Cox v The Queen - [2002] WASCA 358

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: COX -v- THE QUEEN [2002] WASCA 358

CORAM: ANDERSON J
TEMPLEMAN J
OLSSON AUJ

HEARD: 11 DECEMBER 2002

DELIVERED : 19 DECEMBER 2002

FILE NO/S: CCA 164 of 2002

BETWEEN: BRIAN RUEBEN COX
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Appeal against conviction - Guilty plea - Admissibility of video records of interview - Whether compliance with Aboriginal Affairs Planning Authority Act 1972 (WA) - Whether statements were voluntary - Whether discretion should have been exercised to exclude video interview

Legislation:

Aboriginal Affairs Planning Authority Act 1972 (WA), s 49

Result:

Appeal allowed
Convictions and sentences quashed
Questions of sentences for which guilty plea entered remitted to trial Judge for reconsideration
Retrial not ordered

Category: B

Representation:

Counsel:

Applicant: Mr R W Richardson
Respondent: Mr K P Bates

Solicitors:

Applicant: Aboriginal Legal Service
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

R v Swaffield (1998) 192 CLR 159
Simon v The Queen [2002] WASCA 329
Webb v The Queen (1994) 13 WAR 257

Case(s) also cited:

Green v The Queen (2001) 24 WAR 192
R v Azar (1991) 56 A Crim R 414
R v Williams (1992) 8 WAR 265
Smith v Grieve [1974] WAR 193

ANDERSON J: I have read the judgment of Olsson AUJ and agree with it. There is nothing I can usefully add.
TEMPLEMAN J: I have had the advantage of reading in draft the reasons to be published by Olsson AUJ. I am in entire agreement with those reasons, and with the orders which his Honour proposes.
OLSSON AUJ: In this matter the applicant, a child, seeks leave to appeal against certain convictions recorded against him on 7 August 2002 by Judge O'Brien, sitting in the Children's Court of Western Australia at Tom Price, and also the sentences imposed in respect of them. At this stage submissions have been limited to the issues arising in relation to the convictions, it being common ground that, if the appeal is allowed, the proceedings will need to go back to the learned trial Judge for reconsideration of sentence in relation to other offences.
Relevantly, the applicant pleaded not guilty to one count of burglary of the Tom Price Hardware store with intent to commit an offence, one count of burglary of a shed at the Central Primary School at Tom Price and one count of wilful damage by fire of the hardware store. At the conclusion of the trial the learned Judge found the applicant guilty of all three offences and sentenced him to periods of detention to be served concurrently.
The applicant seeks leave to appeal against his convictions on a number of grounds, the amended version of which are expressed at length. However, in essence, he seeks to impugn his convictions on the basis that critical evidence against him contained in a video record of interview ought to have been excluded because he says that:
(1)The requirements of s 49 of the Aboriginal Affairs Planning Authority Act 1972 ("the Act") were not satisfied;
(2)The statements made by the applicant in the course of the relevant video record of interview were not shown to have been voluntary; and
(3)In the alternative, there was unfairness in relation to the conduct of the video record of interview which mandated an exercise of discretion against its admission into evidence.

