Djanghara v The State of Western Australia

[2008] WASC 102

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   DJANGHARA -v- THE STATE OF WESTERN AUSTRALIA [2008] WASC 102

CORAM:   McKECHNIE J

HEARD:   2 APRIL 2008

DELIVERED          :   2 APRIL 2008

PUBLISHED           :  3 JUNE 2008

FILE NO/S:   IND BRO 70 of 2007

BETWEEN:   CLARENCE DJANGHARA

Applicant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law and procedure - Voluntariness of interview - Whether statement 'It will be to your advantage' an inducement - Whether by person in authority

Legislation:

Criminal Procedure Act 2004 (WA), s 98

Result:

Interview admissible

Category:    A

Representation:

Counsel:

Applicant:     Mr G P Bauman

Respondent:     Mr C Williams & Ms F M Clare

Solicitors:

Applicant:     Aboriginal Legal Service (WA)

Respondent:     Director of Public Prosecutions (WA)

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

Tofilau v The Queen [2007] HCA 39; (2007) 238 ALR 159

1. McKECHNIE J:  This is an application to rule inadmissible a written record of interview and a subsequent video record of interview taken from the applicant ('accused') in April 2007, on the basis that each was involuntary and/or ought to be excluded in the exercise of discretion.  I have been greatly assisted by comprehensive written submissions on both sides, which have focused the issues and meant that counsel have not needed to address extensively on matters of law, all of which, I should say, I have previously considered. 

2. A confession is only admissible if made in the exercise of a free choice to speak or remain silent.  It is inadmissible if made as a result of an inducement by a person in authority, that inducement not having been categorically removed. 

3. I will deal with the record of interview.  This came about when the accused attended the police building at Kalumburu, apparently on another matter, and was requested to take part in an interview.  He declined to go on camera and I am satisfied that this constitutes an excuse sufficient to justify the reception into evidence of the record of interview if it is otherwise admissible.

4. The accused sought the assistance of his wife as an interview friend and the interview was suspended shortly after it began, until she was fetched and brought to the premises.  In the course of the interview she left the room - I think on two occasions ‑ but the choice of interview friend was the accused's.  It is not for the police to specify who the friend should be. 

5. The record of interview is not complete.  It does not say what words were spoken to explain the caution or to ensure that the accused understood it.  There is no basis, however, for me to reject the evidence of Senior Sergeant Terms as to the administration of the caution and the accused's responses to it.  The record of interview is unsigned, except for the last page, where it is signed by both the accused, his wife and the two police officers.  This raises potential questions about its reliability but, after consideration, I have decided it is not of itself a sufficient basis to reject it.

6. There may well be issues at trial, with a caution necessary to be given to the jury about it, but those matters do not at this stage affect its reception into evidence.  The accused is a 43 year old tribal Aborigine, who has lived most, if not all, his life in the Kalumburu Community.  He is of limited schooling.  Over the years he has held a variety of leadership positions within the community and is regarded as, 'smart' by Father McPhee, who has known him for 25 years.

7. I have observed him on the subsequent video.  I am satisfied, as I say, that the accused was cautioned.  I am also satisfied that he understood the caution.  I am satisfied that the record of interview was obtained voluntarily, that is, in the exercise of his choice to speak or remain silent.  No basis for the discretionary rejection of that interview is established. 

8. I turn to the video record of interview.  Two matters of challenge are particularly identified by Mr Bauman, counsel for the accused.  I will deal with each. 

The caution

1. The caution was first given, then explained by Detective Senior Constable Barber, in circumstances described by Father McPhee in his evidence:

   They ‑ (the police) ‑ couldn't have been more sensitive or more obliging in their wording and everything.  (ts 20)

2. Further on:

   I couldn't believe the detectives would be so nice.  (ts 21)

3. I am quite satisfied that the accused understood the caution.  I reach this conclusion from his answers, read in context to the questions asked.  They demonstrate to me the understanding of a man who knows he may speak or not, as he chooses.  He may well have been a reluctant participant in the record of interview but I am satisfied that he was nevertheless a voluntary participant and he spoke in knowledge of his choice.  Moreover, the caution was repeated at various points throughout the interview and on occasions when he appeared to acknowledge it. 

The intervention

1. I turn then to Father McPhee's intervention.  It occurred this way:  after the accused had raised an issue about the previous record of interview, Doyle said:

   I am a sergeant, do you want me to read it to you?

2. There was then some discussion and he said:

   Yeah, that one too.  With that one, we need to ask you questions about that one.  We need to clarify things. 

   I don't understand, sir.

   Okay.  With that one, we just need to ask you more questions about what happened.  In your statement there you said to us some silly things happened with some girls.  We just need you to tell us in your own words what happened because there might be an explanation as to what happened.  We don't get the explanation properly in reading the paper.  It comes - can understand it coming from your mouth.  Do you know what I mean?

3. The transcript then records 'indistinct' but my note is that the sergeant took this as affirmative.  The question was, 'Okay. Well, I'll read it and do you mind if I ask you a question or two if I don't understand something?'  Father McPhee then intervened, 'I think you should, yeah.  It will be to your advantage' ‑ this directed to the accused.

4. I doubt that Father McPhee is legally a person in authority having the ability to affect the course of the investigation.  As a matter of law, I consider he is not: Tofilau v The Queen [2007] HCA 39; (2007) 238 ALR 159. However, I put that to one side and will decide the issue on the facts.

5. It is true that the mission superintendent was called 'Father' and was a person in authority while the accused was growing up and the accused may well have regarded the mission superintendent as a person in authority.  However, the community became independent as long ago as 1981.  Father McPhee does not regard himself as a person of authority within the community or as having the ability to influence a police investigation, though the police do from time to time seek his advice.

6. The accused is, as I have said, a leader of the community in his own right.  There is no evidence that he regarded Father McPhee as having authority over him.  He chose him as a friend to accompany him in the interview room.  That is all.

7. Crucially, at page 46, towards the end of the interview the officer asks:

   Do you agree the questions that you've answered you've answered of your own free will?---Yeah. 

   Okay.  Have any of us threatened you to talk to us?---No.

   Okay.  Have we offered you anything to talk to us?  Has the father made you talk to us? 

8. Although the transcript records 'indistinct' my note is that there was an answer ‑ 'No' ‑ accompanied by a negative shake of the head. 

9. Finally, I consider that any effect that Father McPhee's words may have had was immediately removed by the interviewer who said immediately thereafter, 'Okay.  You don't have to answer my questions but I'll ask you as I go'.

10. Having looked at the video record of interview in its entirety and having borne in mind the submissions made by Mr Bauman concerning the accused who, as I say, is obviously an Aboriginal from a remote Indigenous community, without the benefits that others might have in understanding an interaction with police, I am nevertheless quite satisfied on the balance of probabilities that the video record of interview was a voluntary statement by the accused and that there is no basis also to reject it in the exercise of a discretion.  I therefore rule that both may be led at the trial.