44 A.L.J.R. 263 and Bunning v. Cross (1978) 52 A.L.J.R. 561 are relevant to the present issues. There has, as counsel pointed out, been subsequent debate as to whether the principles enunciated by the Chief Justice in Ireland's Case (referred to by the trial judge and described in Bunning v. Cross (supra) as representing the law in Australia) apply to confessional as well as real evidence. Both were "real" evidence cases, but I can see no reason for limiting their application to this area, and not only because I believe that if the principles were intended to be so restricted the High Court would have said so. The discretion to admit or reject voluntary confessional evidence wrongly, unfairly or improperly obtained is far from new. Such a discretion may be exercised by weighing the probative value of the evidence against its prejudicial impact upon the accused, itself a fairness exercise, and an exercise which involves consideration of the importance of the evidence.

The reception of confessional evidence may also be excluded not because of any police impropriety, but because its reception would in the circumstances, be unfair to the party against whom it would operate, where for example, he was found to be sick, shocked, drunk, or under acute distress.

Many shades or degrees of unlawfulness and impropriety are encountered and in determining whether to admit evidence thereby obtained - be it real or confessional - it is for the trial judge to weigh up the "competing requirements of public policy" referred to by Stephens and Aickin JJ. in Bunning v. Cross (supra) at 659 always bearing in mind the caveat of the Chief Justice in Ireland's Case that if consideration of the necessity to convict offenders weighs too heavily in the public interest scales, the price may be too high, that price being interference with "the citizen's precious right to immunity from arbitrary and unlawful intrusion" into his daily affairs and the erosion of traditional rights and liberties. Hence the reference in Bunning v. Cross (supra) to questions of high public policy.

These decisions and the principles enunciated have not perhaps contributed greatly to the confessional area. They are more concerned with the new methods and scientific techniques of crime detection, the increasing sophistication and seriousness of crime, the altered patterns of criminal behaviour. But to contend that these decisions have no application to the exercise of discretion concerning admissions is in my view likely to confuse. In this case is the admissibility of the evidence as to the discovery of the .22 cartridge case on the ground indicated by Collins during the re-enactment to be decided on different principles to the admissibility of the re-enactment itself? It seems to me that if the re-enactment was not admissible any evidence associating Collins with the discovery of the bullet should be inadmissible. Whether if the re-enactment was not admitted the prosecution could nevertheless call evidence that the bullet was discovered, as it were, in routine search (which would not be true) and matched with the Winchester rifle taken from the appellants, is a matter I would not now determine - but the situation would be absurd. I agree with the view expressed by Mitchell J. in R. v. Killick (1979) 21 S.A.S.R. 321 at 327 that the reasoning of Stephens and Aickin JJ. in the passage from Bunning v. Cross (supra) she there refers to applies to confessional evidence. To that extent it seems to me that in the exercise of his discretion it was proper for the trial judge to consider the desirability of conviction of wrongdoers. That cannot be considered, nor in my view can the police conduct be measured, in isolation from the nature of the apparent crime the subject of investigation, the killing of Webb at his home in the outback. The trial judge considered and cited the authorities at some length. He posed the question, perhaps rather broadly as to whether the "public interest consideration has its role to play in the application of the fairness test." Having exercised his discretion to admit the re-enactments and photographs he stated that in so doing he had "taken into account the interests of the community". Clearly he was referring to those interests in the sense that they were served by conviction of the wrongdoers. The trial judge proceeded on the correct principles and after consideration of his reasons and the relevant evidence I am of opinion that no error has been demonstrated. He was correct in his refusal to exclude the re-enactment in the exercise of his discretion.

ADMISSIBILITY - UNLAWFULNESS OF DETENTION - FAILURE TO COMPLY WITH POLICE STANDING ORDERS.

It is not practicable to deal with every submission relating to the trial judge's decision to admit evidence of the re-enactment. The principal matters which were urged on behalf of the appellant Collins, related to the alleged illegality of detention at the time of the re-enactment, the failure of the police to conform with standing orders, the fact that on 1st January, the police took him to Huckitta Station rather than to Alice Springs and the fact that he was not specifically cautioned concerning the still photographs which were taken. Other matters urged were that the trial judge failed to give sufficient weight to the absence of a parent during the re-enactment, and that "a friend" (within the meaning of R. v. Anunga; R. v. Wheeler (1976) 11 A.L.R. 412) was not present. Complaint was made that neither Bobby Armstrong nor the appellants were advised as to his proper function before the re-enactment and the trial judge's finding that no rehearsal took place on the morning of 1st January was attacked. A further alleged police impropriety was that the appellant Collins was "not informed by the police of the death or that they were investigating a serious matter". Most of these matters, variously expressed in the Notices of Appeal, are the subject of common complaint.

There can be no doubt as to the legality of the appellants' arrest. Constable Picker, armed with the information given by Janice Edwards, apprehended the appellants about 45 km east of the station. Each admitted in short roadside conversations that he or she had been party to the illegal taking of vehicles at Amoonguna and Huckitta and their subsequent use. They were arrested about 8.00 p.m. and after being conveyed to the station were taken to Harts Range Police Station where they were charged with illegal use of a motor vehicle and they remained in custody overnight.

