Headland (a pseudonym) v The King

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0171

RENEE HEADLAND (a pseudonym)[1]	Applicant
v
THE KING	Respondent

[1]So as to prevent any risk of prejudice to the proper administration of justice, these reasons for judgment have been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	EMERTON P, PRIEST and KENNEDY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	27 July 2023
DATE OF JUDGMENT:	3 August 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 174
JUDGMENT APPEALED FROM:	DPP v [Headland] (Unreported, County Court of Victoria, 22 November 2022, Judge Ellis)

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CRIMINAL LAW – Interlocutory appeal – Admissions – Grounds for exclusion – Record of interview with police – Applicant an indigenous woman with a history of domestic abuse – Whether truth of admissions adversely affected by circumstances – Whether circumstances made use of admissions unfair to applicant – Leave to appeal refused – Evidence Act 2008, ss 85 and 90.

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Counsel
Applicant:		Mr D McGlone
Respondent:		Mr L McAuliffe
Solicitors
Applicant:	Leanne Warren & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON P
PRIEST JA
KENNEDY JA:

Introduction

The applicant faces trial in the County Court for an aggravated burglary allegedly committed on 30 September 2018.
Prior to the empanelment of a jury, relying on ss 85(2) and 90 of the Evidence Act 2008 (‘the Act’), the applicant’s counsel sought the exclusion from evidence of admissions contained in a record of interview conducted with the applicant by police on 2 October 2018.
By a ruling dated 22 November 2022 (‘the ruling’ or ‘the interlocutory decision’), the judge refused to exclude the admissions in the record of interview.
Pursuant to certification by the trial judge under s 295(3)(a) of the Criminal Procedure Act 2009 (‘CPA’) given the same day, the applicant seeks leave to appeal against the interlocutory decision on a ground[2] that contends that the trial judge erred in —
… failing to take into account a relevant consideration when exercising her discretion under sections 85 and 90 of [the Act], namely, that the Applicant is an Aboriginal woman who has been a victim of domestic abuse.
[2]The applicant abandoned a second ground, that the trial judge ‘erred in the exercise of her discretion in that she applied the wrong test in determining the admissibility of the record of interview in accordance with section 85’.
In our view, the ground is without substance. For the reasons that follow, we would refuse leave to appeal.

The prosecution case

As set out in the Summary of Prosecution Opening,[3] the prosecution case is that in the evening of 30 September 2018, two armed men, Ken Salmi (‘Salmi’) and Chris Binder (‘Binder’), forced their way into the home of Anthony Grima (‘Grima’) in Sunshine. Salmi is the applicant’s former partner. Caitlyn Salmi is his niece. Binder is Caitlyn Salmi’s former partner.
[3]See CPA, s 182.
The prosecution alleges that the applicant was complicit in the aggravated burglary committed by Salmi and Binder, in that she drove the two men to Grima’s premises in her Commodore sedan (and waited in the car for them to return), knowing that they were armed and were intending to threaten and intimidate Grima after they gained entry into his premises. In the alternative, the prosecution alleges that at the time the two men entered Grima’s house, a person was present in his home and the applicant knew a person was present (or was reckless as to whether or not a person was then present).
Salmi had for some time been friends with Caitlyn Salmi, who was much younger than he was. The day before the alleged aggravated burglary, Salmi had gone to Grima’s home and confronted Grima about his suspicions that Grima had been supplying his niece with drugs. The applicant had driven Salmi to Grima’s home on that occasion knowing that Salmi was armed with a knife.
At about 7.45 pm on Sunday, 30 September 2018, Grima was at home with a friend, Belinda Showler (‘Showler’), preparing a meal when he saw via a closed circuit television (‘CCTV’) monitor two males enter his gate. Grima then opened his front door and recognised Salmi. He also saw a male he did not recognise holding a knife. Fearing a confrontation, Grima tried to close the door, but the two males barged in. They threatened Grima with weapons and demanded money and drugs. Grima managed to escape, however, and called emergency services. After Grima had fled, the two men permitted Showler to leave. They then loaded some of Grima’s personal belongings and tools into the applicant’s car, parked near the entrance to the property, before Salmi set fire to the premises.
Subsequent police investigation located CCTV footage from a nearby property, which revealed the applicant’s Commodore sedan driving away at 7.58 pm. Two days later, on 2 October 2018, police executed a search warrant at the applicant’s premises in Keilor Drive. She was not home at the time and police did not locate any items of any evidential value. Later that day, however, the applicant attended at the Sunshine Police Station to pick up her son, and, when questioned, confirmed that she was the owner of the Commodore sedan that had been at the scene of the aggravated burglary, and that she had been in possession of the car over the previous weekend. As a result, she was arrested and cautioned.
Police then conducted a record of interview — which was audio and video recorded — with the applicant concerning her involvement in the alleged aggravated burglary at Grima’s premises. In the course of the interview, the applicant admitted that she drove the two men to Grima’s home. She told police that she had known Salmi for over 20 years, and that she and Salmi had a son together. The applicant said that she had not seen Salmi since 2010, until she ran into him at a club, on Thursday, 27 September 2018. When they met that night, Salmi told the applicant that his family was concerned about his niece’s drug use and wanted him to do something about it. The applicant told police that, although she had not seen Salmi for about eight years, she had kept up with his niece. She told Salmi that his niece was using GHB and ice, and was getting her drugs from an older man called ‘Anthony’ or ‘Tony’ who lived in an industrial area in Sunshine. The applicant said that she told Salmi that she had seen his niece in bed with Anthony and assumed that Anthony was giving her drugs in exchange for sex. She told police that, after meeting him in the club, she continued to see Salmi over the ensuing days.
The applicant told the police that on Saturday, 29 September 2018, she met Salmi at a reserve and drove him to Anthony’s house. On the way there she noticed that Salmi was holding a knife, and she was concerned about what she was getting herself into. She told police that when they arrived at Anthony’s house she remained in the car and she saw Salmi approach the house. The applicant said that she heard a lot of yelling and banging, and that when Salmi returned to the car he had a bump on the side of his head. Salmi told her that Anthony had hit him with a baseball bat. He also told her that he did not find any GHB and that he was disappointed. The applicant told police that they went back to Anthony’s place later that evening because Salmi thought that Anthony had GHB and he wanted to find it. When they returned, she remained in the car. Once more, Salmi entered but came back empty-handed.
Further, the applicant told the police that she again met Salmi at a reserve on Sunday, 30 September 2018. They then drove to Melton to pick up Binder, whom she knows to be Caitlyn Salmi’s ex-boyfriend. The applicant said that they then drove to Caitlyn’s house, where Salmi confronted a male who was present. Whilst Salmi was talking to the male he asked for the male’s phone. When the male handed it to him, Salmi smashed it and put it down a drain. The applicant told police that from Caitlyn Salmi’s place she drove Salmi and Binder to Anthony’s place. On the way, the men were calling Anthony names, and she thought that they were going there to scare him so as to stop him from supplying drugs to Caitlyn Salmi. The applicant told police that she did not see Salmi or Binder with weapons. She thought that they were going to use their fists to scare Anthony and to ‘punch’ him.
The applicant told police that when they arrived at Anthony’s home she remained in the car and Salmi and Binder went in. After a while she saw a male run from the house, and she assumed that the male was Anthony. She said that Salmi and Binder then returned to her car with some items, and she pressed the boot release button so that they could put the items in her car’s boot. As they were leaving, she noticed that Anthony’s house was on fire and Binder told Salmi that he should not have done it. When police asked the applicant if she tried to stop Salmi from going to Anthony’s house, she told them that Salmi was determined and that she was not capable of stopping him. And when police asked the applicant why she did not tell Salmi that she did not want to be a part of his plan she told them that she could have done that but that she did not because she still loved him.
Following completion of the record of interview the applicant made a written statement to police. In effect, the written statement was a recapitulation of what the applicant had told the police in her record of interview earlier in the day.

