R v R & T

[2009] QDC 425

DISTRICT COURT OF QUEENSLAND

CITATION:	R v R and T [2009] QDC 425
PARTIES:	R (Respondent)
v
R (First applicant)
and
T (Second applicant)
FILE NO/S:	DIS-00002770/09(1) (LFR MTIS-DIS-57/09)
DIVISION:	District Court at Mt Isa
PROCEEDING:	Application
ORIGINATING  COURT:	District Court at Mt Isa
DELIVERED ON:	13 August 2009
DELIVERED AT:	Mt Isa
HEARING DATE:	12 August 2009
JUDGE:	Dearden DCJ
ORDER:	That the police records of interview between the defendants R and T and SPC HN conducted at the Mornington Island Police Station on 8 March 2007 are ruled inadmissible.
CATCHWORDS:	CRIMINAL LAW (Qld) – Police powers and responsibilities – Police records of interview – Admissibility – Juvenile Offenders - Voluntariness – Right to silence – Unfairness discretion
LEGISLATION:	Juvenile Justice Act 1992 (Qld) ss 4, 29; Schedule 4
Police Powers & Responsibilities Act 2000 (Qld) s 428
Police Powers & Responsibilities Regulation Schedule 10 (Responsibilities Code) ss 36, 37, 44A
CASES:	Siddon v State of Western Australia [2008] WASC 100 R v Lee (1950) 82 CLR 133 R v Swaffield & Pavic (1998) 192 CLR 159 Collins v R (1980) 31 ALR 257 Van der Meer (1998) ALJR 656 Duke v R (1989) 180 CLR 508 Tofilau v R (2007) 238 ALR 650
COUNSEL:	Mr M Cowen for the respondent Mr D Lynch for the first applicant Mr G McGuire for the second Applicant
SOLICITORS:	Director of Public Prosecutions (Qld) for the respondent Anderson Telford Lawyers for the first and second applicants

[1] HIS HONOUR: The defendants, R and T, are two of seven co- defendants, conjointly charged with one count of assault and intent to commit rape, and three counts of rape. It is alleged that the offence occurred on or about 28 February 2007, in respect of a complainant, P, at Mornington Island. An eighth person has been charged in respect of the same incident but has not yet proceeded to a committal hearing. Each of the defendants, R (represented at this hearing by Mr D Lynch of counsel) and T (represented by Mr G McGuire of counsel), make applications pursuant to Criminal Code s 590AA for the exclusion of confessional statements made by each of them, on the grounds of voluntariness, and/or unfairness. Similar applications in respect of four other co-defendants are to be heard over the next two days.

[2] Each of the defendants, R and T, were interviewed by Senior Constable HN at the Mornington Island police station on 8 March 2007, each in the presence of a support person, RF. R’s interview took place between 9.21 a.m. and concluded at 9.56 a.m. T’s interview took place from 12.37 p.m. until 1.16 p.m. Ms Suzy Dormer, psychologist, prepared reports in respect of R (Exhibit 5) and T (Exhibit 6) and was cross- examined at some length in these proceedings by Mr Cowen, who appears on behalf of the Director of Public Prosecutions.

[3] Given the similarities, both factually and legally, in respect of each of the applications, it was considered that the applications should be heard concurrently on 12 August 2009, and it is therefore convenient that these reasons be delivered in respect of both defendants today (13 August 2009).

FACTUAL BACKGROUND

[4] R and T, together with five other co-defendants (in the District Court), and a further (potential) co-defendant (still in the Magistrate's Court jurisdiction) are alleged, on the prosecution's case, to have attacked the complainant, P on 28 February 2007. The essence of the prosecution case is that P was punched and/or kicked and then sexually assaulted and/or raped by various persons within a group of young Aboriginal males, which included both applicants.