The appellants were properly arrested for breaches of s.49A of the Police and Police Offences Ordinance which was then in force in the Territory. They were arrested pursuant to the powers of arrest without warrant contained in s.27(1)(e) of that Ordinance. Section 34 of that Ordinance is in the terms of s.78(1) of the South Australian Police Offences Act 1953-1961 dealt with in Drymalik v. Feldman (1966) S.A.S.R. 227. There the court held that section, and the common law required that the person arrested should be forthwith brought before a Justice, the court adding that "forthwith must of course be reasonably understood and applied". It is, of course, clear that arrest as a convenient preliminary to an interrogation is not countenanced by law (Bales v. Parmeter (1935) S.R. N.S.W. 182). It was submitted that the arrest of the appellants was a device for holding them for questioning - a "legal way" of getting them in custody and much was said of the "holding charge" and the fact that the charges of illegal use were not initially proceeded with. These submissions overlook the realities and if I may say so the responsibilities of the police, responsibilities owed to each of the accused as well as to the community. The finding of the body of Webb was the event which brought the police to the area. Earlier that day, about 11.00 a.m., the police in Alice Springs had received a complaint about offences at Amoonguna Social Club. The complainant was Mr. Williams, the father of one of the appellants who then named the appellants as the persons who had broken into the store. They had admitted charges of illegal use. Their arrest cannot on the evidence be termed a pretext for investigation. But it was said the detention became illegal on 1 January when the appellants, then in lawful custody at Harts Range, were removed to aid police enquiries into the killing at Huckitta Station. The character of the detention thereupon changed, it was said, from legal detention to illegal detention. It was said the police, despite the information in their possession, should have then and there taken the children to Alice Springs to be taken before a Justice on the charges of illegal use, although it was common knowledge that there would be no court sittings on that public holiday. I cannot accept this as the law. The appellants or one or more of them were likely to know something of the killing; whether as witnesses or actors remained to be determined. It was necessary that they should be questioned as soon as practicable and Huckitta was the obvious place. They were cautioned not because the police had then decided to arrest them or any of them on a charge of murder, but because they were already in custody, on bona fide charges. The questioning gave those who may have been innocent the opportunity of clearing themselves. The urgency of the matter was self obvious. It was an unusual situation in that remote area and the trial judge found it was not practicable to convene a court at the nearest police station, Harts Range. I would not place great emphasis on the fact that it was a public holiday, rather I would say that the necessity of investigation into the death of Webb was a fact which the law must take into account in examining the character of the custody and the reasonableness or otherwise of the delay in taking the appellants to Alice Springs. The words of Diplock L.J. in Dallison v. Caffery (1965) 1 Q.B. 348 at 370 have relevance -

"It is in the public interest that felons should be caught and punished. At common law a person who acts honestly and reasonably in taking steps to serve this public interest commits no actionable wrong. What is honesty in this connection does not change : what is reasonable changes as society and the organisation for the enforcement of the criminal law evolves. What was reasonable in connection with arrest and detention in the days of the parish constable, the stocks and lock-up, and the justice sitting in his own justice room before there was an organised police force, prison system, or courts of summary jurisdiction, is not the same as what is reasonable today. Eighteenth and early nineteenth-century authorities are illustrative of what was reasonable in the social conditions then existing. They lay down no detailed rules of law as to what is reasonable conduct in the very different social conditions of today."

I turn to the complaints that the police breached police circulars or "standing orders" as to notification of the Aboriginal Legal Aid Service and as to procedures following the arrest of children.

The circular memorandum relating to the arrest of aboriginals is set out in the appeal book at 2-315. That circular is in very different terms to the police standing orders considered in Walker v. Marklew (1976) 14 S.A.S.R. 463 which provided inter alia, for the presence of an officer of the Department of Aboriginal Affairs when an aboriginal is questioned about a serious offence. As appears in para (1) the purpose of the memorandum appears to be to enable legal representation to be arranged "at court" and para. 5 provides that when aborigines are arrested outside Alice Springs and Darwin the member in charge of the case "shall ensure that the relevant legal aid service (shall be) notified as soon as practicable after aboriginals are arrested . . ." I doubt whether it could be said that the failure of the police to notify the Alice Springs branch of the service on a public holiday by the time of the re-enactment could be classified as unreasonable nor would it have affected the course of events. The trial judge's comments covering Standing Order 34 relating to the arrest and questioning of children perhaps assumed too far an absence of interest by the parents of the young appellants in this case but the failure to advise the successor to the Director of Welfare on New Years Day (if he could have been located) was not a factor which could weigh much in the discretionary process. The provisions that children should be interviewed at home in the presence of a parent, may be apt in most situations relating to juvenile offenders in towns but not when they have been arrested in the bush, a long way from home, being questioned about the killing of a man at his lonely station homestead.

ADMISSIBILITY - THE ANUNGA RULES

I turn to the submissions that the police failed to ensure that the provisions of circular police memorandum No. 15 of 1976 (which was issued following publication of R. v. Anunga (supra) were adhered to. I refer to recent remarks I made in an unreported decision Stevens v. Lewis (Northern Territory Action No. 872 of 1979 - 31/10/79) -

"The primary questions, it seems to me, for the court in considering admissibility of admissions allegedly made by Aborigines or, indeed, by any other person in our community are three - relevance, voluntariness and the question of fairness. Each case must be assessed in the circumstances with regard to the individuals involved. The court, in considering the issues, should take into account the guidelines. The case goes no further than that. The guidelines do not alter or constitute a departure from the general law relating to the admissibility of confessions or the matters to be taken into account in the exercise of the court's discretion. Slavish or unnecessary adherence to the guidelines, technical adherence for the sake of form or apparent compliance, was never, in my opinion, intended by the Chief Justice. Indeed, he said so quite clearly -

'These guidelines are not absolute rules, departure from which will necessarily lead to statements being excluded, but police officers who depart from them without reason may find statements are excluded'."