The factual context

The applicant is an Aboriginal child now aged 15 years. As at 28 October 2001, he resided in the Wakathuni Aboriginal Community, which is said to be about 26 kilometres distant from Tom Price.
At about 6 am on the above date two residents of Tom Price observed smoke coming from the Mitre 10 Hardware store on Stadium Road in Tom Price. By the time fire fighters arrived the premises were ablaze and there was nothing which could be done to save them. They were gutted. In the result stock of the value of about $325,000 was destroyed, as was the building itself.
Fire scene examiners noted that a steel mesh fence around the property had been breached and access gained to the building itself by cutting a lock on a steel and mesh gate from an outdoor sales area. The so‑called "fire language" was consistent with an ignitable liquid being used as a fire accelerant within an office/reception area. Once the fire spread from that area, it was fuelled by flammable materials stored within the building.
On the morning of 29 October 2001 it was found that a green jerry can containing a quantity of petrol had been stolen from a locked storage shed on the grounds of the Tom Price Primary School. It was apparent that the shed door had been forced.
Subsequent to the fire, petrol residue was found on the clothing of an alleged co‑offender, but not on the clothing of the applicant.
At trial the prosecution sought to rely upon the content of two separate video records of interview of the applicant conducted on 28 and 29 October 2001 respectively, both of which were viewed by the Court on the hearing of the present proceedings. I shall, for the sake of brevity, refer to the first as "the first VROI" and the other as "the second VROI". For reasons expressed by her, the learned trial Judge excluded the first VRIO, but admitted the second VROI. She also excluded evidence as to the conduct of the applicant on 29 October 2001 during a so‑called "walk around" by the applicant and the police of locations said to be relevant to the alleged offences.
I digress at this point to note that, at the commencement of the trial, the learned trial Judge appears to have been bereft of any means of recording the evidence and submissions and all that is extant is staccato notes made by the Judge of evidence given by a detective on the voir dire and the applicant at trial. At the point at which the Judge ultimately announced reasons for her findings a hand‑held dictaphone had been found and was used to record what she then said.
The facts and circumstances related to the conduct of the two VROI's and what led up to them therefore fall to be extracted from the notes of evidence and reasons as to admissibility of evidence prepared and published by the learned trial Judge after her return to Perth.
The evidence on the voir dire given by Senior Detective Bourke ("Bourke") was to the effect that he was stationed at Karratha and recalled to duty on the afternoon of 28 October 2001. He arrived in Tom Price at about 4.20 pm. He ascertained that the applicant had been taken into police custody, with others, (as it later appeared) from his uncle's home in Tom Price, where he had been staying. This had occurred at about 10.30 am that day and the applicant had been lodged in the cells, despite the fact that he had not formally been arrested.
Having spoken with local police officers and examined the fire scene, Bourke embarked upon the first VROI, commencing at 5.01 pm. As the learned trial Judge pointed out in her subsequent reasons, the applicant had then been held in custody for about six and a half hours. He had been kept in the cells with three or four other boys in uncomfortable conditions. Each cell contained a mattress, but no toilet or wash basin. An exercise yard attached to the cells had one toilet, no chairs, no mattress, no wash area, no windows and had a heavy mesh. The precise status of the applicant at the time is not entirely clear, but he was certainly not free to leave.
Bourke endeavoured to contact the Aboriginal Legal Service at Carnarvon by telephone to arrange legal representation. Unsurprisingly, at that time of the weekend, he was unsuccessful. The applicant's mother had been located and was present during the conduct of the first VROI.
Having viewed the two VROI's, it may be said that the transcripts of them are accurate, although they, of course, give no impression of the intonations and body language portrayed by the videotapes.
In the course of her reasons the learned trial Judge made these points concerning the first VROI:
•it was clear that the applicant was relatively unsophisticated and not particularly well educated;
•he could not count school grades in the correct numerical order and thought that Tuesday was the day before Sunday;
•the attempt to administer a caution to him had the potential to lead to confusion;
•the applicant was unable to repeat the substance of the caution in his own words and there was no request to him to attempt to explain it after it had been administered a second time. He merely answered "Yeah" to all questions asked of him;
•on the second occasion the overall effect of the explanation of the second limb of the caution actually completely misstated it. The explanation was likely to convey the impression that the applicant would be subjected to some sort of punishment in any event when the tape was produced to the Court;