[5] R, in his police interview, admits being present when P was attacked, and states that he karate chopped her once to the back of the head. T, in his police interview, also admits being present during the attack. He admitted kicking P once in the back of the neck, and also admitted getting on top of P for the purpose of having sex with her, although he says he was pulled away before having sex or even removing his clothing.

THE LAW
Voluntariness

[6] It is clear that "a statement must be voluntary in order to be admissible" and "the Crown has the burden of satisfying the trial Judge in every case as to the voluntary character of a statement before it becomes admissible" (R v. Lee (1950) 82 CLR 133 at 144 and see R v Swaffield & Pavic (1998) 192 CLR 159, per Brennan CJ at 168).

[7] "The admissibility of the confessions as a matter of law (as distinct from discretion…) is not determined by reference to the propriety or otherwise of the conduct of the police officers in the case, but by reference to the effect of their conduct in all the circumstances upon the will of the confessionalist." Collins v R (1980) 31 ALR 257, per Brennan J (as he then was) 307, and see R v Swaffield & Pavic [1998] (192 CLR 159, per Brennan CJ at 169-170).

[8] In determining objections to the admissibility of a confession that is said to have been made involuntarily, the Court does not attempt to determine the actual reliability of the confession. Rather, it assesses the nature and effect of any inducement to make the confession, in order to determine whether the confession was made because the "will of the confessionalist was overborne by the conduct of a person or persons in authority". (R v Swaffield & Pavic [1998] 192 CLR 159, per Brennan CJ, 171).

[9] It is therefore necessary to examine "the age, background and psychological condition of [the] confessionalist, and the circumstances in which the confession is made". (Collins v R [1980] 31 ALR 257, per Brennan J 307, and see R v Swaffield and Pavic [1998] 192 CLR 159, per Brennan CJ, 170).

[10] McKechnie J in Siddon v. The State of Western Australia [2008] WASC 100, paras 2-4, summarised (usefully) the voluntariness test as follows:-

"The word 'voluntary'…does not mean volunteered. It means
made in the exercise of a free choice to speak or be silent.

3. People do make confessions to crimes or other wrongful behaviour and admissions against interest. The law allows admissibility of such admissions if the prosecution establishes that the probabilities are that the person has spoken in the free exercise of a choice to speak or remain silent. A person is not obliged to incriminate themselves. If they do so voluntarily, however, that evidence will be admissible. Voluntariness is thus a precondition to admissibility for the State to establish on the balance of probabilities.

4. The administration of a caution is not an essential precondition to voluntariness. The essential precondition is the exercise of a free choice. Cases can be found where a caution was not administered but the Court was satisfied that the person who spoke did so voluntarily. To opposite effect, the administration of a caution does not automatically lead to the conclusion that a confession was voluntary. There are cases where, despite the administration of a caution, a person has not been shown to have understood their right to speak or remain silent."

Unfairness discretion

[11] Unfairness can be found to be a basis for not admitting a confession, not only because of "dubious reliability", but also when a confession "might not have been made or not made in the same form but for the improper conduct of the police…" (R v Swaffield & Pavic [1998] 192 CLR 159, per Brennan CJ, 175, see also Van der Meer (1998) ALJR 656, per Mason CJ, 662, Duke v R (1989) 180 CLR 508, per Brennan J, 513):-

"Unfairness…relates to the right of an accused to a fair trial…[it] may be that no confession might have been made at all, had the police investigation been properly conducted."

(R v Swaffield & Pavic [1998] 192 CLR 159, per Toohey,

Gaudron and Gummow JJ, 189).

[12] The High Court has recently reiterated the principle

that:

"The impropriety of police conduct may be a ground for the exclusion of any resulting confession as a matter of discretion" (ie the unfairness discretion), but it remains necessary for the defendant's will to be overborne, if the confession is to be considered "involuntary" (Tofilau v R (2007) 238 ALR 650, per Callinan, Heydon and Crennan JJ, 746).