Here complaint was made that Bobby Armstrong, who his Honour found to be "a person in whom all accused had apparent confidence", . . . who "was suitable and fulfilled the role in accordance with the guidelines set out in Anunga's Case" was in fact entirely inappropriate as prisoner's friend. At the trial, much the same submissions were made which were summarised in the trial judge's reasons (at 2-329) and dealt with at some length in the following pages. In view of the express findings of the trial judge as to the qualities of this man, the arguments are untenable. The remarks of the Chief Justice in R. v. Anunga (supra) were designed to promote fair investigation - not to stifle investigation. When an aboriginal is questioned for a serious offence far from his own country, the investigation cannot be expected to cease until a friend or relative or tribal kinsman can be summoned. In this case the presence of Bobby Armstrong, an aboriginal who spoke in the appellants' own tongue, must have been supportive. At least that was a finding well open to the trial judge in the absence of evidence to the contrary from any of the accused, who, it must be remembered could all speak basic English. It was to a large extent the situation of the lone aboriginal confronted by police officers in a police interview room and his reaction to that situation which gave rise to the Anunga Rules. Here the appellants were at no stage segregated one from the other, save during the demonstration when they were in the intermittent view of others. The demonstration took place in an environment of a nature familiar to the appellants, who had rested together in the shade of a tree. It was an exercise which was apparently delayed until the extreme heat of the day had dissipated. There was no evidence that the appellants regarded Bobby Armstrong as a policeman, a police agent or a person in authority. As the Chief Justice said in R. v. Anunga (at p. 414) "The combination of persons and situations are variable and the categories of persons I have mentioned are not exclusive. The important thing is that the 'prisoner's friend' be someone in whom the aboriginal has confidence, by whom he will feel supported." The trial judge's finding (at 2-332) that "all accused knew what his '(Armstrong's)' role was", was an inference open upon the evidence. They expressed the wish to have him with them. The trial judge's finding that he "fulfilled the role in accordance with the guidelines set out in Anunga's Case" is not one with which this Court should interfere. In reading Armstrong's evidence, although the occasional confusion referred to is evident, the findings of the trial judge find strong support.

ADMISSIBILITY - CAUTION - PHOTOGRAPHS

As to the submissions that the cautions given by Sergeant Chung and interpreted to Collins, Williams and Woods were inadequate, consideration of the evidence, including again the evidence of Armstrong, indicates considerable material for the trial judge's expressed satisfaction of the appellants' understanding and willingness to participate. Armstrong's evidence in chief as to the caution to Collins is to be found at E-1558, as to Williams at E-1574, as to Woods at E-1585 and as to Kevin Stuart at E-1602. This man, who the trial judge accepted as honest, told the court their right of silence was conveyed to them and acknowledged. His translations of the caution on subsequent occasions when the records of interview were recorded on tape was checked at trial by the witness Stoll who was conversant with the appellants' tribal language and emerged as conveying the essential features. In cross examination Armstrong made it clear that he could not see "through people", i.e. look into their minds, in determining their understanding but his Honour was entitled to rely on the satisfaction this witness expressed as to the caution and its acceptance by the appellants. It would in my view have been desirable for the police officer to ask the appellants to repeat what had been explained to them during the caution - a common practice in the Territory and this was not done. But his Honour was in a better position than this court to determine this issue, and he had no evidence from the appellants or from any source to suggest any lack of understanding. The evidence supported his findings as to the appellants' comprehension and does not support the complaints of oppression raised in the Notices of Appeal.

It was suggested that the police should have specifically cautioned the appellants or explained to them they had the right not to be photographed. If evidence of what the appellants said and showed the police on the re-enactment fell, the photographs would fall with it. They were only explanatory of what was demonstrated, after the right not to participate in the re-enactment was, upon the trial judge's findings, explained and understood. Such photographs have of course evidentiary value and in a case such as this they ensure subsequent accuracy and comprehension. They are a necessary feature of investigation in remote areas where subsequent views by juries are often just not practicable. Photographs tend to prevent later distortion of evidence and to confirm or explain viva voce evidence. It is desirable in my view that in the case of a re-enactment the caution should be appropriately adapted to explain that photographs may be taken to illustrate what occurs. Here the trial judge considered the matter and rightly distinguished the circumstances from the situation in R. v. Ireland (supra) where the accused was wrongly told he was required to be medically examined and photographed. There the High Court found the issues as to photographs and the medical examination could not be extricated and reached the conclusion that the trial judge had not exercised a discretion in permitting their production in evidence. The modern practice of complete re-enactment recorded and displayed by video-tape and which may constitute cogent admissions by conduct alone is also to be distinguished. In that event as the film frequently speaks for itself it may well not be introduced into evidence unless the court is satisfied the accused understood his right not to participate in the re-enactment (R. v. Lowery & King (No. 1) 1972 V.R. 554). Assuming the admissibility of the evidence of the re-enactment there are no grounds for finding that the appellants were unfairly disadvantaged by reason of the admission of such photographs. Standing alone the photographs are meaningless. They only depict accurately what would otherwise have been admissible in less accurate form in the evidence of the police.

Unfairness is not so much to be found as a fact as to be judged as a value. The circumstances including the exigencies of the particular investigation must be considered. That is not to say that the fair treatment of a suspect upon which the court insists varies in inverse proportion to the seriousness of the crime of which he is suspected, but it does mean that the steps which have to be taken properly to investigate serious crime are relevant in determining what is fair in the particular case.

