R v BRADY
[2010] SADC 3
•15 January 2010
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BRADY
[2010] SADC 3
Reasons for Ruling of His Honour Judge Barrett
15 January 2010
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - RECORDS OF INTERVIEW - DISCRETION TO EXCLUDE
Interrogation of semi tribal Aborigine in remote Aboriginal settlement without telling him that police could contact ALRM on his behalf. Explanation of rights under s 79A of the Summary Offences Act and Police General Order 3015 was perfunctory at best. Confessions to property offences excluded, despite being voluntary and reliable, in the exercise of both unfairness and public policy discretions.
Summary Offences Act 1953 s 79A; Police General Order 3015, referred to.
R v Dolan (1992) 58 SASR 501; McDermott v The King (1948) 76 CLR 501; Cleland v The Queen (1982) 151 CLR 1; R v Lee (1950) 82 CLR 133; R v Hallam and Karger (1985) 42 SASR 126; R v Swaffield (1998) 192 CLR 159; Foster v The Queen (1993) 67 ALJR 550, considered.
R v BRADY
[2010] SADC 3
The accused applied on a voir dire to have excluded at his trial an interview police had with him at the Police Station in Amata in January 2008. The accused lived at Amata which is an Aboriginal settlement approximately 1,000 kilometres from Port Augusta.
Police were investigating break-ins and thefts from several community properties which occurred at Amata in the 2 or 3 days before they went to the accused’s house. At about 3 pm on Saturday 19 January 2008 four police officers went to the accused’s house to arrest him. In conformity with s 74D of the Summary Offences Act 1953 a video record was made of their visit and of the subsequent interview at the police station.
At the accused’s house the police video camera was pointed at the ground. It may be that that practice is adopted to minimise the intrusiveness of the requirements of the law. In some cases that practice might lead to a failure to record important aspects of the police interaction with the accused. In this case however nothing of any significance was missed. The audio equipment recorded what happened at the house. The accused seems to have come to his front door moments after the police officer knocked on it. Senior Constable Daviess of the APY Lands Police spoke to the accused. This is what he said:
Hello (knock at the door) looking for Bruce. Bruce, come outside for us mate. Grab a T shirt if you want as well. How are you going? OK, you are under arrest for break into the store. OK, and we’re gonna talk to you about some other things as well, all right? So you need to come down to the police station with us, all right? Come around this way and I will give you your arrest rights.
The accused then walked with police to a cage car which was parked nearby. The police camera was thereafter generally pointed in the direction of the accused. He was told to sit in the open doorway at the back of the vehicle. Daviess then asked him for his personal particulars which were written down on a form. Daviess spoke to the accused in English and the accused was responsive, if brief. It appears that the four police officers were gathered around the back of the vehicle. The video shows that what happened at the house and at the back of the vehicle was very low key. The police spoke politely and in moderate tones. The accused spoke very quietly and was completely compliant. The accused is a 20 year old Aboriginal man who appeared to be sober and in good health.
After Daviess took down his particulars he had this conversation with the accused:
QCDP. Okay, you’ve been arrested for serious criminal trespass which is breaking into the store, okay. Do you understand that.
AYeah.
QAnd as an arrested person you have the following rights. You can make a phone call to tell someone where you are. Do you understand.
AOuya (yes).
QOuya (yes). Do you wanna phone someone to tell them you’re with us.
ANuh.
QAnd you can have a lawyer, a friend or a family member here if I ask you any questions. Do you understand.
AI want Lee.
QNo, you can’t have Lee, not this time, because he’s given us a statement about some things about the Amata Store and that, okay, but you can have your mum or someone like that if you want.
SENIOR CONSTABLE BEBBINGTON:
QOr anyone you want.
SENIOR CONSTABLE DAVIESS:
QOr anyone.
AI want Johnathon.
SENIOR CONSTABLE BEBBINGTON:
AUmula?
SENIOR CONSTABLE DAVIESS:
QJohnathon?
AUmula.