[13] Relevant legislative and operational procedure provisions

Police Powers and Responsibilities Act (Qld) 2000, Section

420

420 Questioning of Aboriginal people and Torres Strait
Islanders
(1) This section applies if—
(a) a police officer wants to question a relevant person;
and
(b) the police officer reasonably suspects the person is
an adult Aborigine or Torres Strait Islander.
(2) Unless the police officer is aware that the person has
arranged for a lawyer to be present during questioning,
the police officer must—
(a) inform the person that a representative of a legal aid
organisation will be notified that the person is in
custody for the offence; and
(b) as soon as reasonably practicable, notify or attempt
to notify a representative of the organisation.
(3) Subsection (2) does not apply if, having regard to the
person’s level of education and understanding, a police
officer reasonably suspects the person is not at a
disadvantage in comparison with members of the Australian
community generally.
Police Powers and Responsibilities Act (Qld) 2000 Section

421

Chapter 15 Powers and Responsibilities relating to
Investigations and Questioning for Indictable Offences
Part 3 Safeguards ensuring rights of and fairness to
persons questioned for indictable
offences
Reprint 7A effective 1 July 2009 Page 379
(4) The police officer must not question the person
unless—
(a) before questioning starts, the police officer has, if
practicable, allowed the person to speak to the support
person, if practicable, in circumstances in which the
conversation will not be overheard; and
(b) a support person is present while the person is being
questioned.
(5) Subsection (4) does not apply if the person has, by a
written or electronically recorded waiver, expressly and
voluntarily waived his or her right to have a support
person present.
(6) If the police officer considers the support person is
unreasonably interfering with the questioning, the police
officer may exclude the person from being present during

questioning.

Police Powers and Responsibilities Act (Qld) 2000, s 428

428 When is a person unable to properly perform the role
of a support person
(1) This section states circumstances in which a person
may be unable to properly perform the role of a support
person for a relevant person.
(2) However, this section does not limit the circumstances
in which a person may be unable to properly perform the
role of a support person.
(3) The circumstances are as follows—
(a) the person’s ability to perform the role is
substantially impaired by the effect of something the
person has ingested, for example, alcohol, a drug or a
potentially harmful thing, to the extent that the person
is unable to act in the best interests of the relevant
person;
(b) the person is a person with an impaired capacity and
the person’s impairment prevents the person from acting in
the best interests of the relevant person;
Police Powers and Responsibilities Act (Qld) 2000, s 429
Chapter 15 Powers And Responsibilities Relating To
Investigations And Questioning For Indictable Offences
Part 3 Safeguards ensuring rights of and fairness to
persons questioned for indictable offences
Page 384 Reprint 7A effective 1 July 2009
(c) the person is, or appears to a police officer to
be,unwilling to perform the role of a support person
because of illness, injury, pain, tiredness or a similar
cause;
(d) the person has an affiliation, association or other
relationship with a police officer questioning the
relevant person;
(e) the person has a relationship of authority with the
relevant person that may prevent the person from acting in
the best interests of the relevant person;
Example for paragraph (e)—
a teacher who recently excluded the relevant person from a
school
(f) the person is a victim of the offence for which the
relevant person is being questioned or a friend of the
victim;
(g) the person witnessed the commission of the offence for
which the relevant person is being questioned.
(4) In this section—
ingest includes—
(a) administer; and
(b) inhale; and
(c) smoke.