The factors relevant to guide the exercise of the discretion cannot be exhaustively stated, but two factors which always weigh in favour of admission may be mentioned: first, that it is generally desirable that probative and admissible evidence in proof of crime be admitted for consideration of the tribunal of fact; and second, ex hypothesi, that any failure to accord fair treatment to the confessionalist has not overborne his will. The weight of these factors will vary, and other factors will appear, in the circumstances of each case.

The second of these factors presents an enigma: if the conduct of police departs from the appropriate standards of fair conduct in an investigation but it has not resulted in the overbearing of the confessionalist's will, why is it unfair to use a voluntary confession? Leaving aside cases of deception, trickery and the like, it may be true to say that the enigma is partially unresolved. And the enigma has led, perhaps usefully, to a blurring of the distinction between the issues of voluntariness and discretion. Where the evidence of a confessionalist's reaction to police conduct has not sufficiently demonstrated an overbearing of the will, but the conduct itself has had such a grave tendency to unfairness as to lead the court to think that there is a real risk that the will may have been overborne, a rejection of a confession has sometimes been founded upon the discretion rather than upon a finding of involuntariness. And so the discretion has buttressed the protection of the confessionalist.

The categories of exclusion are nevertheless logically distinct. In principle, the room for the operation of the discretion is narrower, and the need for the exercise of the discretion to ensure fairness is less, than is frequently supposed. In practice, of course, it is immaterial that a confession which is inadmissible is rejected on discretionary grounds rather than on the ground that it is unvoluntary.

Another factor arises for consideration in the present case. The police action in removing the prisoners from the cells at Harts Range and moving them without their consent (so far as the evidence shows) to Huckitta for the re-enactment was unlawful. It is not necessary to consider whether the initial arrest of each of the appellants was invalid or unlawful, nor to divine whether the purpose of those arrests was simply to detain the appellants for the purpose of the murder investigation. Let it be assumed for the present that their incarceration at Harts Range was lawful; there was yet no authority for the police to remove them to Huckitta. Their arrest and incarceration on the unlawful use charges no doubt restrained them from going away at a time when the murder investigation was pending, but it added nothing to the armoury of police powers in carrying out the investigation. By s.34(1) of the Police and Police Offences Ordinance, it is provided:

"Any person apprehended without a warrant shall be forthwith delivered into the custody of the member who is in charge of the nearest police station, in order that the person may be secured until he can be brought before a Justice to be dealt with according to law, or, if the person has been apprehended for any offence against this Ordinance or for any petty misdemeanour, or if in any other case the member deems it prudent to take bail, until he has given bail for his appearance before a Justice."

Although this section does not expressly define the place in which an arrested person is to be held in custody pending his appearance before a court, the Ordinance evidently intends that the ordinary place of detention should be a police station, for s.41A provides that it is an offence to escape from a police station while in lawful custody. There is nothing in that Ordinance (nor, so far as we were advised, in any other law) which empowers the police to take a person who is incarcerated in a police station for any investigative purpose. To have taken the appellants without their consent out of the cells at Harts Range to Huckitta was a trespass to them and was unauthorized, if not prohibited, by the Police and Police Offences Ordinance (cf. R. v. Bruce 1965 Q.W.N.48; R. v. Macecek 1960 Qd.R.247 at pp.260,261). Even if one allows to a police officer the power to take an arrested person from one place to another in order to investigate the offence for which he was arrested (as in Dallison v. Caffery (1965) 1 Q.B.348) - a proposition which it is not here necessary to consider - a police officer's power does not extend to the compulsory taking of a prisoner who is in custody at a certain place on one charge to some other place to investigate some other charge (see Bales v. Parmeter (1935) 35 S.R. (N.S.W.) 182 at p.190).

The investigative duty of the police is circumscribed by law, and their duty never extends to a breach of the law. It does not necessarily follow, apart from express statutory provision, that confessional evidence obtained in consequence of the police officer's breach of the law must be excluded. A breach of the law by the police evokes consideration of the factors to which Barwick C.J. referred in The Queen v. Ireland (1970) 126 C.L.R. 321 at pp.334-335, when he said with reference to "real evidence" :

"Evidence of relevant facts or things ascertained or procured by means of unlawful or unfair acts is not, for that reason alone, inadmissible. This is so, in my opinion, whether the unlawfulness derives from the common law or from statute. But it may be that acts in breach of a statute would more readily warrant the rejection of the evidence as a matter of discretion: or the statute may on its proper construction itself impliedly forbid the use of facts or things obtained or procured in breach of its terms. On the other hand evidence of facts or things so ascertained or procured is not necessarily to be admitted, ignoring the unlawful or unfair quality of the acts by which the facts sought to be evidenced were ascertained or procured. Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion."

The discretion does not arise for exercise, and the competing public requirements to which the Chief Justice referred do not arise for consideration only in cases where the evidence to which objection is taken is real evidence. Where unlawfulness appears, consideration has to be given to these public requirements whether the evidence obtained by the unlawfulness is confessional or real evidence. Indeed, the public requirements to which the Chief Justice referred are substantially the same considerations as those earlier mentioned which led English judges to exclude confessions unfairly obtained. But the public requirements are of particular importance in cases of real evidence unlawfully obtained. Concepts of fairness and unfairness, which loom large in the exercise of a discretion to reject voluntary confessions, have little room for operation in governing the discretion to reject real evidence obtained in breach of a statutory prescription, as Stephen and Aickin JJ. pointed out in Bunning v. Cross, supra, at p.569.

When a voluntary confession would not have been made but for unlawful conduct, however, a discretion may be exercised to reject it, particularly if the conduct breached a law for the protection of the confessionalist.