QUmula. Johnathon. Yeah. So do you understand you can have someone with you while we speak to you.
AYeah.
SENIOR CONSTABLE BEBBINGTON:
QAnd you want Johnathon Lyons.
AYeah, Johnathon Lyons.
QYeah.
SENIOR CONSTABLE DAVIESS:
QAnd do you need help with English to speak with me.
AJohnathon help.
QJohnathon help.
AHe knows.
QAnd you don’t have to talk to me if you don’t want to. Do you understand.
AOuya (yes).
QAnd if you talk to me, it will be recorded on that video for court. Do you understand.
AI understand.
QAnd after you’ve been to the police station you can ask for bail. Do you understand.
A(Not audible)
QOkay, I’ll just get you to sign, sign your name on that line there for us just to say I’ve given you those rights, okay. Okay, and just before we take you down to the police station I need to search you, okay, so if you can stand up for me and if you put your hands on the, onto the cage like that and stand like that for me. Have you got anything in your pockets.
The police then searched the accused and asked him to take off his pants because they had a cord around them. The accused got into the caged car in his underpants. He was not handcuffed.
The video was kept going. It showed that the police vehicle drove for a minute or two to a small single storey building which is the local police station. The accused was taken into the police station and sat down. Mr Johnathon Lyons, who is his uncle ,sat alongside him. The following conversation then took place:
SENIOR CONSTABLE BEBBINGTON:
QOkay Bruce, just letting you know, the camera is still going, all right, so the recording equipment has already been activated to record this interview. The time by my watch is 3.02 p.m. on Saturday the 19th of January, 2008. My name is Senior Constable Daviess of Murputja Police and this interview is being conducted at the Amata Police Station. I now ask all other persons to state their names, starting with you, Bruce, can you say your full name for the camera.
AMy name is Bruce Lee Brady.
QYeah. And do you know your date of birth.
ANuh.
QI asked you before. Do you know how old you are.
A20.
Q20 years old. Yeah. And whereabouts do you live.
AAmata Community.
QAmata Community. And your name –
JOHNATHON LYONS:
AEr Johnathon.
QAnd you last name, Johnathon.
AJohnathon Lyons.
QAnd your date of as well.
A19th of the 11, 67.
Q19/11/67.
AYeah. From in Amata.
QAnd you live in Amata, don’t you.
AYeah.
QAnd you’re gonna assist, you’re here to assist Bruce if he doesn’t understand something we’re saying.
AYeah.
QAnd other people present are –
SENIOR CONSTABLE BEBBINGTON:
QSenior Constable Bebbington of APY Lands, Police.
SENIOR CONSTABLE DAVIESS:
QAnd –
SENIOR CONSTABLE BLUNDELL:
QSenior Constable Blundell of Mount Barker Police attached to APY Support.
SENIOR CONSTABLE DAVIESS:
QAnd –
COMMUNITY CONSTABLE SCALES:
QCommunity Constable Scales.
SENIOR CONSTABLE DAVIESS:
QOkay, do you agree that there’s no-one else in the room other than the people that have said their names, Bruce.
ACCUSED:
ANo-one else, no.
QNo-one else here. Okay. Okay Bruce, as stated before when we saw you at your house and arrested you, you’ve been arrested for serious criminal trespass, breaking into the store, but we won’t talk about that straightaway ‘cos I wanna talk about some other things as well, all right.
ARight.
QJust to let you know, okay. This first one I’m gonna ask you about is, it happened on Tuesday night, the same night that the store got broken into, okay, and it was at the back of the MSO House, Barry Packer, the ESO here in Amata, like, disturbed some people trying to break into the shipping container in his backyard, okay. I’m gonna ask you some further questions about that, okay, you don’t have to talk to me about it if you don’t want to but if you do talk to me about, about that, it will be recorded on videotape and can be used at court. Do you understand.
ARight.
QAnd just for the purpose of the tape, PIR08 Juliet 657 double 9 refers to this matter. Okay Bruce, as I said, Barry caught some people trying to break into the shipping container in his backyard on Tuesday night, and that was 15th of January this year, all right. Do you know anything about that.