•although there was some attempt to contact the Aboriginal Legal Service, the applicant was not asked if he wished to defer the interview until he had received legal advice. The concurrence of his mother in the continuance of the interview without a lawyer being present did not ameliorate the fact that the applicant personally was not made to understand his rights to legal advice;
•although the mother was present, her role in the interview was not that of an independent person. She took an active, aggressive stance in support of the police and did not set out to safeguard the legal rights of the child, nor was she supplied with a copy of the guidelines concerning her proper role, as envisaged by the so‑called "Cop's Manual"; and
•the applicant and his mother were not given an opportunity of conferring in private.
It comes as no surprise that the learned Judge concluded that the applicant would not have understood the caution administered to him; the Commissioner's guidelines as to the questioning of juveniles were not followed in important respects; and that not only was the mother not in a position to safeguard the applicant's legal rights, she was also not impartial and made improper intervention bordering on cross‑examination.
The whole of the circumstances led the learned Judge to the conclusion that the statements made by the applicant had not been shown to be voluntary and that, in any event, it would be unfair to admit the first VROI against the applicant. The unfairness arose from the unfair circumstances in which it took place and, having regard to the number of differing versions which the applicant gave as to what had occurred, its inherent unreliability. She therefore excluded it.
Inter alia, the learned Judge had this to say concerning the issue of voluntariness:
"As to voluntariness, the record of interview was conducted after the defendant had been held in spartan [sic] circumstances for six and a half hours. It is likely, even in the absence of evidence from the defendant, that he believed that the police were in charge and that he didn't have a choice in what he did. The caution was not properly explained as to the second limb and, in my view, not understood. The mere affirmative response to leading questions does not in the case of Aboriginal people especially, necessarily reveal that the person understands the caution. In fact, if Detective Bourke is right, that the defendant was under arrest, he didn't have the choice to leave and it would appear, given the circumstances of the incarceration, that had he asked to leave, he would not have been free to go and that he knew that to be the case. This could also have had a bearing on whether he felt compelled to speak.
The defendant's mother regularly commanded him to tell the truth. In those circumstances, coming from his mother (despite there being no evidence as to the relationship between the defendant and his mother), both commands can be categorised as an inducement to speak (R v Beere (1965) QR 370) and therefore lead to a conclusion of involuntariness.
In these circumstances, and considering the defendant's age and intellectual capacity I cannot be satisfied beyond reasonable doubt that the defendant spoke in the free choice to speak or be silent."
The applicant was released after the first VROI and appears to have returned to the Wakathuni Community some time that evening. The informal process of release strongly confirms the fact that, contrary to Bourke's initial impression, the applicant had never been formally arrested or charged prior to the interview.
Shortly after 10 am the following morning Bourke, another detective, an Aboriginal police aide and two police vehicles (including a so‑called "cage" van) arrived at the Wakathuni Community.
The learned Judge found that the police spoke to a senior person at the Community who "rounded up" several young children. Four boys, including the applicant, were put in the back of the van. According to police, before being placed in the van, the boys were told "en masse" "what was going on" and asked if they "would come down to the station". They were not told that they did not have to go with the police. It was said that the applicant's mother was spoken to at the Community and agreed to her son going back to the police station. She obviously accompanied the group back to Tom Price.
On arrival at the police station the van stopped in the courtyard. The boys were told to tell the truth [concerning the fire], as the police wanted "to sort things out". Another Aboriginal child, Payden Tucker, was already at the station and Bourke elected to interview him first. The uncontroverted evidence of the applicant was that, while this occurred, he and his mother were put in one of the cells. It is suggested that they may well have been there for over two hours. He had not been arrested.
The learned Judge found that, because there was a clear conflict between what Payden Tucker told the police and what had been said by the applicant during the first VROI, the police asked the applicant to physically take them to various relevant locations "to show them what had happened and where". Bourke acknowledged that, at that point, as a result of what Payden Tucker had told them, he believed there was enough evidence to charge the applicant and he intended to charge him.
No caution was administered to the applicant prior to the walk and no notes or other record were made as to what was said or done.
It is clear that the group went both to the school shed and the scene of the fire. Bourke said that the applicant walked over the course of what were said to have been the relevant physical events and, as the learned Judge expressed it, "made admissions as to how everything happened and how the two boys [ie, Payden and the applicant] got the fuel".