Factors of the kinds which, in Ireland's case and in Bunning v. Cross, were said to be relevant in exercising a discretion with respect to the admission of real evidence, may be relevant in exercising a discretion with respect to the admission of voluntary confessions, but it is difficult to conceive of a case - though I do not say such a case could never arise - where a voluntary confession which might fairly be admitted against an accused person would be rejected in the public interest because of unlawful conduct leading to the making of the confession. When the admission of confessional evidence is in question, the material facts are evaluated primarily to determine whether it is unfair to the accused to use his confession against him, and it would be only in a very exceptional case that the residual question would arise as to whether the public interest requires the rejection of the confession. However, the object which the exercise of a discretion to reject a confession ordinarily seeks to obtain is the fair administration of justice, and unfairness which is the product of unlawfulness is not placed outside the ken of the judge whose discretion is invoked. Equally, as Barwick C.J. pointed out in Driscoll v. Reg. (1977) 137 C.L.R.517 at p.523:

"(I)n determining what is fair in the circumstances, the judge must not lose sight of the interest of the Crown as representing the community in the conviction by due and fair process of those who break the law."

In the light of these principles, I turn to consider the admission of the confessions made by the appellants during the re-enactments.

Before the evidence of the re-enactments was admitted the learned trial judge received evidence and heard submissions on voir dire. The first voir dire related to Janice Edwards' statement made on 3 January; a second voir dire related to the re-enactments by the appellants and to the statements made by them in their records of interview taken on 2 and 3 January. At the end of the first voir dire, his Honour ruled in favour of admitting the evidence and gave ex tempore reasons; at the end of the second voir dire, his Honour admitted evidence of the re-enactment but rejected evidence of the records of interview. He delivered ex tempore reasons for his ruling on 1 August 1979 and later, on 12 September 1979, after the appellants had been convicted and sentenced, his Honour delivered his considered reasons which canvassed much of the enormous volume of evidence laid before him, and reviewed a significant portion of the wealth of authority touching the admission of confessions.

An appellate court cannot interfere with a trial judge's ruling to admit a confession unless it is satisfied that he found facts wrongly, or that he misunderstood the true nature of the questions which fell for his decision or, if the admission turns upon the exercise of a judicial discretion, that the discretion miscarried. The reasons expressed by a trial judge are the starting point for the appellate court's discharge of its functions.

Early in his reasons of 12 September, his Honour says:

"For the reasons I have already indicated, I have reached the view that the participation of the respective accused in the re-enactments and their being photographed in the course of those re-enactments were shown to have been voluntary in the sense that they acted in the exercise of their free choice, were not overborne or intimidated or subjected to sustained or undue insistence or pressure (McDermott v. The King (1948) 76 C.L.R.501)."

His Honour's recollection was inaccurate, for the transcript does not contain any previous statement of his Honour's reasons for his view that the re-enactments were voluntary; his Honour's ex tempore reasons of 1 August were restricted to reasons for exclusion of the records of interview taken on 2 and 3 January. In the course of the considered reasons, however, his Honour referred to the requirements of voluntariness on several occasions. At the outset of those reasons, his Honour said:

"The onus is on the Crown to establish that the confessions were voluntary and the burden of proof is on the balance of probabilities. The onus is on the accused to establish facts justifying the exercise of the discretion in their favour (Wendo v. The Queen 109 C.L.R.559 at 565)."

No error appears in these propositions, provided it be remembered that, until a confession is found to be voluntary, no question of discretion arises and an onus to prove facts which may be relevant to the exercise of discretion does not pass to an accused in relief of the prosecution's duty to prove any of those facts which are required to establish voluntariness. His Honour's reasons, being directed principally to matters of discretion, appear to cast the onus of proving relevant facts on the accused. Thus, in reference to the absence of the accused from the witness box, his Honour said:

"It was very significant to me that no accused gave evidence on the voir dire. In respect of many findings of ultimate facts urged in the submissions on behalf of the accused there was really no supporting evidence, although it seemed likely that such supporting evidence would have been available or could have been available. Apart from the explanation referred to above, no explanation was advanced as to why there was not some evidence on the many issues and grounds raised for the exclusion of the confessional material."

In the later part of his reasons, his Honour recited the arguments urged on behalf of Mark Collins for excluding the confession as involuntary, saying:

"It was next argued that in relation to the re-enactments there was a lot of facts and circumstances which would have created a feeling of oppression on the part of the accused and the oppression would have been such as to overbear the will of the accused. . . . The facts relied upon by the accused, Mark Collins, in this respect were:-

He was not told why he was being taken to Huckitta Station or that there would be a re-enactment.

He and the other accused were left for five hours at Huckitta Station without being told anything thus causing apprehension, suspense and tension.

The re-enactment was conducted without a friend or a parent.

They were not told that the deceased was dead.

There was no full record kept of the re-enactment.

The admissions were not fully recorded.

A tape recorder was not used.

There was no discussion of Bobby Armstrong's role."

But his Honour stopped short of making a finding as to whether these factors did or did not overbear the will of Mark Collins. After referring to the terms of the caution administered to Mark Collins, and the unpleasant heat of 1 January, his Honour reverted to the task of making findings to guide the exercise of his discretion:

"From all this, it was said I should find something sinister about the re-enactment. I have considered all these matters. I think that I should accept the evidence that the accused did not appear nervous or oppressed and, in the absence of any evidence to the contrary, I am not prepared to infer even if I was satisfied about all the matters referred to above, that in the exercise of my discretion and within the principles expounded I should exclude the re-enactments and photographs on these grounds."