The application to the trial judge

As we have said, relying on ss 85(2) and 90 of the Act, the applicant’s counsel made an application to the trial judge for exclusion of the applicant’s record of interview with police. In the course of the application, the applicant’s counsel led evidence from Dr Paul Grech, a clinical psychologist; and the prosecution introduced evidence from both Dr Peter Ashkar, a consultant forensic psychologist and clinical neuropsychologist, and Detective Senior Constable Gabriella Holt, who, together with Detective Senior Constable Kate Lynch, had conducted the record of interview.
Dr Grech gave evidence that the applicant had been referred to him by The Gathering Place, a medical and psychiatric establishment which assisted people from indigenous backgrounds. His evidence was that the applicant’s initial referral was in relation to her acute anxiety, panic attacks, history of sexual abuse as a 15-year-old, history of domestic violence and sexual, physical and emotional abuse in the context of her relationships (during the course of having had five children), and difficulties with the Department of Human Services. The applicant had been his patient on and off for almost six years. His treatment had consisted primarily of cognitive behaviour therapy, together with supportive therapy. There are some elements of psychodynamic therapy, and at times there has been a focus in relation to her suicidal ideation and thoughts, given that there is a history of attempted suicide by overdose of prescribed medications.
In the course of his evidence, Dr Grech said that the applicant was poorly educated (having barely completed Year 8), and he had a ‘strong suspicion’ that her level of intellectual ability would most likely fall somewhere around the borderline range of functioning. Her levels of distress and anxiety had been compounded by drug use which, at the time of the record of interview, included cannabis, methamphetamine and GHB. Dr Grech also gave evidence of the applicant’s excessive alcohol consumption, and drew attention to that part of the record of interview in which she told police that she and Salmi had consumed 10 bottles of Jack Daniel’s bourbon in the days leading up to the interview.
Dr Grech’s view was that at the time of the interview the applicant was under the influence of illicit substances, and was somewhat intoxicated. He opined that the applicant’s circumstances were exacerbated and compounded by the use of illicit substances. She was sleep-deprived, which would have had a great impact on her cognitive function. Dr Grech said that as a result of her withdrawal from alcohol, and recent contemporaneous use of ice, the applicant’s brain would in effect have been scrambled and working at cross purposes. She would have been extremely sleep deprived, but the residual effects of the methamphetamine would have been keeping her awake (with a whole range of cognitive and psychological effects). Dr Grech had extreme concerns about the applicant’s level of cognitive functioning. His evidence included the following:
[DEFENCE COUNSEL]: I want to return back to the specifics of the interview. Firstly I note that – well this is an observation but it’s referred to in the report of Dr Ashkar. And he makes an observation that says, if I get it right, ‘Her eyes looked a little heavy and she leaned forward and slouched over the table at times suggesting fatigue and/or the effects of a (depressant) substance that slows the central nervous system’. What do you say about observations about [the applicant’s] behaviour in that form during the course of the record of interview? And what do you say it means?---Yeah look my – my observations were again precisely the same and ah it’s a little bit like trying to drive a motor vehicle whilst um having your foot firmly on the accelerator and the brakes and the handbrake at the same time. So in other words you’ve got the effects of um alcohol, recent alcohol use and um certain medications she was prescribed at the time that are CNS depressants um whilst at the same time she’s affected ah by withdrawal from alcohol and recent contemporaneous use of ice which is a highly stimulating innovating medication. Um so the problem there is her brain’s ah scrambled and working across purposes. She’s – her body is desperate for sleep. She’s extremely sleep deprived. But the ah residual effects of the methamphetamine is that its physically keeping her awake um but it has a whole range of ah cognitive and psychological effects.
Which certainly are far from ideal in terms of her memory concentration, understanding of her surroundings and certainly for someone with a borderline intellect to begin with an awareness of the legal processes and proceedings and her rights, which she did raise, uh, at the start of the interview; but it wasn’t even clear, um, listening to the interview and listening to the interview again, why exactly it was the case that, for someone with, um, an indigenous background who expressed an interest in having, uh, uh, some, uh, legal, uh, assistance or legal rights, then deciding that she didn’t want to proceed with that. It certainly wasn’t a very clear process to me, watching that, um, interview unfold, exactly why, um, she hadn’t been given more of an opportunity to exercise those rights.
The following passage of his evidence, in which the trial judge sought clarification of the applicant’s purported alcohol and drug intoxication, is illuminating:
[HER HONOUR] … You said that she told you she had been under the influence of ice [methylamphetamine] and alcohol?---Yes.
And she was somewhat intoxicated at the time of the interview?---Yes.
Did she tell you when she had taken the ice, first of all?---Yes. Yes, sorry. It was - - -
When did she say she had taken it?---From my recollection, it was in the days leading up to the, uh, police interview; you, but she was also using ice on a regular basis in that period of time contemporaneous to the, uh, record of interview, leading up to it.
And what about alcohol? When did she say she had consumed alcohol prior to the interview?---Within 48 hours of the, uh, police interview.
Did she say how much?---I think from memory 10 Jack Daniel’s bottles which were consumed, not entirely - - -
Ten Jack Daniel’s bottles consumed within 48 hours of the interview?---Yes. Yes.
By her alone?---Not necessarily by her alone, but she indicated to me that she had a bulk of that alcohol. But that’s also in the context of someone who was consuming alcohol on quite a regular basis during that period in her life.
Dr Ashkar, who had assessed the applicant at the request of the prosecution, was called by the prosecutor. Tests he had administered put the applicant’s general intellectual ability into the borderline range. Having reviewed the record of interview, Dr Ashkar was of the opinion that it provided no evidence of emotional, psychiatric or cognitive impairment in the applicant that might have precluded her from understanding her rights and the caution given to her by police. He said that examination of the applicant’s mental state at interview revealed her to be calm and relaxed with no evidence of anxiety. Her eyes looked a little heavy and she spoke with an unsophisticated vocabulary, but her speech was reasonably well-articulated throughout the interview and inconsistent with heavy intoxication. In Dr Ashkar’s opinion, the applicant’s responses to questions during the interview were consistently on point, providing further evidence of her comprehension. The applicant was observed to complete the police officers’ questions accurately and to correct their understanding of her account. This clearly showed the applicant to be attentive and to understand the questions put to her. Dr Ashkar opined that if the applicant was affected by fatigue or substances at the time of the interview, it is not apparent from the video of the interview that those factors prevented her capacity to understand her rights or the police caution.
Detective Holt also gave evidence at the behest of the prosecution. Her evidence was that if she had believed that the applicant did not have a good understanding of the questions being asked, she would have suspended the interview. She did not dissuade the applicant from contacting the Victorian Aboriginal Legal Service. Had the applicant definitively expressed a desire to speak to a lawyer, Detective Holt said, she would have stopped the interview and given the applicant that opportunity. Detective Holt conceded that the applicant became tired during the interview, but not to the extent that Detective Holt believed that she was not concentrating or comprehending the questioning. Had it got to this point, Detective Holt said, she would have suspended the interview. Detective Holt gave evidence that she did not believe the applicant was under the influence of alcohol or drugs at the time of the interview.
The applicant did not give evidence on the voir dire.
In very brief summary, counsel for the applicant submitted that, in accordance with s 85(2) of the Act, the admissions in the record of interview were not admissible. Taking into consideration the evidence concerning the applicant’s personality and education, together with her mental and intellectual functioning, in circumstances where she had ingested a combination of prescription medication, illicit substances and alcohol, it is likely, counsel submitted, that the truth of any admissions made by the applicant in the interview were adversely affected. Counsel submitted that the applicant’s ‘experience of domestic violence and her experiences as an indigenous woman … becomes another operative issue’. Courts have recognised in the case of Aboriginal people that the effects of profound social deprivation do not diminish over time.[4] Alternatively, having regard to the circumstances in which the admissions were made, they should be excluded pursuant to s 90 of the Act, since it would be unfair to the applicant to permit their use. Among other things, counsel relied on the applicant’s ‘emotional situation of her relationship with the co-accused and her son, and her attendance at the police station; the issue about the mental illness and whether or not the informant was aware of that; the issue of fatigue; [and] the issue of drug use and alcohol consumption’. With specific reference to the manner in which the police informed the applicant that she could contact a lawyer, counsel submitted:
So this is where it becomes unjust because there are rights on one level but it’s also just her capacity to function as a person. There’s a degree of substantive unfairness and this is the sort of unfairness that the court should always be live to when dealing with people from an indigenous background. We need to be alive to these questions of fairness because, obviously, they’ve been overridden in the past considerably and that’s why courts take a particular sensitivity to them. And that’s why also the section embraces broad understandings so that we can actually tailor the decisions to the specific person that we’re dealing with.
[4]Counsel cited Bugmy v The Queen (2013) 249 CLR 571.