Police Powers and Responsibilities Act (Qld) 2000 Regulation, Schedule 10 (Responsibilities Code) ss 36, 37 and 44A

36 Questioning of Aboriginal people and Torres Strait
Islanders
(1) A police officer who is about to question a relevant
person the police officer reasonably suspects is an adult
Aborigine or Torres Strait Islander must, unless he or she
already knows the relevant person, first ask questions
necessary to establish the person’s level of education and
understanding.
(2) The questions the police officer may ask include
questions, not related to the relevant person’s
involvement in the offence, that may help the police
officer decide if the person—
(a) is capable of understanding the questions put to him
or her, what is happening to him or her, and his or her
rights at law; and
(b) is capable of effectively communicating answers to
them questions; and
(c) is aware of the reason the questions are being asked.
(3) If the police officer considers it is necessary to
notify a representative of a legal aid organisation that
the relevant person is about to be questioned in relation
to an offence, the
police officer must inform the relevant person of the
intention to notify the legal aid organisation, in a way
substantially complying with the following—
‘As you have not arranged for a lawyer to be present, a
legal aid organisation will be notified you are here to be
questioned about your involvement in an indictable
offence’
(4) If the relevant person has indicated he or she does
not wish to telephone or speak to a support person or
arrange for a support person to be present during
questioning, the police officer conducting the questioning
must inform the relevant person that he or she may have a
support person present during the questioning.
(5) The information given under subsection (4) must
substantially comply with the following—
‘Is there any reason why you don’t want to telephone or
speak to a support person and arrange for a person to be
present during questioning?
Do you understand that arrangements can be made for a
support person to be present during the questioning?
Do you also understand that you do not have to have a
support person present during questioning?
Do you want to have a support person present?’.
(6) If the police officer reasonably suspects the person
is at a disadvantage in comparison with members of the
Australian community generally, and the person has not
arranged for a support person to be present during the
questioning, the police
officer must arrange for a support person to be present
23 For the obligation to notify the legal aid
organisation, see the Act, section 420.
24 See the Act, section 440 (List of support persons and
interpreters).
37 Cautioning relevant persons about the right to silence

(1) A police officer must caution a relevant person about the person’s right to silence25 in a way substantially complying with the following—

‘Before I ask you any questions I must tell you that you have the right to remain silent. This means you do not have to say anything, answer any question or make any statement unless you wish to do so. However, if you do say something or make a statement, it may
later be used as evidence. Do you understand?’.
(2) If the police officer reasonably suspects the relevant
person does not understand the caution, the police officer
may ask the person to explain the meaning of the caution
in his or her own words.
(3) If necessary, the police officer must further explain
the caution.
(4) If questioning is suspended or delayed, the police
officer must ensure the relevant person is aware he or she
still has the right to remain silent and, if necessary,
again caution the person when questioning resumes.
(5) If a police officer cautions a relevant person in the
absence of someone else who is to be present during the
questioning, the caution must be repeated in the other

person’s presence.

44A Ensuring support persons understand role
(1) Before a police officer questions a relevant person in
the presence of a support person, the police officer must—
(a) give the support person information in the approved
form about the role of support persons during questioning;
and
(b) ensure, as far as practicable, that the person
understands the nature of the support person’s role; and
(c) if the support person asks, give an explanation of
anything relevant to the person’s role as a support
person; and
(d) inform the support person of the identity of the
relevant person and why the person is being questioned.
(2) The information must include the following—
(a) a summary of sections 427, 428, 429 and 430 of the
Act;
(b) a statement that the support person must act in the
best interests of the relevant person;
(c) a statement that, unless the support person is a
lawyer, the support person must not provide legal advice
to the relevant person but may ask the relevant person
questions to ensure the relevant person understands—
(i) that the person may ask for a lawyer to be present
during questioning or at any time before
questioning ends; and
(ii) that the person is not obliged to say anything
during questioning; and
(iii) that anything the relevant person says during
questioning may be used in evidence in a court;
and
(iv) what is said by a police officer during questioning."

[14] The Queensland Police Service Operations Procedures Manual requires a police officer to establish, in respect of an interview, whether a special need exists. At paragraph 6.3.2 the Manual requires police to assess the following:-

"To be considered capable of looking after or managing their own interests a person should be '…(v) fully aware of the consequences which may result from questioning; and

(vi) capable of understanding his or her rights at law.'"

[15] At paragraph 6.3.3 the Manual requires police to take whatever action is necessary to compensate for special need or to comply with the relevant legislative requirements.