In the penultimate part of the reasons, his Honour recapitulated some further arguments which appear to be directed to voluntariness, saying:

"It was submitted on behalf of the accused, particularly Kevin Stuart and Joyleen Williams that the police conduct to them in removing them from the cells and taking them to Huckitta Station for the re-enactments were offensive and virtually created an impossible situation for them in that they did not know their rights and would not have had them recognised anyway. The factors relied on were that they were not told where they were going or the reason for going, were given no choice about going, their rights about going and the presence of a parent or parent figure were not explained, they were conveyed in the police cage which was without seats and open to the heat of the day, their wishes were never sought about going or not and all the circumstances pointed to the fact that the police had a fixed intention to have the re-enactments at Huckitta Station regardless of the wishes of the accused. When they arrived at Huckitta Station they were told to sit, were left in ignorance of the purpose of their presence there, were not told Quinton Webb had died, were detained under the tree for periods of five to seven and a half hours, and were provided with a friend as lip-service to the rules in Anunga's Case and in circumstances amounting to a farce and a sham. It was said that Kevin Stuart was so confused about what was happening that he thought he was to be a witness, not an accused. In the case of Josephine Woods it was urged that she was commanded in imperative terms to come with the police and carry out her re-enactment and that she really had no choice.

I have found earlier in these reasons that the re-enactments by each accused were voluntary."

If his Honour thought that he had earlier set out any reasons for his findings, he was mistaken, but he may have meant merely that that was his conclusion and that his reasons were those which he immediately proceeded to set out:

"There was no violence, hostile or offensive conduct by the police. Bobby Armstrong was present as prisoner's friend throughout and proper cautions were administered. The re-enactments and submission to photographs were voluntary, and no sufficient reasons for exercising my discretion against their admission into evidence were shown."

It will be necessary again to refer to the role of Bobby Armstrong as the prisoner's friend, and to the effect of the cautions; these were, as his Honour clearly appreciated, matters of importance. However, his Honour does not express his reasons for denying to the circumstances surrounding the re-enactments any relevant effect upon the will of each of the appellants. Yet that was the central issue for determination. It is an issue which, if resolved against the prosecution, makes all further issues irrelevant. His Honour must be taken to have found the issue in favour of the prosecution, of course, but the reasons which led him so to find are not apparent.

From the facts which are not in dispute, an inference that the will of each accused was overborne by the pressure of the circumstances in which he was placed may readily be drawn, but there is no expression of his Honour's reasons for rejecting the inference save those quoted and some presently to be mentioned, and it is difficult to identify the reasons which satisfied his Honour that each of the appellants spoke and acted during the respective re-enactments in the exercise of his or her free choice to do so. It is desirable to recall the facts which are not really open to dispute.

Each of the appellants is a child or, in the case of Josephine Woods, somewhat child-like in mentality. They came from the environment of an Aboriginal settlement in which children appear scared by the arrival of a police car. They were not experienced in dealing with persons in authority. The police were big men physically, and the juvenile appellants were puny by comparison. The power of the police was manifest from the first moment of contact, when Kevin Stuart was pulled out of Lankin's vehicle and the four appellants were put in the cage at the back of the police vehicle. Assuming that they understood that they were being locked up at the Harts Range police station for taking the motor vehicles, the unexplained conduct of the police in taking them out of the cells, placing them in the cage and taking them to Huckitta on 1 January must have shown them that the police wanted to find out what they had done the day before. The intention of the police was too clear to mistake. The power of the police over the appellants appeared not only from the compulsory transporting of the appellants to Huckitta, but from the leaving of the appellants for hours without explanation or conversation pending the arrival of Bobby Armstrong, and from the summoning of each appellant thereafter. After Armstrong was introduced to each respective appellant, the police requested information from him or her. Leaving aside the caution for the moment, it is most unlikely that any of the young Aboriginals would have felt free at that stage to deny the police request. It is difficult to envisage any one of the appellants who, being asked to provide information, would have felt himself at liberty to turn away from Chung and to go back to the group, saying "I do not want to speak". To expect any of them to act in manifest frustration of the police at that stage, after they and Bobby Armstrong had been brought to Huckitta for the re-enactments, is to expect action which is at odds with the background, age and race of the appellants, and their position as prisoners in the custody of the police. Whether an over-reaching of the appellants was intended or not, the antecedent course of events leaves the mind entirely unsatisfied that the answers given to the police request for information were made in the exercise of a free choice.

The primary significance of the absence of parents or a prisoner's friend who might have spoken privately with the accused about his or her wish to answer questions is not that a failure to observe the Anunga rules enlivens a discretion: its significance is that there was nobody who might have assured the appellants that they were free to deny the police request for information without penalty. His Honour cited a passage from a Canadian judgment, which aptly summarizes the relevant considerations, R. v. R.(No.1) 9 C.C.C.214:

"In view of a child's reduced capability of understanding his rights and his reduced capacity to protect himself in the adult world, the court must be particularly diligent in considering the voluntariness of a confession by a juvenile accused. The absence of a caution becomes particularly important because of the possibility of the child assuming he must answer questions. Another factor is the absence of the parents, since in most cases their presence is the best protection of the juvenile's interest. Also, the juvenile's state of mind at the relevant time is a consideration on the issue of voluntariness."