(Discussion between Johnathon LYONS and Accused in Pitjantjatjara Language)
QYou tell me what you know about that one. (emphasis added).
ACCUSED:
AI was tried to break in and another bloke. And when I break in, you can’t break in.
The interview then continued with the accused making confessions to a number of property offences. The interview concluded at 5.23 p.m., some two and a quarter hours later.
Requirements of Police Interviews
Section 79A of the Summary Offences Act sets out the rights of an accused person upon arrest. Relevantly, it reads as follows:
(1) Subject to this section, where a person is apprehended by a police officer (whether with or without a warrant)—
(a) the person is entitled to make, in the presence of a police officer, one telephone call to a nominated relative or friend to inform the relative or friend of his or her whereabouts; and
(b) where the person is apprehended on suspicion of having committed an offence—
(i) the person is entitled to have a solicitor, relative or friend (in the case of a minor the relative or friend must be an adult) present during any interrogation or investigation to which the person is subjected while in custody; and
(ii) if English is not the person's native language—the person is entitled, if he or she so requires, to be assisted at an interrogation by an interpreter; and
(iii) the person is, while in custody, entitled to refrain from answering any question (unless required to answer the question under this or any other Act or law).
(1a) …
(1b) …
(2) The police officer who is in charge of the investigation of a suspected offence in relation to which a person has been apprehended may decline to permit—
(a) the person in custody to make a telephone call to a particular person (being a relative or friend); or
(b) a particular person (being a relative or friend of the person who has been taken into custody) to be present at an interrogation or investigation, if the officer has reasonable cause to suspect that communication between the person in custody and that particular person would result in an accomplice taking steps to avoid apprehension or would prompt the destruction or fabrication of evidence.
(3) A police officer must, as soon as is reasonably practicable after the apprehension of a person—
(a) inform that person of his or her rights under subsection (1) ; and
(b) warn the person that anything that he or she may say may be taken down and used in evidence.
Mr Hill for the accused set out in the application the relevant provisions of Police General Order 3015 which was created for the guidance of police officers interrogating Aboriginal persons. The relevant parts of the General Order are as follows:-
12. INTERROGATION OF ABORIGINALS
In addition to the requirements of the Summary Offences Act, 1953 relating to the rights of a person apprehended by a member of the police force (see section 79A Summary Offences Act 1953), when an Aboriginal person is to be interrogated in relation to an offence, the member proposing to conduct the investigation shall ensure that:
12.1 when a tribal or semi-tribal Aboriginal is involved, every effort is made to have an independent third party present at the interrogation. If practicable, such a part should be either a solicitor or and A.F.O (Aboriginal Field Officer). If practicable, the person attending should have some understanding of the native language of the person being interrogated.
…
13.ARREST OF ABORIGINALS
When an Aboriginal person is arrested the officer in charge of the receiving station shall ensure that:
13.1 approved printed information from the Aboriginal Legal Rights Movement explaining the nature of their services is supplied to the prisoner where available;
13.2 the offender has no objection to his name and the nature of the charge being supplied to the Aboriginal Legal Rights Movement;
13.3 if the offender raises no objection, the details of the offender, the charge and the time and place of the Court hearing are supplied to an A.F.O;
13.4 when an Aboriginal person is in custody at this station and that person requests the attendance or assistance of an A.F.O. to arrange bail or legal advice, then every practical endeavour is made to contact the nearest available A.F.O;
13.5 if a telephone call other than a local call is necessary, then that call is made and charged either to the prisoner or by reverse charge call to the A.F.O. who will accept a reverse charge call if the prisoner suspect has insufficient funds to meet the cost:
13.6 when an A.F.O. attends he is granted the same facilities that a visiting solicitor or relatives are accorded.