The prosecutor submitted that the circumstances in which the admissions were made during the record of interview were not such as to make it likely that the truth of the admissions was adversely affected. In the alternative, he submitted that it was not unfair to admit the record of interview. The prosecutor submitted that, since the applicant did not give evidence, there was no direct evidence establishing that at the time of the interview she was under the influence of alcohol or drugs or both during the record of interview, or what her mental state or levels of fatigue were. Further, there was no direct evidence establishing that the applicant did not understand the caution or her rights, or that she was unable freely and voluntarily to participate or engage in the interview. The prosecutor submitted that, from the viewpoint of any person watching the video‑recorded interview, there clearly is no lack of comprehension on the applicant’s part as to what she was being asked. It appears from her answers that the applicant was willing to cooperate with the investigators.

The ruling

The judge commenced her ruling by outlining the factual background to the charges, before briefly summarising the principal submissions made by counsel. She then turned to the legislative framework — setting out the terms of ss 85(2) and 90 of the Act and referring to relevant authorities[5] — before turning to the evidence on the voir dire. The trial judge noted that the applicant did not give evidence, so that the account given as to her understanding of the circumstances surrounding her arrest and her experience of the record of interview comes entirely from what she has relayed to Dr Grech and Dr Ashkar. Thereafter, the judge summarised the evidence (including that given under cross-examination) of Dr Grech, Dr Ashkar and Detective Holt at some length. The judge then dealt with the issue of the admissibility of Dr Grech’s evidence — the prosecution had challenged his capacity to give evidence as to the applicant’s cognitive functioning — and determined that Dr Grech’s evidence was admissible under s 79 of the Act. Having determined Dr Grech’s evidence to be admissible, the judge returned in some detail to the submissions made by defence counsel and the prosecutor (which it is unnecessary to recite).
[5]R v Esposito (1998) 45 NSWLR 442 (‘Esposito’); FMJ v The Queen [2011] VSCA 308 (‘FMJ’); DPP v Myles (a pseudonym) [2021] VSCA 324 (‘Myles’); Em v The Queen (2007) 232 CLR 67 (‘Em’).
Next, the judge turned to consider the impact of s 85 of the Act. Her key findings included the following:[6]
[99]… Dr Grech’s opinion that [the applicant] had engaged in acute alcohol use and was subsequently withdrawing from that, and her use of illicit substances, is based on what she told him, or the record of interview. His opinion regarding her sleep deprivation and the depletion of her dopamine levels and its capacity to distort memory, is also founded on this premise of her self-report.
[100]In contrast to this evidence, Dr Ashkar reported that [the applicant] denied daily use of alcohol leading up to the police interview. It was his understanding that she wasn’t using alcohol heavily at this time. He considered that information to be inconsistent with that documented in Dr Grech’s second report.
[101]In the absence of any evidence from [the applicant], it is difficult to reconcile the two accounts. However, Dr Ashkar formed the opinion that it was probably more likely than not that [the applicant] would have been using methamphetamine at or near the time of the police interview.
[102]Whilst I accept that illicit substances and alcohol use may have impacted upon [the applicant’s] ability to recall events and potentially her cognitive function, I must also consider the record of interview subjectively. From my own observations of the record of interview, [the applicant] does not appear to be substance affected. Nor is there any evidence that she was affected by alcohol withdrawal. She may indeed have consumed substances in a large quantity some 48 hours earlier but if she was affected, it did does not appear to have impeded her ability to firstly, drive to the police station.
[103]Moreover, from my observations it does not appear to have impeded her ability to understand and answer the questions posed to her. To the contrary, [the applicant] seems to be well capable of answering the questions put to her in the record of interview. At times she sought clarification or corrected police when they appeared to misunderstand her answers (Questions 67 to 69). Furthermore, there is an instance in the record of interview where [the applicant] was capable of asserting her rights, when she indicated at Q 1007 that she did not wish to speak with a male police officer. It seems from this that at the very least, [the applicant] had some understanding that that she had some say in what was taking place around her.
[104]In addition to the matters set out in section 85(3)(a), I have also had regard to sub-section (b). The admissions were in response to questioning and having regard to the nature of the questions and the manner in which they were put, it does not seem to me that they were such as to make it likely that the truth of the admission was adversely affected. [The applicant] was asked open-ended questions and then asked to elaborate on certain matters. It does not seem that words were put into her mouth which she may have misunderstood or misconstrued. There is no suggestion here that there were any threats, promises or other inducements made to [the applicant]. As noted, she then signed a statement which was consistent with what she had told police in that interview.
[105]As stated, the onus is on the prosecution to establish that it is unlikely that the truth of the admissions made by [the applicant] were adversely affected. In my view, taking into account the evidence of both Dr Grech and Dr Ashkar, I am satisfied on the balance of probabilities that having regard to the circumstances in which the admission was made, they were such as to make it unlikely that the truth of the admission was adversely affected.
[6]Emphasis added.
Turning to s 90 of the Act, the judge made a further number of key findings, including the following:
[112]… I have considered carefully the circumstances in which the record of interview took place.
[113]Whilst [the applicant] may not have anticipated at the time she attended the police station that she was going to be arrested and interviewed, I accept the evidence of DSC Holt that she cautioned [the applicant] prior to the interview and placed her under arrest. There was no challenge to the evidence of the informant that [the applicant] was cautioned and given her rights both prior to and after her arrest. DSC Holt did not recall that [the applicant] expressed any confusion about whether she was a suspect witness [scil, suspect or a witness?]. It was not put to DSC Holt in cross examination that [the applicant] did not understand that she was under arrest at the time of interview.
[114]Although [the applicant] indicated during the interview that she may wish to speak to a lawyer, she was not discouraged from doing so by the police. DSC Holt said that had she done so she would have stopped the interview to allow her the opportunity to speak to a legal representative. [The applicant] did not express that she no longer wished to continue answering questions. There is no suggestion in any of the evidence before me that [the applicant] did not wish to answer questions at all. The police attendance summary indicates that during a preliminary check, a police officer noted at 13:46 that [the applicant] had nil mental impairment or incapacity, but at 13:48 the initial supervisor check noted that she had a mental impairment or incapacity – ‘Takes medication for mental illness. Has not had medication today’. There is no suggestion on the evidence that [the applicant] expressed an inability to continue without her medication.
[115]Having watched the record of interview and taking into account all the circumstances in which the admissions were made by [the applicant], including the initial reason for her attendance at the police station, the fact that she was cautioned and placed under arrest, that she declined to exercise her rights in that record of interview and bearing in mind the evidence of Dr Grech, Dr Ashkar and DSC Holt, I do not consider that it would be unfair to the accused to use the evidence at trial.
[116]Accordingly, I do not propose to exclude the evidence of the record of interview pursuant to s 90.