This lays down no principle of law; it is a judicial appreciation of the difficulties in the way of finding that a child's confession is voluntary. That is a difficulty which is graver when the child belongs to a different cultural background from his questioner, suffers social and educational disadvantages beyond those to be accounted for by age alone, and is in the physical custody and has experienced the power of his questioner. The Judges Rules, the Anunga rules and the cases to which his Honour referred as to the protection of children being interrogated testify to the long judicial experience of the risk that a person in custody, an Aboriginal or a child may wrongly suppose that he is liable to answer an interrogation, that specific protection is required to safeguard against that risk, and that, in the absence of safeguards it may not be possible to conclude that a confession is voluntary.

In the present case, the persons in custody suffered from all of the disabilities against the effects of which the several judicial guidelines were designed to give protection. Unless the evidence showed that there had been some supervening circumstance to remove the pressures to which the circumstances had tended to subject each appellant's will, it would be wrong to find that a confession made in response to his or her custodian's request for information was voluntary.

In my judgment the evidence falls short of showing that those pressures were removed. The introductory conversation before each of the first three re-enactments did not remove them: each of Collins, Williams and Woods was told that he or she was to be spoken to by Chung, and was asked not whether he or she was willing to talk to him but whether Bobby Armstrong was wanted as a friend while that happened. Then Chung said that he wished to ask questions "about the trouble here yesterday". There was no mistaking his desire and intention. Next the particular appellant was told that what was to be said or shown would be recorded for the judge in court, which might reasonably have conveyed Chung's expectation that there would be something to be recorded. To say at that stage of the conversation to any of the appellants that he or she "does not have to tell us or show us anything" is an entirely inadequate means of guarding against the danger that the particular appellant might wrongly suppose that he is being required to answer or that it will be the worse for him if he does not (Banner, supra); and that is so even if it were shown that the particular appellant was capable of understanding the meaning of the words employed. Nothing would suffice to prove voluntariness short of a clear appreciation and belief on the part of the particular appellant, proved by acceptable evidence, that he or she was not under any obligation to speak. A mere nod or the word "yes" does not prove that any appellant had such an appreciation and belief. The failure to observe rule (3) of the Anunga rules not only denied to each of these appellants the protection which the Court intended but it deprives the prosecution of the ability to prove that the following confession was voluntary.

The presence of Armstrong does not advance the prosecution case. A prisoner's friend is intended to enhance the suspect's ability to choose freely whether to speak or to be silent. Bobby Armstrong became, from the beginning of each of the interviews with Collins, Williams and Woods, an interpreter acting in response to police instruction, and he was manifestly not available for private consultation with any of the appellants to whom he was translating the introductory remarks of Sgt. Chung.

And if the particular appellant did think that he or she was required to answer Chung's questions and did so, lack of any appearance of fear, awe or distress during the interrogation is neutral in proving voluntariness - for the absence of those emotions is entirely consistent with the fulfilling of any obligation to answer which an appellant may have thought implicit in the questioning. In the cases of Collins, Williams and Woods, there is no acceptable evidence that the effect of the pressure which is to be inferred from the agreed circumstances was alleviated by the warning or the presence of Armstrong.

The inference which I would draw from the circumstances is that each of these appellants would have believed that a refusal to answer would make it worse for him and that he would be better off by answering because he was obliged to do so. At all events, there is no satisfactory proof that any of them appreciated and believed the contrary. I am thus constrained to conclude that his Honour's finding that the confessions were made voluntarily by these appellants was wrong. This is a conclusion of fact.

In Stuart's case, the prosecution case is stronger. First, because his ability to speak English is greater and the risk of misunderstanding what Chung said was less; second, because he answered Chung's question "What do I mean by what I have just said?" by saying "I don't have to tell you". With some hesitation, I nevertheless conclude that his Honour's finding was wrong in Stuart's case also. Armstrong's presence is of no greater significance in his case than in the cases of the other appellants. And his understanding of the meaning of the cautionary words used by Chung does not prove on the balance of probabilities that he appreciated and believed that it would not be worse for him if he did not answer. Stuart had been kept all day at Huckitta, he had seen the other three go forward to be interviewed and then to accompany the police during a re-enactment. To think that the 13-year old Stuart understood that he was in any real sense free to deny Chung's requests for information seems fanciful to me.

Had it been right to find that the confessions were voluntarily made, the question would have arisen whether the exercise of his Honour's discretion to admit the confession had miscarried. An appellate court must be "slow to interfere" with such a discretionary decision, as Street J. said in R. v. Jeffries, supra, and error in fact or principle must appear in the decision under appeal. If an appellate court finds error in the findings of fact according to which a trial judge determines the exercise of his discretion, it does not follow that the exercise of discretion should be reversed. The appellate court may decide to exercise its discretion in the same way upon the facts found as it finds them.

In the present case, there are some findings made by the learned trial judge in the course of determining the exercise of his discretion which were attacked on appeal.

One of these findings related to the sufficiency of the police enquiry at Amoonguna for the parents of the four appellants. Constable Lloyd's failure to locate the parents was said by his Honour to have followed a "due search and enquiry" and part of his Honour's findings rested on an inference which he drew that Joyleen Williams' father knew, at 3.10am on 1 January, that in addition to Collins and Stuart his daughter was in custody at Harts Range with the other accused whose names he, Williams, had given to the police at 11.00am on 31 December. Even if that inference might have been open, there is no reason to believe that anybody at Amoonguna at that time knew that the accused were suspects for murder, yet the purpose of the visit to Amoonguna, if it has any present relevance, was to apprise the parents of the appellants of the need of their respective children to have some support in the course of the murder investigation. His Honour also found that Mr. Williams, who was president of the central Australian Aboriginal Legal Aid Service, knew enough facts at 3.10am on 1 January "to take appropriate action to arrange representation for the accused before any real interrogation began", despite the fact that Constable Lloyd only knew of two (Collins and Stuart) who were involved in the trouble at Huckitta and if Lloyd had found the parents of Collins and Stuart he yet would not have given them that information without further instructions from his sergeant. If the contact with Mr. Williams, who was affected by liquor when Lloyd spoke to him, was intended to be notification to Aboriginal Legal Aid, it is difficult to see that a duty resting on the police to inform Aboriginal Legal Aid has any substance in it. His Honour seems to discount the failure to make a more adequate search for the appellants' parents and to apprise them of the nature of the investigation which was shortly to take place. With reference to a standing order that it is desirable that police interview a child in the presence of at least one of his parents, his Honour thought that in the circumstances