The learned Judge summarily excluded the proposed evidence of what was said during the walk on the basis that it was not shown that what was said and done was voluntary.
At the conclusion of the walk the second VROI took place. Once again the applicant's mother was present as the independent person. On this occasion she remained silent for most of the time.
The interview commenced with a caution which was somewhat more intelligible than on the first occasion. When the applicant was asked to repeat the substance of it, his response was "I forgot". Bourke explained it again in a series of statements or questions, to each of which the applicant simply responded "Yeah", largely as he did on the occasion of the first VROI. Although it was a normal working day, no attempt was made to contact the ALS or otherwise secure legal advice for the applicant.
The learned Judge said that, on viewing the video of the second VROI, she had the impression that the applicant understood what was being said to him, when cautioned, as to the first limb of it.
She went on to comment:
"I have already found that when the caution was explained in the first record of interview that the defendant did not understand what it mean. There is nothing to indicate that his mother was any more aware of the defendant's rights and able to protect him than in the first record of interview. The defendant's responses 'yeah' to a number of explanatory propositions put to him do not of themselves mean that he did understand the caution nor that he did not understand the caution. I cannot be satisfied beyond reasonable doubt that he understood all of the caution. However, his demeanour generally for the interview and given that the first limb had been correctly explained the day before, I am satisfied that he understood it. There is no evidence in my view that his will was overborne notwithstanding the circumstances of his collection from the Community and surrounding the taking of the formal interview.
In my view, there is no evidence sufficient to establish that the defendant was unlawfully detained. There is no evidence that his mother objected to the defendant's detention. In fact, the evidence is to the contrary. There is no evidence that the defendant objected, although such objection would be unlikely given his age and the police officers' positions of power.
All in all, I am satisfied beyond reasonable doubt that when the defendant spoke to the police the second time, he did so in the free choice to speak or be silent.
If I were to consider whether to exclude the record of interview in the exercise of my discretion applying the principles outlined above, I would not exclude it."
I must confess that, both as a matter of logic and having also viewed the video for myself, I do not understand those conclusions.
It seems inappropriate to relate any level of understanding on this occasion to what had transpired, in a most confusing and unsatisfactory scenario, on the previous occasion. Moreover, there was nothing in the observed demeanour of the applicant on the second occasion to indicate that the level of comprehension of this unsophisticated and largely uneducated child was any higher than the previous day. He again simply answered "Yeah" to virtually all questions asked of him in a manner which is typical of Aboriginal people in such situations and, of itself, is no reliable indication of any positive comprehension at all.
It seems that the learned Judge was influenced by the fact that, on the occasion of the second VROI, the applicant spoke and narrated the facts in a far more fluent, understandable and consistent manner than he had previously exhibited. However, it is not known what had been said to him between the two records of interview and particularly after the interview with Payden Tucker and during the walk around. All that need be said is that it would be most surprising if, against what had occurred immediately preceding the second VROI, the applicant was not able to tell a far more coherent story. I do not consider that much comfort could be derived from the improved coherence and am firmly of the view that there was insufficient reason to believe that the applicant comprehended the caution put to him on the second occasion any more than he did on the first. I am of the opinion that the learned Judge fell into error in concluding otherwise.
I will return to the topic of voluntariness in due course.
The second VROI was duly admitted into evidence. In the course of it the applicant conceded that he and another Aboriginal boy referred to as Robbie Junior had broken into the Mitre 10 Hardware Store and stolen some money from it. They noticed a surveillance camera in the store and tried to destroy it by spreading some liquid around and igniting it. This attempt failed, whereupon the two boys left the store, broke into the school shed and took a jerry can of fuel, returned to the store, spread the fuel around, lit it and decamped.
The admission of that evidence virtually compelled the applicant to enter the witness box. He did so. Whilst he admitted the initial break‑in, the taking of some money and the abortive attempt to destroy the security camera, he denied participating in the shed break‑in or the returning to the store and setting it alight. He said that he had returned to a person's home in the town and gone to sleep. It was Robbie Junior who had been responsible for the fire. He claimed that, during the walk about, the detectives had forced him to talk about the shed and other matters.