The submissions of the parties in this Court

In written submissions in support of the ground — which contends that the trial judge erred in exercising her discretion under ss 85 and 90 of the Act by failing to take into account that the applicant is an Aboriginal woman who has been a victim of domestic abuse — counsel for the applicant submitted that there is no reference in the judge’s ruling to the fact that the applicant is an Aboriginal woman. Nor is there any consideration of the applicant’s experience of domestic violence beyond noting that she had a history of abuse (albeit we note that in oral submissions counsel said that he did ‘not put much weight’ on this aspect). Counsel submitted that these are significant omissions which indicate that the judged erred in failing to give them appropriate weight. The applicant had been referred to Dr Grech as an indigenous woman by The Gathering Place — a medical and psychiatric establishment that assists people from an indigenous background — in relation to her acute anxiety, panic attacks, history of sexual abuse, and a history of domestic violence and sexual, physical and emotional abuse in the context of her relationships. It was of significance that the applicant was an indigenous woman with a history of domestic violence. This was relevant when considering the applicant’s ability to engage with the criminal justice system.
In his oral submissions to this Court, counsel for the applicant contended that the trial judge erred in her approach to the admissibility of the applicant’s admissions by failing to apply the ‘rules’ (or ‘guidelines’) in Anunga,[7] later endorsed in Narula,[8] and he relied on a number of the Anunga rules. These submissions were advanced in this Court despite counsel’s failure to cite either case, or to rely upon the principles to be derived from them, in his submissions to the trial judge. In particular, in this Court counsel placed emphasis on rule 3 — which, ‘when it is appropriate to do so’, requires interrogating police to take great care when administering a caution to an Aboriginal suspect — and rule 4 — which requires interrogating police to exercise great care when formulating questions for an Aboriginal suspect[9] — in order to support a submission that both the caution administered to the applicant by police,[10] and their explanation to her of her right to a lawyer,[11] were deficient. Counsel submitted that the caution should have been broken into several distinct questions so as to ensure that the applicant understood her rights; and police should have stopped their interrogation when the applicant expressed doubt as to whether she should consult a lawyer. Significantly, however, counsel for the applicant did not invoke s 139 of the Act.
[7]R v Anunga (1976) 11 ALR 412 (Forster J) (‘Anunga’).
[8]R v Narula (1986) 22 A Crim R 409 (‘Narula’), reported on other issues at [1987] VR 661.
[9]Anunga, 414–5.
[10]If an investigating official wishes to question a person suspected of having committed an offence who is in custody for that offence, s 464A(3) of the Crimes Act 1958 requires the investigating official to ‘inform the person in custody that he or she does not have to say or do anything but that anything the person does say or do may be given in evidence’.
[11]By virtue of s 464C(1)(b) of the Crimes Act 1958, before any questioning commences, an investigating official must inform the person in custody that he or she ‘may communicate with or attempt to communicate with a legal practitioner (whether the term legal practitioner or lawyer is used)’, and, unless one or other of two (presently irrelevant) criteria are met, the investigating official ‘must defer the questioning … for a time that is reasonable in the circumstances to enable the person to make, or attempt to make, the communication’.
Counsel for the respondent submitted in response that a fair reading of the judge’s ruling indicates that the judge took into account the fact that the applicant was an Aboriginal woman with a history of abuse, so much having been addressed specifically in Dr Grech’s evidence and in oral submissions by the applicant’s counsel. It is clear that the judge addressed all matters of substance in a fair and comprehensive manner. Plainly, the trial judge’s reasons identified the relevant principles of law, referred to relevant evidence, stated findings upon material questions of fact, and provided an explanation for those findings and the ultimate conclusions reached. The judge was correct not to exclude the applicant’s admissions under ss 85 and 90.
In oral submissions, counsel for the respondent submitted that the judge’s ruling shows that she placed reliance on the opinions of Dr Ashkar, generally preferring his opinions to those of Dr Grech. In his report, under the heading ‘Developmental and Psychosocial History’, Dr Ashkar had noted: ‘[The applicant] was born in Launceston, Tasmania and English is her primary language. Her mother is an Indigenous Australian and her father comes from English stock’. These matters cannot have escaped the judge’s notice. Importantly, however, there was no evidence before her from which the trial judge could have concluded that the applicant’s Aboriginal heritage ‘may have or did’ have an adverse impact on her capacity to understand police questions or their explanation to her of her rights. There was, counsel submitted, a ‘lack of connection’ demonstrated between the applicant’s Aboriginal heritage and the way in which that may have affected the fairness of the circumstances in which the impugned admissions were made.
In written submissions, the respondent’s counsel contended that the question is not whether the circumstances did in fact adversely affect the truth of the admissions, but whether they were likely to do so. Regardless of the precise nature of the test, however, there is still no legitimate question about whether it is likely that the circumstances have adversely affected the truth of the admissions. Counsel submitted that there is nothing whatsoever associated with the circumstances in which the admissions were made that causes any concern about whether it is likely that the truth of what the applicant admitted might be affected adversely. The applicant’s ability to understand and answer questions is unimpeded. She appears to be alert and demonstrates little or no anxiety. At times, she seeks clarification, corrects interviewing police, and is capable of asserting her rights. Further, there is nothing in the nature of the questioning or the format of the interview which affects her answers. Significantly, the applicant then signed a statement consistent with the interview and read the statement whilst being recorded.
Counsel for the respondent also submitted in writing that the applicant did not give evidence on the voir dire, so that there is no direct evidence establishing her mental state or her levels of fatigue during the course of the day. Nevertheless, the applicant told both Dr Ashkar and Dr Grech that she understood her rights and caution. Furthermore, police did not raise any concerns about the applicant during their interactions with her.
Finally, the respondent’s counsel submitted that there is no House[12] error identified, particularly in circumstances where, regardless of the test applied, it was open to the trial judge to refuse to exclude the record of interview.
[12]House v The King (1936) 55 CLR 499.