"there was sufficient compliance by Sergeant Chung with the standing order"

and added

"Even if I am wrong in this view and there has been a failure to comply, because of the exigencies of the investigation and the apparent lack of interest of and inability to communicate with the parents, I discount entirely the failure to comply with this standing order."

Such a finding appears to attribute to the parents of all the appellants a lack of interest which his Honour attributed to Mr. Williams. There is no evidence to show that, if any parent had been told of the murder investigation, he or she would not have responded in some way to safeguard the interests of the child. His Honour's findings are directed to evaluating the conduct of the police which is relevant, of course, to the treatment and protection of each confessionalist; but the essential question is not compliance by the police with guidelines or directives, rather it is the fairness of the actual treatment and protection accorded to each confessionalist. The absence of a parent or friend before and during each re-enactment is the principal circumstance, and the reasons why no parent or friend was present show whether it was unfair in the circumstances to proceed with the re-enactment in the absence of a parent or friend. Difficulties of distance, time and communication, possible shortage of police personnel, and difficulties in finding and speaking with the Aboriginal inhabitants at Amoonguna, combined with the imperative requirements to ascertain how Webb was murdered, no doubt accounted for the course which the police in fact adopted. The exigencies of investigation were rightly to be taken into account by his Honour in determining whether it would be fair to use the confessions against the respective appellants. And his Honour evidently thought it was fair in the circumstances of 1 January for the police to question the appellants in order to ascertain the facts of the murder. If one were to assume that the confessions were voluntary, the principal ground for submitting that it would be unfair to use the confessions in evidence would be cut away, even though his Honour's recited findings were set aside. Further, the unlawfulness of taking the appellants to Huckitta would not necessarily lead to rejecting the confessions, for the unlawfulness would not have made it unfair to seek the voluntary giving of information from the appellants who were the only witnesses to the crime, and there is a countervailing public interest in obtaining information to be tendered in proof of crime.

To assume voluntariness, one must discount the effect of the circumstances which tend in favour of the discretionary rejection of the confessions: then all that is left is the duty of the police to interrogate the witnesses of the crime. A challenge to his Honour's admission of the confessions would therefore fail. Conversely, unless the effect of the failure of the police to observe the Anunga rules, and the rules with respect to the interrogation of children, and the effect of unlawfully taking the prisoners to Huckitta, are discounted, the Court is left with circumstances which deny voluntariness in the confessions for reasons earlier stated.

The ground upon which I would uphold this appeal is not the setting aside of his Honour's discretion but the setting aside of the finding that the confession was voluntary. I would set aside the convictions. Such a result may appear to place a fetter upon the investigation of crime, at all events when the criminals are young, simple and unsophisticated people. But as Windeyer J. pointed out in Rees v. Kratzmann (1965) 114 C.L.R. 63 at p. 80:

"There is in the common law a traditional objection to compulsory interrogations. Blackstone explained it: 'For at the common law, nemo tenebatur prodere seipsum: and his fault was not to be wrung out of himself, but rather to be discovered by other means, and other men' : Comm. iv, 296. The continuing regard for this element in the lawyer's notion of justice may be, as has been suggested, partly a consequence of a persistent memory in the common law of hatred of the Star Chamber and its works. It is linked with the cherished view of English lawyers that their methods are more just than are the inquisitorial procedures of other countries."

I should add that, if the convictions were set aside, I should think it necessary to order a retrial. Upon the authority of Reg. v. Coney (1882) 8 Q.B.D. 534 and R. v. Russell (1933) V.L.R. 59, I would conclude that there is evidence remaining after excluding evidence of the re-enactments sufficient to support an adverse verdict against each of the appellants. Evidence of assent to the crime and encouragement of the principal offender could be found in the circumstances of presence at the scene of the killing, an absence of warning to Quinton Webb (which might be inferred from the fact that he was evidently shot while he was at the tankstand), and the flight of the appellants together in the station Toyota before Ransome and Janice Edwards returned from the dam. Unless an adverse verdict could be supported no new trial should be ordered; and no account should be taken of the prospect of the Crown strengthening its case with new evidence (Reid v. The Queen (1979) 2 W.L.R. 221 at pp. 224, 225). Although exclusion of evidence of the re-enactments would substantially weaken the Crown case, that does not necessarily require refusal of an order for a new trial (Reid, supra, at p. 227). As O'Connor J. said in Peacock v. The King (1911) 13 C.L.R. 619 at p. 675 in reference to the discretion to order a new trial:

"In exercising the discretion given by the Statute the interests, not only of the prisoner, but of the efficient administration of justice ought to be considered, always providing that no injustice is done to the accused."

In this case, though there are several factors which weigh in favour of refusing a new trial, the seriousness of the offence and the desirability that the ultimate verdict be the verdict of a jury, not the order of an appellate court, would lead me to order a retrial.