Voluntariness
Mr Hill submitted first that the accused’s answers to the police were not voluntary; the answers were not given in the exercise of a free choice to speak or remain silent. He submitted that the accused was a semi-tribal Aboriginal man whose first language was not English. He had been effectively denied the opportunity to have a lawyer present or even to get legal advice. It was a Saturday, the nearest Aboriginal Legal Rights Movement (ALRM) office was in Port Augusta, 1,000 kilometres away, and no-one offered him the opportunity to make a phone call to see if he could obtain legal advice. In the circumstances, the accused had been exhorted or pressured into answering police questions. The “question” immediately preceding his first confession was that emphasised by italics in the transcript of the questioning at the police station – “you tell me what you know about that one”.
In R v Dolan (1992) 58 SASR 501 at 510-11 Olsson J referred to the High Court authorities bearing on voluntariness of statements. His Honour referred to McDermott v The King (1948) 76 CLR 501, Cleland v The Queen (1982) 151 CLR 1 and R v Lee (1950) 82 CLR 133. His Honour then said:
These authorities hold that a confessional or potentially incriminating statement made to a police officer out of court by an accused person may not be admitted into evidence against him upon his trial unless it is shown that such statement has been made in the exercise of his free choice. The choice in question is that of a free choice to either speak or be silent. If the statement is the product of circumstances in which, despite the fact that there has been no apparent direct duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it nevertheless appears that the person interrogated felt obliged to answer, then the Crown onus may well not have been discharged.
No evidence was led on the voir dire by either the prosecution or defence other than the production and playing of the video record of what transpired at Amata and a typed transcript of what was said on the video. Beyond referring to the “question” immediately preceding the accused’s first confession, Mr Hill did not and could not suggest that the police had engaged in any duress, intimidation or persistent importunity of the sort referred to in the authorities. No threat was made, no promise or inducement offered. Such insistence or pressure as was applied appears in the transcript set out above.
The absence of threats or inducements will not necessarily mean that statements made will be regarded as voluntary. In R v Hallam and Karger (1985) 42 SASR 126 at 135 King CJ referred to the “width of the common law rule” excluding involuntary confessions adumbrated by the High Court in McDermott v The King and approved in Cleland v The Queen and said:
In this case there was no violence and there was no express threats or inducements. I am by no means satisfied, however, that such statements as the appellants made were made in the exercise of a genuinely free choice. The circumstances of their custody placed them under considerable pressure.
His Honour then referred to the circumstances of the arrest in that case which had no real similarity to the circumstances in this case.
Notwithstanding the breadth of the considerations that may give rise to a finding of involuntariness I do not think that it can be said in this case that the accused was placed in such a position by the police that he could not exercise a free choice about whether or not to speak to them. I conclude that the prosecution has discharged it’s onus of proving that his statements were made voluntarily.
There remains the necessity to examine the discretionary grounds upon which confessions may be excluded.
Discretionary Exclusions
In R v Swaffield (1998) 192 CLR 159 the High Court undertook an analysis of the exclusionary discretions. A consideration of the discretions arises only after the Court has determined that the accused’s statements are voluntary. All members of the Court acknowledged that the unfairness discretion and the public policy discretion overlapped. There were separate judgments delivered by Brennan CJ and Kirby J. There was a joint judgment delivered by Toohey, Gaudron and Gummow JJ. There was a slight difference in the approach taken by Brennan CJ on the one hand and the other members of the Court on the other as to the delineation between these two discretions. Brennan CJ took the view that improprieties in police conduct should be considered under the public policy discretion except where that conduct made the reliability of the confession dubious. His Honour said this at page 181:-
([27]) … now that the development of the public policy discretion allows for the balancing of the public interest in refusing to sanction unlawful or improper conduct and the public interest in placing all relevant and admissible evidence before a Court, there is much to be said for remitting consideration of the conduct of law enforcement officers to the public discretion in all cases except where that conduct makes the reliability of the confession dubious. The fairness discretion would then focus on cases where the conduct which induces the making of the voluntary confession throws doubt on its reliability and thereby establishes the unfairness of using the confession against the confessionalist on his trial. Taking this approach, the public policy discretion would focus on the kind and degree of illegal or improper conduct that produced the confession or produced the confession in a particular form. If the focus is on the conduct of the law enforcement officers, the issue can be sharply delineated: is the confession, albeit voluntary and apparently reliable, to be admitted in the public interest or is it to be excluded in the public interest because of the conduct by which it was obtained? …