Sections 85 and 90 of the Act

Sections 85 and 90 are found in pt 3.4 of the Act, headed ‘Admissions’.
By virtue of s 85(1)(a), the provisions of the section apply in criminal proceedings[13] to evidence of an admission[14] made by an accused to, or in the presence of, an investigating official[15] who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence. Section 85 also provides (so far as relevant):
[13]The Dictionary to the Act defines ‘admission’:
admission means a previous representation that is—
(a) made by a person who is or becomes a party to a proceeding (including an accused in a criminal proceeding); and
(b) adverse to the persons interest in the outcome of the proceeding; …
[14]The Dictionary provides that criminal proceedings means a prosecution for an offence.
[15]The definition of investigating official in the Dictionary includes a police officer, which includes a member of the police force of a State.
85 Criminal proceedings—reliability of admissions by accused
…
(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.
(3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account—
(a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject; and
(b) if the admission was made in response to questioning—
(i) the nature of the questions and the manner in which they were put; and
...
The focus of s 85(2) is on the circumstances in which an admission was made, and the capacity of those circumstances to affect adversely its truth. Unless the relevant circumstances make it unlikely that the truth of the admission was adversely affected, the evidence of the admission is simply not admissible; that is, no exercise of discretion is involved. Clearly, s 85(2) is not concerned with whether an admission was in fact made. Instead, s 85(2) is concerned with circumstances that would have adversely affected the truth of the putative admission. It requires the prosecution to satisfy the trial judge on the balance of probabilities that the admission was made in circumstances that would be unlikely to affect its truth adversely.
When considering the matters to be taken into account under s 85(2), sub-s (3) requires the trial judge, first, to take into account any relevant condition or characteristic of the person who made the admission. Included in the (apparently non-exhaustive) conditions or characteristics that the trial judge must take into account are the age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject. Next, if the admission was made in response to questioning, the judge must take into account the nature of the questions and the manner in which they were put.
Section 90 also applies to evidence of an admission. It provides:
90 Discretion to exclude admissions
In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if—
(a) the evidence is adduced by the prosecution; and
(b) having regard to the circumstances in which the admission was made, it would be unfair to an accused to use the evidence.
By virtue of s 90, a court may refuse to admit evidence of an admission sought to be adduced by the prosecution if, having regard to the circumstances in which it was made, it would be unfair to the accused to use the evidence. As with s 85(2), the focus of s 90 is on the circumstances in which an admission is made. If those circumstances mean it would (not could) be unfair to the accused to use the evidence of the admission, the court has a discretion to refuse to admit the evidence.

This Court considered the operation of s 90 in Myles, making the following observations:[16]
[16]Myles [2021] VSCA 324, [25]–[29] (Priest, T Forrest and Walker JJA).
[25]While some of the provisions of pt 3.4 apply to both civil and criminal proceedings, others — including ss 85, 86 and 90 — apply only in criminal proceedings.
[26]In Em, Gummow and Hayne JJ distinguished s 90 from other provisions:[17]
It should be observed that s 90 is cast in a form which differs from ss 84, 85 and 86. These set out rules whereby in stipulated circumstances evidence of certain admissions is not to be admitted. Section 90 empowers the court in a criminal proceeding to refuse to admit evidence adduced by the prosecution of an admission (not expressly limited to an admission by the defendant) where to use the evidence would be unfair to a defendant.
[27]Notably, for the purposes of s 90, the Act leaves unfair undefined. Plainly, however, unfairness must necessarily be a highly fact-specific concept. So much was made clear in Em by Gleeson CJ and Heydon J, who said:[18]
The language in s 90 is so general that it would not be possible in any particular case to mark out the full extent of its meaning. … In any particular case, the application of s 90 is likely to be highly fact-specific. Certainly it is on the facts of this particular case that the result must turn.
[28]As the terms of s 90 make clear, the focus must be upon the circumstances in which the admissions were made, and the way in which those circumstances render use of the evidence at trial to be unfair. Thus, Gummow and Hayne JJ observed:[19]
As pointed out at the commencement of these reasons, the central issue is whether the evidence of admissions should not have been admitted because, having regard to the circumstances in which they were made, it would be unfair to the defendant to use the evidence. That question requires consideration of whether there was identified some aspect of the circumstances in which the admissions were made that revealed why the use of the evidence, at the trial of the person who made the admissions, would be unfair. That is, the focus of s 90 falls upon the fairness of using the evidence at trial, not directly upon characterising the circumstances in which the admissions were made, including the means by which the admissions were elicited, as fair or unfair.
[29]As was also made clear by Gummow and Hayne JJ, s 90 is a safety net provision, only to be invoked after other, more specific, provisions (such as ss 84, 85, 86, 137 and 138) have been considered:[20]
When it is unfair to use evidence of an out-of-court admission at the trial of an accused person cannot be described exhaustively. Unfairness, whether for the purposes of the common law discretion or for the purposes of s 90, may arise in different ways. But many cases in which the use of evidence of an out-of-court admission would be judged, in the exercise of the common law discretion, to be unfair to an accused are dealt with expressly by particular provisions of the Act other than s 90. Thus although the discretion given by s 90 is generally similar to the common law discretion considered in Lee,^[[21]] it is a discretion that will fall to be considered only after applying the other, more specific, provisions of the Act referred to at the start of these reasons. The questions with which those other sections deal (most notably questions of the reliability of what was said to police or other persons in authority, and what consequences follow from illegal or improper conduct by investigating authorities) are not to be dealt with under s 90. The consequence is that the discretion given by s 90 will be engaged only as a final or safety net provision.
[30]The onus of demonstrating that it would be unfair to use the evidence of an admission lies with the accused.[22]
[17]Em v The Queen (2007) 232 CLR 67, 101 [94] (Em).
[18]Ibid 89 [56].
[19]Ibid 103 [107].
[20]Ibid 104 [109].
[21][R v Lee (1950) 82 CLR 133.]
[22]Em, 91 [63] (Gleeson CJ and Heydon J).
As the authorities make clear, the application of s 90 is ‘highly fact-specific’. The focus must be upon the circumstances in which the impugned admission was made, and the way in which those circumstances would render the use of the evidence of the admission unfair to the accused at trial. That is, the focus of s 90 is upon the fairness of using the evidence at trial, not directly upon characterising the circumstances in which the admission was made — including the manner in which it was elicited — as fair or unfair. Consideration must be given to whether there is some aspect of the circumstances in which the admission was made that reveals why it would be unfair to use the evidence of the admission in the trial of the person who made it.
With those principles in mind, it is convenient to turn to consideration of the grounds upon which the applicant relies.