Psychological evidence

[16] Ms Dormer's reports in respect of R (Exhibit 5) and T (Exhibit 6) indicate that each falls beneath the 5th percentile for a 19 year old for intellectual maturity and verbal capacity, an impaired range for both capacities. Each of R and T have suffered disadvantage from unstable home lives and upbringings.

[17] Ms Dormer conceded in cross-examination that each of the applicants had presented as reasonably clear thinking young men, and that their concentration spans had deteriorated over the two hours each spent, first, in clinical interviews and then in testing. Mr Dormer remained firm, however, in her evidence that each of the applicants, though having intellectual capacity, were impaired for their age.

Role of support person, RF

[18] It is useful at this point to examine the role of RF,
support person, in respect of both interviews.

[19] RF had no recollection at the committal of having sat in as a support person on either interview (committal day 5 pp 16-18), although she claimed to have sat in on an interview with E (a co-defendant), which is an assertion that is accepted as factually incorrect. It was not possible, therefore, to explore at committal what discussions, if any, she had with either police officers or either defendant prior to their police interviews.

[20] As a member of the Mornington Island Elders Group, RF regularly sat in Court with the visiting Magistrate, and was part of a process giving advice on sentencing. RF was at relevant times an advisor to the Health Board, and was involved with a domestic violence group, and the women's shelter for abused women and children, in addition to her role as Aboriginal Legal Service (otherwise described as Aboriginal Legal Aid) field officer, where she'd sat in on "lots and lots of interviews"(committal day 5 p.9). RF was clearly a respected person, but also clearly an authority figure on Mornington Island, as a result of the various roles that she undertook and the position she occupied as an Elder on that island.

Record of interview - R

[21] R was 17 years … at interview … and an "adult" in Queensland criminal law terms. He has problems reading and writing and speaking the English language (see Exhibit 1B).

[22] R was arrested at 8.44 a.m. on 8 March 2007, and taken to Mornington Island Police Station, where RF, at police request, attended for an interview between R and Senior Constable HN, which ran from 9.21 a.m. to 9.56 a.m.

[23] Senior Constable HN recalls speaking to RF, but did not give her any documents, and assumed she was aware of her role and responsibilities as a support person (committal Day 4, p. 77). Senior Constable HN was aware RF was a member of the Justice Group and elder on Mornington Island (committal Day 4, p. 70), and that she was the Aboriginal Legal Aid case worker (committal Day 4, p. 77).

Senior Constable HN, in the record of interview, said that he wanted to "talk" to R (Exhibit 1B p. 2, 3), and referred to "having a chat" (Exhibit 1B, p. 3). In contrast, while administering the cautions, he spoke of being "obligated", a word he conceded he wouldn't expect the defendant to understand (committal day 4, p. 83).

[24] The key issue in the record of interview, though, was the administration of the cautions, and R’s response to those cautions. In that respect, it is useful to set out the relevant portion of the record of interview as follows (Exhibit 1B, p. 2, line 40 - p. 4, line 9):

"Senior Constable HN: "Yeah? Okay. Um, before I start asking you, or talking to you about that. Um, I've just got to tell you a few things. Okay? Which I'm obligated to do. Okay? Um, before I ask you any further questions, I must tell you that you have the right to remain silent. This means you do not have to say anything, or answer any questions, or make any statement, unless you wish to do so. However, if you do say something, or make any statement, it may later be used as evidence. Do you understand this warning? Do you know what that means?

R: No. Nah.

Senior Constable HN: Not really? Okay. Ba - basically what that means, R, is you don't have to talk to police if you don't want to.

R: Mm.

Senior Constable HN: Um, I see - I, or no other policeman, can make you speak, if you don't want to speak. Okay? [At this point R nods]. Um, I'm going to ask you some questions, and um, if you want to answer them, you can, if you don't want to answer them, you don't have to.