It is fair to say that the learned Judge eventually convicted the applicant substantially on the basis of what was said by him in the second VROI.
It is important to reiterate that the forensic evidence disclosed petrol residue on the clothing belonging to Robbie Junior, but none on the clothing of the applicant. However, the learned Judge said that she placed this in the "neutral basket" because it was said that Robbie Junior "was the one who spread most of the petrol around".

Was s 49 of the Act complied with?

It is clear that, at trial, the learned Judge well appreciated her obligation pursuant to s 49 of the Act.
That section is expressed as follows:
"(1)In any proceedings in respect of an offence which is punishable in the first instance by a term of imprisonment for a period of six months or more, the court hearing the charge shall refuse to accept or admit a plea of guilt at trial or an admission of guilt or confession before trial in any case where the court is satisfied upon examination of the accused person that he is a person of Aboriginal descent who, from want of comprehension of the nature of the circumstances alleged, or of the proceedings, is or was not capable of understanding that plea of guilt or that admission of guilt or confession.
(2)The provisions of sub‑section (1) are in addition to, and not in derogation of, any rule of law or practice relating to the admissibility of pleas of guilt or admissions of guilt or confessions."
It is not in dispute that the circumstances revealed by the material before the learned Judge were such as to mandate the conduct by her of an examination of the applicant in terms of the statute. She did so, apparently at the stage of other voir dire aspects. Unfortunately, and no doubt for reasons beyond her Honour's control, there is no record extant as to what was said or done in the course of it, beyond the content of the reasons prepared by the learned Judge when she returned to Perth. In those reasons she stated that such examination was limited to an ascertainment of whether "the defendant had a want of comprehension of the proceedings" and was not "directed to the other matters for examination outlined in s 49". This led to a somewhat curious end result.
Her eventual conclusion commenced:
"If I were to rely only on my examination of the defendant, I would not be satisfied that he had the relevant capacity. He was not able to tell me what my job was as the Judge, why he was in court, his date of birth and all of the subjects he studied at school. However, he did know that what the police do to someone who does something wrong, namely arrest the person."
Having earlier expressed the view that:
"The 'proceedings', in my view, can either refer to the court proceedings, where for example, the examination is directed towards ascertaining if a defendant understands a plea of guilty, or to the proceedings during the record of interview where a pre‑trial admission is under consideration."
She later said:
"The defendant's language in the records of interview was simply expressed but comprehensible and he did not appear to have any difficulty in understanding the questions put. There are a couple of occasions when the answers to questions bore no relation to the question asked but of itself, this does not cause me to doubt his capacity.
In some cases during the records of interview, the defendant corrected the police officer's summary of what he had told them.
Taking into account the circumstances surrounding his second record of interview, I am satisfied that the defendant understood the 'proceedings', namely, the proceedings at the second record of interview. I therefore decide to admit the evidence of that interview."
These remarks contain some degree of inconsistency concerning the level of the applicant's capacity and convey the impression that the learned Judge did not specifically address the issues adverted to by Roberts‑Smith J in Simon v The Queen [2002] WASCA 329.
He there made the point that the trial Judge is obliged by s 49 to have regard, not only to the content of any interview or statements constituting the alleged admissions, but to the accused's demeanour whilst testifying on the voir dire or otherwise being examined in the court, to determine whether or not that person was capable of comprehending the circumstances under which he had foregone his right to remain silent and under which he had confessed and whether he was a person capable of understanding any confession made.
Roberts‑Smith J stressed that the lack of capacity of which the section speaks is a lack of capacity due to a want of comprehension of the nature of the circumstances alleged or of the proceedings. He pointed out that authorities such as Webb v The Queen (1994) 13 WAR 257 closely relate comprehension to reliability or accuracy of the accused's answers. This goes well beyond the issues of voluntariness and the understanding of a caution. It goes to the very essence of the integrity of the confession, particularly bearing in mind language and cultural difficulties which often arise with Aboriginal persons, including cultural considerations going to such things as gratuitous acquiescence, suggestibility and a lack of conceptual comprehension. He went to say:
"In Webb, Ipp J further elaborated on the nature of the relevant understanding at 267:
'… his Honour was obliged under s 49, to have regard not only to the conversations but to the appellant's demeanour, while testifying in the voir dire, to determine whether the appellant was capable of comprehending the circumstances under which he had forgone his right to remain silent, and under which he had confessed, and, whether he was a person capable of understanding the confession that he had made.'
In the present case there was no consideration of the question whether the appellant was capable of 'comprehending the circumstances under which he had forgone his right to remain silent', nor those circumstances 'under which he had confessed' nor whether he was 'a person capable of understanding the confession that he had made.' It is most unfortunate that counsel for the appellant at the trial did not raise the matter again after the ruling on the voir dire, particularly as the learned trial Judge had expressly queried at the outset whether s 49 of the Act was an issue."
The fundamental problem which I have is to perceive how the findings related to the direct examination of the applicant and the content of the first VROI can logically be overcome by reference to the second VROI, given the circumstances leading up to the latter and the impact which they may well have had on the seemingly improved performance of the applicant on 29 October 2001. It must firmly be borne in mind that, absent a voir dire in which the applicant participated as a witness, the primary basis for decision making had to be the examination itself - a process which gave rise to considerable doubt as to the level of comprehension of the applicant. As a matter of logic, what is seen in any VROI can only be secondary material tending to confirm or put in question the tentative view arising from the examination. The first VROI strongly confirmed the conclusions suggested by the examination. The second VROI was that to which the examination was, relevantly, directed. It stood in some contrast with the examination and it seems to me that the learned Judge impermissibly substituted it for that process. The purpose of the examination was to test the validity of the VROI in question. In actual fact it raised serious question marks concerning it. The danger inherent in the reasoning adopted is highlighted by those circumstances which raise serious questions concerning the proper admissibility of the second VROI for other reasons, to which I will shortly turn.
I therefore consider that the reasoning of the learned Judge with regard to the s 49 considerations was not in accordance with the requirements of that section.