Discussion

On its face, the ground of appeal is of limited scope. It contends that the judge erred in the exercise of discretion under both ss 85 and 90, by ‘failing to take into account a relevant consideration’, viz. that the applicant ‘is an Aboriginal woman who has been a victim of domestic abuse’. Thus, as formulated, the ground asserts an error by the trial judge in the exercise of discretion under both ss 85 and 90.
Notwithstanding the terms in which the ground is expressed, however, it is plain that there is no exercise of discretion involved in the application of s 85,[23] any exercise of discretion in this case being confined to the application of s 90.[24] That is of no practical consequence, however, since the premise upon which the ground proceeds — that the judge failed to take into account that the applicant is an Aboriginal woman who has been a victim of domestic abuse — is not borne out by an examination of the ruling.
[23]See [38] above.
[24]See [41] above.
Furthermore, despite the ground’s limited scope, in the course of oral argument the Court tolerated a significant departure by the applicant’s counsel from his written contentions, and, as we have mentioned, permitted him to advance arguments that he had not put before the trial judge. Hence, counsel was permitted to present arguments about the adequacy of the manner in which the caution was administered and the propriety of continuing with the interview after the applicant had indicated she may wish to speak to a lawyer, those arguments being founded substantially upon principles in Anunga (and Narula).
The nub of the written submissions made by the applicant’s counsel in support of the ground was expressed as follows:[25]
Oral submission was made [to the trial judge] that for a determination under sections 90 and 85 of the Act all the evidence must be considered globally rather than each point in isolation. Of significance was that the applicant was an indigenous woman with a history of domestic violence. It has been noted with respect to Aboriginal people before the courts that the effects of profound social deprivation do not diminish over time.[26] It was submitted that this was relevant in considering the Applicant’s ability to engage with the criminal justice system.
[25]Footnotes to transcript references omitted and emphasis added.
[26]Bugmy v The Queen (2013) 249 CLR 571.
In oral submissions, however, counsel contended that, when considering the admissibility of the applicant’s admissions, the trial judge was required to consider the applicant’s status as an indigenous person (with a history of abuse) ‘globally’ in connection with other identified factors. Counsel submitted that the applicant’s status as an Aboriginal person dictated that the police should have divided the administration of the caution into distinct questions, thereby ensuring that the applicant fully understood its implications. Further, counsel submitted, notwithstanding the applicant’s apparent willingness to proceed with the interview without speaking to a lawyer, police should nonetheless have done more to confirm that she did not want to exercise her right to communicate with a lawyer. As we have said, counsel placed substantial reliance on Anunga and Narula to support these submissions.
Returning to the judge’s ruling, having set out the terms of ss 85(2) and (3), and having noted that it is for an accused person to point to circumstances which may have adversely affected the truth of an admission, the judge said:[27]
[11]The onus then falls on the prosecution to establish, on the balance of probabilities that it was unlikely that the truth of the admission was adversely affected.[28] As Wood CJ at CL said in R v Esposito:
‘Truth’ is a qualitative or abstract expression, reflective of whether something is factually correct as opposed to being factually false.[29]
[12]Doubt as to whether the truthfulness was adversely affected, might arise where the age, mental or physical condition, intellectual capacity or state of sobriety of the defendant, ‘were such as to impair his or her orientation, comprehension or recollection and hence the reliability or factual accuracy of anything said by the person’.[30]
[13]Here, it is submitted on behalf of [the applicant] that taking into account the accused’s personality and education, together with her mental and intellectual functioning in circumstances of having ingested a combination of prescription medication, illicit substances, and alcohol, make it likely that the truth of any admissions made in the record of interview were adversely affected.
[27]Footnotes as in original.
[28]Esposito; FMJ v The Queen [2011] VSCA 308 (‘FMJ’).
[29]Ibid 459 [C].
[30]Ibid 459 [C].
The judge then extensively summarised the evidence of Dr Grech, including that the applicant was initially referred by The Gathering Place, described by Dr Grech in his evidence as ‘a medical and a psychiatric establishment which assisted people from an Indigenous background’. Further, the judge made the following observation:[31]
Dr Grech also referred to the fact that [the applicant] expressed an interest in exercising her legal rights with respect to speaking to someone from the Victorian Aboriginal Legal Service, and later alluding to whether she needed to have a lawyer but was not given more opportunity to exercise those rights.
[31]And see [19] above.
Having referred to that part of Dr Grech’s evidence concerned with the applicant’s interest in speaking to someone from the Aboriginal Legal Service, the judge set out the following preliminary questions and answers from the record of interview:
Q20 Do you wish to speak to the Victorian Aboriginal Legal Service before we proceed?
A It’d probably be – it might be wise maybe.
Q21 Yeah we can facilitate it. They’re a legal service specifically for people who identify as Aboriginal, Torres Strait Islander. They may be able to give you specific advice.
A It’s still gonna go down the same way anyway.
Q22 Its totally up to you.
A Yeah, no, O.K, I---
Q23 Carry on. Well, if you change at all ---
A Yea
Q24 --- let us know and we can stop at any point and we can contact them. O.K?
A Yeah
Q25 You understand?
A Mm’hm, yes, I do.
The judge then noted:
According to Dr Grech, continuing with the interview, despite expressing that it might be wise to speak with someone [from the Victorian Aboriginal Legal Service], is said to be consistent with how [the applicant] deals with certain issues when under ‘duress’ or stress. Dr Grech states it is a quite a normal thing for her to not necessarily assert her rights. She has been conditioned over the years that it is simply better to move on.
Furthermore, the judge stated that she had ‘taken into account all of the evidence given in this pre-trial hearing including all expert reports and evidence given by each of those authors, as well as the evidence of DSC Holt’, and said that she had ‘watched the record of interview more than once’. She also observed that she had ‘been assisted by very comprehensive and helpful written submissions prepared by each of the parties both prior to the voir dire and subsequently, which were supplemented by oral submissions’.
The very comprehensive written and oral submissions dealt specifically with the relevance of the applicant being an indigenous woman with a history of domestic violence. Indeed, one of the submissions made orally by the applicant’s counsel when comparing the opinions in the reports of Dr Ashkar and Dr Grech was as follows:
Now, Dr Ashkar notes fatigue and drugs. Dr Grech, all of the above. And then … I would submit this is important, Your Honour – ‘An indigenous woman with a history of experiences of domestic violence’. In the case of Bugmy, where we take into the idea of the continuation of social deprivation and how it impacts on people’s ability to comply with things or engage with the criminal justice system. I’m not referring to Bugmy for that point.
But the way that Dr Grech unpacks that, he talks about … the characterisation of how her experience of domestic violence and her experiences as an indigenous woman, … [s]o, that becomes another operative issue.
Given the foregoing, it is untenable to suggest that the judge had lost sight of the fact that the applicant was an Aboriginal woman with a history of abuse. But even if she had, there was little or nothing before the judge which would have permitted her to find that the prosecution had failed to establish that those two circumstances — solely, together or in combination with the applicant’s other conditions or characteristics — would have made it unlikely that the truth of any admission in the record of interview was adversely affected. Indeed, there was scant evidence to substantiate the assertion that the applicant’s status as an indigenous woman, and her history of abuse, could have adversely affected the truth of any admission she made. Moreover, there was nothing in the circumstances relied upon by the applicant which could have animated any exercise of discretion under s 90.
In our view, it was open to the judge to find that the circumstances in which the admissions in the record of interview were made were such as to make it unlikely that the truth of the admissions was adversely affected. Indeed, although he was asked repeatedly by the Court to point to any evidence in the case which supported the proposition that the applicant’s Aboriginality and history of abuse impinged upon the fairness of the circumstances in which the admissions were made, counsel was unable to do so. Putting it at its highest, counsel’s principal contention appeared to be that the truth of the admissions made in the record of interview may have been adversely affected by a combination of factors, including the fact that the applicant was an indigenous person with a history of abuse.
Among the authorities he relied upon, the applicant’s counsel drew the Court’s attention to certain observations made by Lasry J in McNiven, when ruling on the admissibility of a record of interview under s 85(2):[32]
[62][Section 85(2)] effectively requires me to consider whether the reliability of the admissions sought to be relied upon may have been impaired as a result of the way in which they were obtained. As Barr J said in R v Rooke:[33]
I think that the expression ‘the circumstances in which the admission was made’ as used as in subs(2) is intended to mean the circumstances of and surrounding the making of the admissions, not the general circumstances of the events said to form part of the offence to which the admissions are relevant. That is because, first, it is the plain meaning of the words. Secondly, it follows because subs(1) intends the section to have effect only where there is official questioning (or an act of the kind relevant under para(1)(b)).
So far as the present appeal is concerned, the section may be said to be intended to require courts to inquire, where appropriate, into the process by which official questioning produces evidence tendered at trial. If the circumstances of the official questioning are such as to produce untruthful or unreliable evidence of admissions – adversely to affect their truth – the evidence is inadmissible. But the section is only concerned with the truth or reliability of evidence of admissions in this limited way. It has generally no part to play in the admissibility of evidence of admissions which may be untrue or unreliable for other reasons. Untruthfulness or unreliability in those circumstances is not a question for the trial judge at all, but for the jury. The authors of ALRC 26 said, at [765], speaking of the draft forerunner to s 85, ‘the trial judge should determine as a preliminary issue whether the reliability of the admission may have been impaired by the way it was obtained’.
[63]In my opinion, in this case some of the circumstances surrounding the making of the admissions include, by reference, some of the general circumstances of the events said to form part of the offence to which the admissions are relevant. Whilst understanding the separation of issues to which his Honour was referring, where there is a relevant overlap such as, for example in this case, the heavy consumption of alcohol leading to up to the commission of the offence, the effect of which was still evident at the time of the record of interview, such matters must be considered for the purpose of dealing with an issue raised under s 85(2) of the Act.
[64]Shortly after, speaking of the role of the trial judge in dealing with such an issue, Barr J said:[34]
The question for his Honour, under s 85, was whether in the circumstances pointed to by the appellant, the making of the answers was reliable, that is, whether the circumstances were such as to make it unlikely that the truth of what the appellant had said was adversely affected.
[65]It is also logical that the ‘circumstances’ referred to in s 85(2) are ‘not confined to those known by the interrogator’ or to the manner in which the questions are put.[35]
[32]R v McNiven [2011] VSC 397, [62]–[65] (‘McNiven’).
[33][1997] NSW CCA (2 September 1997) at 15-16 (my emphasis).
[34]Ibid, at 16.
[35]Per Higgins J in R v Taylor [1999] ACTSC 47 at [29].
We pause to note that, in written submissions made under cover of the now abandoned ground of appeal, counsel for the applicant raised the issue of whether the test under s 85(2) is subjective or objective. In McNiven, Lasry J was ‘unable to see how it can be other than subjective’.[36] Although circumstances have now made it unnecessary to resolve that question in determining the present application, we note that the issue was considered by Blokland J in BL.[37] She considered that there is no reason to read s 85(2) as exclusively applying to either subjective or objective matters. With respect, we agree. Blokland J observed:[38]
[32] The relevant conditions or characteristics listed in s 85(3) appear more amenable to subjective analysis, particularly the physical and mental characteristics of the interviewee.[39] The matters a court may take into account are not however limited. In my view there is no reason to read s 85(2) as exclusively applying to either subjective or objective matters. In this instance the voir dire has proceeded on the basis that the relevant characteristics of the accused, including his vulnerabilities, should be assessed according to s 85(2) Evidence (National Uniform Legislation) Act.
[36]Ibid [70].
[37]R v BL [2015] NTSC 85 (‘BL’).
[38]Ibid [29] (footnotes as in original).
[39]See, eg in R v Braun [1997] NSW SC 507, concerning the effect of a personality disorder.