In paragraph [28] His Honour said:
Of course, the two discretions do overlap and in a sense it is immaterial whether a trial judge considers the facts of a case under one heading rather than another. But a consideration of the nature and degree of the conduct of law enforcement officers under the heading of public policy clarifies the significance of any illegal or improper conduct on the part of law enforcement officers. If the confession is voluntary and apparently reliable, the only unfairness to an accused in admitting his confession against him is that he was induced to make the confession by conduct which is contrary to statute or to public policy. For example, if a confession is obtained in breach of an important statutory directive to law enforcement officers or by their deliberate or reckless disregard for the law or for proper standards of conduct, the public interest may require the rejection of a voluntary and apparently reliable confession…
The real difference between the approach of Brennan CJ and the other members of the court is that Toohey, Gaudron and Gummow JJ in their joint judgment and Kirby J in his separate judgment did not seek to limit the public policy discretion to cases where the conduct of the police was being questioned. Their Honours took the view that the admissibility of confessions should be considered first by reference to voluntariness then to exclusion based on considerations of reliability and then finally on the overall discretion taking account of all of the circumstances of the case. Having said that, Toohey, Gaudron and Gummow JJ recognised the overlap between the discretionary exclusion. Their Honours said at p 196 par [74]:
One matter which emerges from the decided cases is that it is not always possible to treat voluntariness, reliability, unfairness to the accused and public policy considerations as discrete issues. The overlapping nature of the unfairness discretion and the policy discretion can be discerned in Cleland v The Queen. It was held in that case that where a voluntary confession was procured by improper conduct on the part of law enforcement officers, the trial judge should consider whether the statement should be excluded either on the ground that it would be unfair to the accused to allow it to be admitted or because, on balance, relevant considerations of public policy require that it be excluded…
Kirby J agreed with the joint judgment in these terms at p 207 par [119]:
119. As Toohey, Gaudron and Gummow JJ have described, the Chief Justice, during argument, asked counsel to consider whether it might be appropriate for the tests for the admissibility of disputed confessions to be re-expressed by the Court and simplified. This would involve consideration, in turn, of three matters namely whether the confession was voluntary; if so, whether it was reliable; and, if so, whether it should nonetheless be excluded from evidence in the exercise of an overall judicial discretion. This last consideration would permit attention to be given to factors which, in the past, this Court has accepted as relevant. They would include unfairness to the accused; disproportionate prejudice outweighing the probative value of such evidence; and relevant public policy considerations. The last might involve official conduct which was illegal or improper or which would otherwise involve securing the conviction of the accused at too high a price.
120. I favour such a re-expression of the tests to be applied…
Later in his judgment Kirby J referred to the overlapping nature of the discretionary exclusion discussed by the High Court in Foster v The Queen (1993) 67 ALJR 550. His Honour referred to the majority judgment in these terms at p 211 par [128]:
Their Honours acknowledge that the two discretions will overlap “to no small extent”. However they distinguished between them on the basis that the main focus of the unfairness discretion is on the effect of the conduct on the accused whilst the policy discretion centres on “large matters of public policy”.
Despite the main focus being different between the two discretions I find it difficult on the facts of this case to distinguish between the two. These reasons are being published after I ruled that the confessions should be excluded. At the time of making the ruling I was not certain which of the two discretions was the appropriate one to exercise, if there was to be only one. At the time I had concluded, without saying, that the confessions were voluntary. As already indicated, I remain of that view. Upon reflection, I remain unable to find that one discretion is more apt than the other. I think that there are both aspects of unfairness to the accused and public policy considerations which call for the exclusion of the confessions. I turn to the evidence which bears on the discretions.
