Paul Francis Tudor-Stack v Johnathon Chula - [2004] NTMC 13

[Back to Main List] [Back to NTMC 2004 List] CITATION: Paul Francis Tudorstack v J Chula & H Jinjair& M Cumaivi & D Cumaivi & E Tcherna & A Mamby & F Kurungaiyi & E Kurungaiyi
[2004 ] NTMC 013

PARTIES: Paul Francis Tudor-Stack
(Complainant and Informant)
v

Johnathon Chula
Henry Jinjair
Mark Phillip Cumaiyi
Dominic Cumaiyi
Edmund Tcherna
Anthony Mamby
Francis Kurungaiyi
Eugenio Kurungaiy1
(Defendants)

TITLE OF COURT: Court of Summary Jurisdiction

JURISDICTION: Criminal

FILE NO(s): 20275776; 20212706; 20212704; 20212730; 20212711; 20212705

DELIVERED ON: 1 March 2004

DELIVERED AT: Darwin

HEARING DATE(s): 19,20, 21 March 2003; 27, 28, 29 May 2003; 27,28,29 October at Wadeye, 12,13,16 February 2004

JUDGMENT OF: Jenny Blokland SM

CATCHWORDS:

EVIDENCE - CONFESSION - Voluntariness - Anunga Rules - whether particular style of caution complies with Anunga Rules
R v Maratabanga (1993) 3 NTLR 77; McDermott v the Queen (1948) 76 CLR 501 at 511-12; Collins v The Queen (1980) 31 ALR 255; R v Azar (1991) 56 A Crim R 414; R v Nundhirribala (1994) 120 FLR 125; Dumoo v Garner (1988) 143 FLR 245; Gudabi v the Queen (1983) 52 ALR 133; Rostron v the Queen (1991) 1 NTLR 191; Coulthardt v Steer (1981) 12 NTR 13; R v Swaffield (1998) 192 CLR 159
EVIDENCE - CONFESSION - INDUCEMENT - Person in authority - R v Dixon (1992) NSWLR 215 - appropriateness of prisoner's friend - manner of interpretation R v Butler No1 (1991) 57 A Crim R 451 - questioning in the face of an expressed desire not to answer questions - R v Emily Jako, Theresa Marshall and Maris Robinson [1999] NTSC 46; Jabarila (1984) 11 A Crim R 132; Justice Dean Mildren, "Redressing the Imbalance Against Aboriginals in the Criminal Justice System" (1997), 21 Criminal Law Journal 7; Police General Order (NT) Q2
REPRESENTATION:
Counsel:
Complainant and Informant: Mr Duguid
Defendants: Ms Roussos (for Johnathon Chula), followed by Mr Hill; Mr Woodroffe, Mr O'Brien, followed by Mr Barlow
Solicitors:
Complainant and Informant: ODPP
Defendant: North Australian Aboriginal Legal Aid Service; Northern Territory Legal Aid Commission.
Judgment category classification: A
Judgment ID number: [2004] NTMC 013
Number of paragraphs: 46

IN THE COURT OF SUMMARY JURISDICTION
AT WADEYE IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 20275776; 20212706, 20212704; 20212730; 20212711; 20212705

PAUL FRANCIS TUDOR-STACK
(Complainant and Informant)
v

JOHNATHON CHULA
HENRY JINJAIR
MARK PHILLIP CUMAIYI
DOMINIC CUMAIYI
EDMUND TCHERNA
ANTHONY MAMBY
FRANCIS KURUNGAIYI
EUGENIO KURUNGAIY1
(Defendants)

REASONS FOR DECISION ON THE VOIR DIRES

(Delivered March 1, 2004)

Ms Blokland SM:

1. This decision concerns voir dire hearings on the admissibility of confessional evidence for seven out of eight defendants charged with Dangerous Act ( s 154 Criminal Code) and a number of associated offences including offences under the Firearms Act (NT) arising out of an incident on 22 August 2002 at Wadeye. It is alleged that the defendants, (in varying degrees of participation), fired off live ammunition in a number of areas around Wadeye, endangering the lives…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Paul Francis Tudor-Stack v Johnathon Chula

Details

AGLC: Paul Francis Tudor-Stack v Johnathon Chula [2004] NTMC 13
Case: [2004] NTMC 13
Decision Date: 1 March 2004

CaseChat Overview and Summary

This case involved a voir dire hearing on the admissibility of confessional evidence for seven out of eight defendants charged with dangerous acts and other offences arising from an incident in Wadeye. The defendants, who are members of the Wadeye community and have a limited understanding of English, had given statements to police which are now being challenged on the grounds of voluntariness and compliance with the Anunga Rules. The Anunga Rules are guidelines designed to ensure that confessions from Aboriginal people are obtained voluntarily and fairly. The court had to decide whether the confessions were admissible or should be excluded under the voluntariness principle or the fairness and public policy discretions. The court found that some of the confessions were inadmissible due to breaches of the Anunga Rules and other factors like inducement by a person in authority and lack of understanding of the caution. The court highlighted issues with the style of caution used in Wadeye and the quality of interpretation between police and the suspects. The court suggested that the caution could be improved by adopting methods that recognise a middle path between conveying difficult concepts and avoiding rendering the caution devoid of meaning. The court also expressed concern that the experience of being called as a witness may discourage interpreters from remote areas from volunteering in the future.

Orders