As we have said, although he had not done so before the trial judge, in oral submissions in this Court counsel for the applicant relied on the Anunga rules to support the twin propositions that the manner in which the caution was administered was deficient, and that the police should have taken more care to ensure that the applicant was given an adequate opportunity to exercise her right to communicate with a lawyer. Counsel was, however, apparently unaware of certain observations that had been made by Blokland J in BL as to the status of the Anunga rules following the promulgation of the Uniform Evidence Acts. In dealing with the admissibility of the record of interview of a 17‑year‑old Aboriginal youth charged with a sex offence, whose first language was not English, Blokland J observed:[40]
[33]Since the introduction of the Evidence (National Uniform Legislation) Act, R v Anunga[41] and other common law cases have been displaced. As noted however by Professor McCrimmon, although no longer binding precedent, as guidelines for the conduct of police in the interrogation of Indigenous persons, they will continue to apply.[42] I proceed on the basis that both the Police General Orders (eg. General Order Q2 ‘Questioning People Who Have Difficulties With the English Language – the Anunga Guidelines’) and the Anunga Guidelines remain useful in assessing certain of the characteristics that may be required to be addressed in the context of s 85 Evidence (National Uniform Legislation) Act. The Anunga Guidelines and Police General Orders with respect to questioning Aboriginal suspects for whom English was not a first language in certain situations are not and never have been absolute rules. Their relevance to questions under the Evidence (National Uniform Legislation) Act are readily accommodated or associated with s 138(2)(a) (improperly or illegally obtained evidence) or s 139 (cautioning of persons) or the general discretion to exclude under s 90. They also have some relevance to s 85. Both the Guidelines and General Orders remain useful in a discussion of any relevant ‘condition’ or ‘characteristic’ bearing on reliability, as they signal certain issues that require particular attention. As with many of the common law cases, the Anunga Guidelines and Police General Orders were intended to ensure vulnerable suspects were not disadvantaged and unreliable admissions were not admitted. They especially, but not exclusively, address vulnerabilities resulting from deficiencies in language or the inability to properly explain or to guard against gratuitous concurrence in the face of leading questions. In large part, the Anunga Guidelines and Police General Orders expressed in similar terms assist to prevent the unreliability that readily flows from miscommunication. Both the Anunga Guidelines and the Police General Orders represent a pragmatic approach to assist with ensuring fairness and reliability concerning suspects who are vulnerable because of language difficulties.
[34]Although the question of admissibility on the basis of unreliability is to be determined according to s 85 of the Evidence (National Uniform Legislation) Act, issues concerning language, comprehension, miscommunication and other factors that were directly relevant to the Anunga Guidelines and other common law cases as well as Police General Orders such as Q2 are not irrelevant to the question of unreliability in s 85.
[40]BL, [33]–[34] (footnotes as in original).
[41](1976) 11 ALR 412.
[42]Generally on this subject, see Professor Les McCrimmon, ‘The Uniform Evidence Act and the Anunga Guidelines: Accommodation or annihilation’ (2011) 2 NTLJ 91.
It is important to understand that the Anunga guidelines were formulated to deal with police interviews of Aboriginal people who were vulnerable by reason of their poor comprehension of English, and by virtue of cultural imperatives. Hence, Forster J observed:[43]
I preface this statement of guidelines by pointing out that Aboriginal people often do not understand English very well and that, even if they do understand the words, they may not understand the concepts which English phrases and sentences express. Even with the use of interpreters this problem is by no means solved. Police and legal English sometimes is not translatable into the Aboriginal languages at all and there are no separate Aboriginal words for some simple words like ‘in’, ‘at’, ‘on’, ‘by’, ‘with’ or ‘over’, these being suffixes added to the word they qualify. Some words may translate literally into Aboriginal language but mean something different. ‘Did you go into his house?’ means to an English-speaking person, ‘Did you go into the building?’, but to an Aboriginal it may also mean, ‘Did you go within the fence surrounding the house?’. English concepts of time, number and distance are imperfectly understood, if at all, by Aboriginal people, many of the more primitive of whom cannot tell the time by a clock. One frequently hears the answer, ‘Long time’, which depending on the context may be minutes, hours, days, weeks or years. In case I may be misunderstood, I should also emphasize that I am not expressing the view that Aboriginal people are any less intelligent than white people but simply that their concepts of certain things and the terms in which they are expressed may be wholly different to those of white people.
Another matter which needs to be understood is that most Aboriginal people are basically courteous and polite and will answer questions by white people in the way in which they think the questioner wants. Even if they are not courteous and polite there is the same reaction when they are dealing with an authority figure such as a policeman. Indeed, their action is probably a combination of natural politeness and their attitude to someone in authority. Some Aboriginal people find the standard caution quite bewildering, even if they understand that they do not have to answer questions, because, if they do not have to answer questions, then why are the questions being asked?
[43]Anunga, 413–4.
Forster J also observed:[44]
It may be thought by some that these guidelines are unduly paternal and therefore offensive to Aboriginal people. It may be thought by others that they are unduly favourable to Aboriginal people. The truth of the matter is that they are designed simply to remove or obviate some of the disadvantages from which Aboriginal people suffer in their dealings with police. 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.
[44]Ibid 415.
In our opinion, there was nothing in the evidence in this case which would have justified a finding that the applicant was at a disadvantage or was vulnerable by reason of a lack of comprehension of English or for cultural reasons. English was her primary language, and there was nothing in the evidence which might have founded an inference that the applicant might have answered questions ‘in the way in which they think the questioner wants’. Although the applicant only completed Year 8, and she spoke with an unsophisticated vocabulary, as Dr Ashkar noted, her speech was reasonably well‑articulated throughout the interview. To our observation, the applicant’s answers to police questions were responsive and relevant, and demonstrated an understanding of what was being asked. Indeed, at times she gave relatively lengthy narrative answers, and, at others, corrected the questioners. In viewing the record of interview, we could not detect any lack of comprehension by the applicant.