As mentioned earlier the accused is aged 20 and is an apparently fit and healthy semi-tribal Aboriginal man. There was no reason to think he was intoxicated when he was spoken to by the police. He was spoken to at 3 pm on a Saturday in January 2008. He was in his home community. Throughout the questioning at the house and at the police station the police station, the police were polite. There was nothing to suggest that the confessions were unreliable. In his balanced submissions on behalf of the prosecution, Mr Handshin pointed out that some of the stolen goods were located at the accused’s house. That suggests that the confessions were reliable. In fact after I excluded the Record of Interview the accused pleaded guilty to counts where the stolen property was located at his house. The prosecution entered nolle prosequi in respect of the other counts.
How then could it be said that it was unfair to the accused to admit his confessions into evidence, and how can there be public policy reasons to exclude the confessions?
In my view the answer to both questions is that the police paid only lip service to the requirements of s 79A of the Summary Offences Act. They paid less than lip service to their own General Order dealing with the arrest and interrogation of Aboriginal people. In the circumstances of this case the explanation to the accused of his rights was, at best, perfunctory. In the result, the conduct of the police rendered it unfair to the accused to admit his confessions and there are public police reasons why they should be excluded. I turn to the reasons for those conclusions.
Amata is an Aboriginal community about 1,000 kilometres from the nearest office of the ALRM at Port Augusta. There is a telephone at the Amata Police Station. In the circumstances it was plainly not practicable to have a solicitor or an Aboriginal Field Officer present during the police questioning of the accused. That fact would have been known to both the police and the accused. It must have been known at least to the police that they could have telephoned the ALRM office. No attempt to ring the ALRM office was ever made.
Those facts must be borne in mind when one reflects on how the police proceeded. Four officers went to the accused’s house and arrested him when he came to the door. Four of them were present when he was told of his s 79A rights by Senior Constable Daviess. English was not the accused’s first language, but the interview demonstrates that he had a reasonable command of the language. In compliance with s 79A(1)(a) the accused was told he could make a telephone call to someone to let them know where he was. He declined to exercise that right. He was just outside his own house and the police station was within walking distance. He was told he could have a lawyer, friend or family member present if he was to be questions. He immediately asked for “Lee”. Lee is the accused’s father. The accused was told by the police that he could not have his father present. It is not entirely clear upon what basis the accused was denied the presence of his father. Senior Constable Daviess said that his father had given the police a statement about the Amata store. That was apparently true. Further the accused’s father had not only given a statement to the police but he had identified his son to police on a security video which recorded one of the offences. It is not clear that that fact would be sufficient reason for excluding the father pursuant to sub-section (2). A nominated person can be excluded “if the officer has reasonable cause to suspect that communication between the person in custody and that particular person would result in an accomplice taking steps to avoid apprehension or would prompt the destruction or fabrication of evidence”. It is hard to see how the police officer could have entertained either of those views. Nevertheless the accused was given the further option of having his mother “or anyone you want” to be nominated. The accused nominated Jonathon who was an uncle. Having nominated the uncle, Senior Constable Daviess reiterated that the accused could have someone with him while police spoke to him.
In compliance with s 79A(1)(b) the accused was told that he could have present someone to help with English. He was also cautioned.
There was thus compliance with the letter of the s 79A(1) requirements. However a closer examination of the right to have someone of the accused’s choosing present during interrogation has several aspects. The section speaks of a solicitor, relative or friend. Each of those classes of person might fulfil several of the functions for which the legislation is designed. Of itself the presence of each would have tended to discourage improper behaviour on the part of the police during interrogation. The presence of each would give the person being questioned some comfort that nothing untoward would happen during the questioning. However only a solicitor or an Aboriginal Field Officer could give the accused any legal advice. Neither a friend nor a relative could do that. The accused’s uncle could not do that.
