Gudabi v The Queen

[1984] FCA 12

Re: WILLIE GUDABI
And: THE QUEEN (1984) 1 FCR 187
No. NT G17 of 1982
Criminal Law - Criminal Evidence
52 ALR 133

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Woodward(1), Sheppard(1) and Neaves(1) JJ.

CATCHWORDS

Criminal Law - interrogation of suspect - guidelines for interrogation of Aborigines - admissibility of confessional statements.

Criminal Evidence - Interrogation of suspect - Guidelines for interrogation of Aborigines - Admissibility of confessional statements - Consideration of "Anunga Rules" R. v. Anunga.

HEADNOTE

The appellant was tried on two counts of rape. Each of the counts alleged that the rape was committed on the same woman, the first in January 1981, the second in October 1981. He was convicted on the first but not on the second. He was setenced to two years imprisonment but released forthwith pursuant to the provisions of the Criminal Law (Conditional Release of Offenders) Act 1971 (N.T.), upon entering into a $500, two-year good behaviour bond.

The appellant sought to overturn his conviction and sentence on the basis that evidence of certain conversations and a police interview was wrongly admitted. It was argued that the Crown had not shown that they were voluntarily made, also that they should have been excluded as a matter of discretion.

The evidence was that the appellant had touched the woman with a sacred Aboriginal object, which women are forbidden to see or touch or be touched by. By tradition a woman touched with such an object must obey the man's instructions; in this case to have sexual intercourse. In his interview the appellant acknowledged that this was the reason for the intercourse and that the woman had participated because she was frightened of the sacred object.

The police arranged for a prisoner's friend to be present during the interview, at which a second policeman and a police aide were also present. The appellant had explained to him his right to remain silent and that his answers might be used in legal proceedings; he was questioned as to his ability to understand the constable conducting the interview, and he declined the services of an interpreter (the police aide); he was also told that he was free to talk to the prisoner's friend at any time without police permission.

Held: (1) That in dealing with arguments based on an alleged breach of the Anunga Rules (rules or guidelines, set forth in R. v. Anunga (1976) 11 ALR 412, for the conduct of police officers when interrogating as suspects Aboriginal persons and others) two matters must be borne in mind: (a) the guidelines are not rules of law; breach of, or compliance with the guidelines will not be decisive of the question of admissibility; the legal question will always be whether the confessional statement was voluntary in the sense in which that expression is used in relevant authorities; and (b) the guidelines were formulated in 1976; social conditions and values, and community standards and expectations, had changed and were…