At the risk of repetition, in oral argument counsel for the applicant advanced two principal contentions; first, to ensure the applicant’s comprehension of it, police should have divided the caution into distinct questions; and, secondly, notwithstanding her apparent willingness to proceed with the interview without speaking to a lawyer, police should nonetheless have done more to confirm that the applicant did not want to exercise her right to communicate with a lawyer. As we earlier observed, however, counsel did not seek to invoke s 139 of the Act, sub-s (3) of which provides:
(3)The caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency, but need not be given in writing unless the person cannot hear adequately.
There have been cases in which records of interview have been excluded from evidence because an interviewed suspect has been found to be incapable of understanding a police officer’s explanation of the suspect’s rights. One such case was Li.[45] In that case, the record of interview a 17 year-old Vietnamese youth charged with murder — who at the time of interview possessed a basic ability to speak and comprehend English but had limited capacity to understand and articulate abstract concepts — was ruled inadmissible. Among other things, the interrogating police officer had attempted to explain to the accused his right to remain silent and his right to seek advice from a lawyer, but it appeared that the accused did not comprehend the nature of these rights as explained to him.
[45]R v Li and Anor [1993] 2 VR 80 (Coldrey J).
Another such case was Nguyen.[46] In that case, a Vietnamese suspect was interviewed with the aid of an interpreter. The trial judge found that police genuinely — but unsuccessfully — endeavoured to explain to the accused his right to silence and to provide him with legal advice. In excluding the record of interview, Coldrey J said:[47]
I am not unappreciative of the difficulties facing interrogating police seeking to interview persons of different cultural and linguistic backgrounds.
However it is essential that, where suspects do suffer the disability of linguistic and cultural unfamiliarity with the Australian legal system, interviewing police are vigilant to ensure that such persons fully understand their legal rights.
This may well require a flexible formulation of such rights by interviewing police and a sufficient inquiry by them of the suspect to demonstrate an understanding of those rights.
[46]R v Nguyen (1995) 78 A Crim R 582 (Coldrey J).
[47]Ibid 585 (emphasis added).
Cases such as Li and Nguyen were decided according to common law principles and with particular regard to those provisions of the Crimes Act 1958 which bear on the interrogation of suspects. Assuming, however, that the kinds of considerations that moved the courts in those cases to exclude the relevant records of interview would be relevant to the application of ss 85 and 90 of the Act, there is nothing in the present case to suggest that the applicant laboured under the kind of language difficulties that the accused in those cases did.
In our view, it is quite clear from an examination of the record of interview that the applicant understood the caution, and that she had a right to communicate with a lawyer, but that she chose nonetheless to continue with the record of interview. More to the point — notwithstanding Dr Grech’s evidence[48] — there was nothing in the prevailing circumstances that should have led the judge to conclude that the applicant did not comprehend the caution or the explanation of her rights, so as to engage the provisions of either ss 85(2) or 90.
[48]See [20] above.
It cannot be gainsaid that the trial judge’s analysis of the evidence was careful and thorough. Based on all of the evidence, she was satisfied on the balance of probabilities that, having regard to the circumstances in which the admissions were made, it was unlikely that the truth of the admissions was adversely affected.[49] The trial judge observed that Dr Grech’s opinions concerning the applicant’s acute alcohol use (and withdrawal from alcohol); her use of illicit substances; her sleep deprivation and the depletion of her dopamine levels and its capacity to distort memory; are based either on the record of interview or the applicant’s self-reporting.[50] Further, the trial judge referred to the inconsistencies between what the applicant told Dr Ashkar and Dr Grech about alcohol use.[51] (we take these observations to relate to the weight that the trial judge attached to the opinions of Dr Grech, so far as they were based on what the applicant orally asserted, as opposed to Dr Grech’s own observation of the applicant.)
[49]See [27] above.
[50]Ibid.
[51]Ibid.
Importantly, the judge made her own assessment of the circumstances in which the admissions in the record of interview were made, so as to determine the likelihood of the truth of the admissions being adversely affected, by observing the applicant’s demeanour and appearance at the time that the admissions were made. She considered that the evidence that Dr Grech gave as to the applicant’s candid nature is not inconsistent with the impressions she formed from watching the record of interview. From her observation of the applicant during the record of interview, the judge concluded:[52]
[52]Ibid.
•the applicant does not appear to be substance affected;
•it does not appear that she was affected by alcohol withdrawal;
•if the applicant had consumed substances in a large quantity 48 hours earlier (so that she was affected), that did not appear to have impeded her ability to understand and answer the questions posed to her (or, for that matter, to drive to the police station);
•that she was not impeded in her capacity to answer questions is demonstrated by the applicant at various times seeking clarification or correcting her interrogators;
•that she was capable of asserting her rights was demonstrated by the applicant’s assertion that she did not want to speak to a male officer;
•at the very least, the applicant had some understanding that she had some say in what was taking place around her;
•the nature of the questions and the manner in which they were put, were not such as to make it likely that the truth of the admission was adversely affected;
•the applicant was asked open-ended questions and then asked to elaborate on certain matters;
•it does not seem that words were put into the applicant’s mouth which she may have misunderstood or misconstrued;
•there is no suggestion that there were any threats, promises or other inducements made to the applicant; and
•the applicant signed a statement which was consistent with what she had told police in the record of interview.
These findings were well-open to the judge. Indeed, having viewed the record of interview for ourselves, it is far from obvious to us that the applicant’s cognition is impaired, whether through alcohol consumption, drug use or fatigue (or a combination of factors). Her demeanour and appearance was, in our view, accurately described in his evidence by Dr Ashkar (which we need not repeat).[53]
[53]See [21] above.
As far as we are able to see, there was nothing in the circumstances in which the admissions in the record of interview were made which could have led the judge to find other than it was unlikely that the truth of the alleged admissions was adversely affected. Counsel for the applicant failed to demonstrate any connection between the applicant’s status as an indigenous person (with a history of abuse) and the admissions she made. Plainly, without more, the mere fact that she was an Aboriginal woman (with a background of abuse) could not have engaged the provisions of ss 85(2) and 90.
The applicant has failed to establish that the judge’s ruling is attended by error.

Conclusion

Leave to appeal against the interlocutory decision should be refused.

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[2023] VSCA 174

3 August 2023