In his written application, Mr Hill, for the accused said that it had been usual practice for police to contact the ALRM when they propose questioning an Aboriginal person. It is the experience of the court that it has been a common practice for many years, if not one universally observed, for police to ask Aboriginal detainees if they wish to have someone from the ALRM contacted or present during the interview.
Police General Order 3015 recognises, at least in spirit, the desirability of police contacting ALRM before embarking upon an interview with an Aboriginal detainee. Paraphrasing paragraph 12 of the Order, a police officer should make every effort to have an independent third party present at an interview and, if practicable, that third party should be a solicitor or an Aboriginal Field Officer. Plainly the spirit or intent of the Order is that Aboriginal detainees should wherever practicable have access to legal advice. In this case, despite there being no obvious urgency about the questioning in relation to the property offences being investigated, it might be accepted that it was not practicable for the police to defer questioning until someone from the ALRM office could be present. That said, there is no apparent reason whatsoever for the failure of the police to telephone the ALRM office or to make the accused aware of the possibility of their doing so if he wished. Having ascertained that the accused wished to have his uncle present, the police proceeded immediately with their questioning. There were four officers present. Effectively the first question put to the accused was “You tell us what you know about that [offence].”
Paragraph 13 of the General Order relates to the obligations of police on arrest. It is not clear when it is anticipated that these obligations should be carried out. The accused had been arrested at his house. A plausible reading of paragraph 13.1 is that upon his arrival at the police station the accused should have immediately been given printed material from the ALRM. That paragraph may also be read to mean that such material should be given to a detainee after he has been arrested, questioned and processed. Armed with such material a detainee would then be able to arrange to be represented by ALRM in court. However the Order is consistent with the terms and the spirit of Order 12 relating to the interrogation stage. No material was given to the accused by the officer in charge of the Amata Police Station. It is not known whether any material was available at the Police Station but verbal information would have been a ready substitute. Paragraph 13.2 and 13.3 appear to relate to some time after the charge or charges have been formulated and possibly after they have actually been laid. The obligation under paragraph 13.4 appears to arise whenever a detainee requests the attendance or assistance of an Aboriginal Field Officer. The accused made no such request.
Unfairness discretion
In the circumstances the accused was at some disadvantage when being questioned. He was a semi-tribal Aboriginal who had only access to a kinsman when questioned. Between them, the four police officers present at the interrogation complied only with the letter of the requirements of s 79A of the Act and they failed to comply with the implications of the requirements of their General Order 3015. No urgency to embark upon the questioning explains why the spirit of the act and the General Order should not have been observed. The accused was not given the opportunity to consider seeking legal advice before he was questioned. He could easily have been given that opportunity. The accused was charged with various offences of aggravated serious criminal trespass in a non-residence and theft. The offences were alleged to have occurred at the Amata School, the Amata Art Centre and the community store and pool. As serious as these property offences were, their investigation by the police was not dangerous and nor were they under any pressure of time. Members of the Amata community against whom the offences might be seen to have been committed were cooperating with the police. The accused’s own father had given the police a statement and had identified him on security footage.
In my view the failures of the police to which I have referred made it unfair to the accused to admit his confessions. Despite there being no apparent consequent unreliability of his confessions, it is unfair to him to admit them when he was not given a readily available opportunity to consider getting legal advice before answering police questions. I will therefore exclude the confessions under the unfairness discretion.
Public Policy discretion
Further it seems to me that as a matter of public policy in the circumstances of this case the court should not appear to give approval to the failure of the police to afford the accused the simple but important opportunity to seek legal advice. The right or opportunity implicit in the Act and the General Order is particularly important when police are investigating offences in remote Aboriginal settlements. If, as appears to be the case, the failures which occurred in this interrogation are uncommon because there is a widespread practice of police contacting the ALRM before interrogating Aboriginal detainees, then there is a public interest in reinforcing the importance of complying with that practice. Equally it is important to make clear that there are forensic consequences of non-compliance.
I will therefore exclude the confessions in the exercise of the public policy discretion.
Thus the exclusion is the result of the exercise of both the unfairness and the public policy discretions.
0
7
1