Should the second VROI also have been excluded on other bases?

In my opinion, a critical consideration in reviewing the second VROI is the context in which it took place.
As to this, these features are of vital importance:
(1)The conduct of the interview closely followed the events of the preceding day, which necessarily lent colour to it and formed an integral part of the backdrop against which it took place.
(2)On that day the applicant, an unsophisticated and poorly educated Aboriginal youth aged 14, had been locked in a cell in primitive and uncomfortable conditions for no less than six and a half hours, without formal arrest. He was then subjected to a lengthy interview in relation to which -
•he was given a highly confusing and inappropriate caution which he plainly did not understand;
•he had no opportunity to obtain legal advice;
•his mother was adopting an aggressive attitude towards him, to the point that, effectively there was no independent person looking to his interests; and
•there had been breaches of the Anunga rules and the Commissioner's guidelines.
(3)At the last‑mentioned time he was confronted with adults in positions of authority and, as he later testified, had actually been threatened by another offender. Quite clearly he was not free to leave, he was being hectored by his mother and there was every reason for him to believe that he could not exercise a free choice to speak or be silent.
(4)It is impossible to imagine and I cannot accept that, when the police arrived at the Community with two vehicles, including a cage van, hard on the heels of what had occurred the previous day and the applicant was asked to come to the station and placed in the van (albeit with no apparent objection from the elders of the Community or his mother), the applicant would have thought that he had some choice in the matter. This was especially so when he was not informed that he did in fact have a choice.
(5)On arrival, placement in the cells again for a substantial period merely served to reinforce an impression that the applicant was under the control of the police.
(6)The walk around without a caution and in a situation of non‑compliance with the relevant guidelines, no attempt having been made to secure legal assistance, also set a scene suggestive that the applicant had no practical option but to do what was required of him.
(7)When the second VROI was embarked upon, it was patent from his responses that the applicant had no better appreciation of the meaning of the caution administered to him than was the case on the previous day. It is to be recalled that, when asked to say in his own words what it meant, his response was "I forgot". Repeating essentially the same things again and eliciting a series of responses "Yeah" did nothing to provide any compelling evidence that he truly appreciated the effect of what was said to him. Having viewed the relevant videos, I cannot accept that the demeanour of the applicant on the second occasion indicated that the applicant did comprehend the meaning and effect of the caution.
On the occasion of the second VROI the applicant had not been arrested, but the compelling inference in the circumstances is that he would not have appreciated that he was free to leave if he wished to do so; or that his responses to questions were the product of a free choice to speak or be silent. With great respect, the contrary conclusion of the learned Judge is not sustainable. The whole continuum of events was such as to create an environment in which this young Aboriginal child must have seen himself in a completely powerless situation and subject to the authority of the police officers. The learned Judge's notes record that he testified that the police "kept on forcing" him to tell them things. He would have been pardoned for believing that he had no option but to comply with their wishes, bearing in mind his treatment up to that point.
With all due respect, I consider that the learned Judge failed to place the second VROI in its overall true context and that her perspective of it did not recognise the reality of the situation.

Conclusion

In my view, the circumstances before the Court demanded findings that the prosecution signally failed to discharge its onus of demonstrating that the statements of the applicant in the second VROI were voluntary and also that, in any event, it was unfair that they be admitted into evidence. They were certainly extracted at a price which was unacceptable, having regard to prevailing community standards (R v Swaffield (1998) 192 CLR 159 at 194, 202). Furthermore, as I have demonstrated, the s 49 process clearly miscarried.
In arriving at the foregoing conclusions, I by no means ignore the difficulties attendant upon investigation of offences and the conduct of criminal trials in remote locations, especially when young Aboriginal children are involved. However, in the instant case it must be said that the approach of the authorities left a good deal to be desired and paid less than lip service to the relevant guidelines. A consideration of the issues on this appeal has also not been assisted by the apparent dearth of appropriate reporting or recording facilities during the trial process.
I would allow the appeal and set aside the convictions and sentences appealed against, but would not order a retrial. The sentences in respect of the matters which were the subject of guilty pleas will need to go back to the learned Judge for reconsideration in light of her intimation that, but for the convictions relating to the fire, she would have dealt with those matters in a different fashion.