R: Mm.

Senior Constable HN: Do you understand that?

R: Yes.

Senior Constable HN: Okay. Are you happy with that, R?

RF: Yeah. I explained that to him.

Senior Constable HN: Mm.

RF: Like, I read this-----

Senior Constable HN: Yep.

RF: E - exactly what you said, you know? And I told him that during interview, when questions are asked and he doesn't want to answer them, he has to say to the interviewer, no, I don't want to answer that-----

Senior Constable HN: Mm.

RF: -----question.

Senior Constable HN: Mm-hm.

RF: That's his right to do that.

Senior Constable HN: Yep. Okay. Also I - I'll tell you som - ah furthermore ah, R. You have the right to telephone or speak to a friend or relative, to inform that person where you are, to ask for that person to be present during questioning. You also have the right to telephone ah, and speak to a lawyer of your choice, to inform that person where you are, and to arrange, or attempt to arrange, for a lawyer to be present during questioning. If you want to telephone or speak to any of these persons, ah questioning will be delayed for a reasonable time for that purpose. Is there anyone you wish to speak - telephone or speak to? [At this point Senior Constable HN did not pause for any response from the defendant]. Now, I've arranged for RF to be here with you, so, to give you some advice.

R: Mm.

Senior Constable HN: Okay? Is there anyone else you want to speak to before I start asking you some questions, having a chat to you, talk to you?

R: Nah.

Senior Constable HN: No? Do you want - do you want your family here?

R: No.
Senior Constable HN: Or, do you want ah a lawyer here?
R: I want to be here with RF.
Senior Constable HN: Ah - you've settled with o - RF?
R: Yeah, RF."

Conclusions in respect of R’s interview

[25] R was subject of cumulative disadvantages, some obvious,

some not so obvious. These include:

(a) He was clearly an Aboriginal man;
(b) He was living in a remote community;
(c) He was very young (although an adult in criminal
justice terms);
(d) He was verbally and intellectually impaired (see
Exhibit 5);
(e) He was from a disadvantaged background (Exhibit 5).

[26] Senior Constable HN, in his preliminary remarks in the interview, spoke (interchangeably) of "talk", "talking" and "chat" - a clear diminution of the importance of a formal record of interview with a suspect facing the prospect of charges carrying a maximum penalty of life imprisonment (see Siddon v State of Western Australia [2008] WASC 100, paras 19 and 20).

[27] With all due respect to RF, she does not appear to have adequately performed the role of support person. She was not supplied with the required documentation in respect of her role (Police Powers and Responsibilities Regulation, Schedule 10 (Responsibilities) s 44(A1)(a)). RF is clearly an authority figure on Mornington Island (Police Powers and Responsibilities Act s 428(3)(e)) and was the complainant in respect of unrelated charges relating to a co-defendant of R. RF, although holding a position as an Aboriginal Legal Aid field officer, is not legally qualified, and had no recollection of the relevant interview. Her extensive experience as a support person does not indicate that she adequately carried out her role on this occasion.

[28] In particular, it is clear that RF has failed to adequately explain to R that he had a free choice whether or not to speak, at all, to Senior Constable HN, and that if he did so, he would (given the party provisions of the Criminal Code), in all likelihood be providing incriminating evidence against himself in respect of offences carrying a maximum penalty of life imprisonment. Any competent criminal defence lawyer would, no doubt, have advised the defendant to decline to take part in the record of interview, although such a lawyer would have been obliged to comply with his or her client's instructions having delivered such advice.

[29] The administration of the cautions by Senior Constable HN was by rote. In particular, I note that when R was asked if he wanted to speak or telephone a lawyer, friend or relative, he was given no opportunity to reply, and the police officer indicated (effectively replying to his own question) that he had arranged for RF to attend (Exhibit 1B p.3).

[30] Critically, when asked whether he understood the warning in respect of the right to silence, R said "No". Although RF purported to speak on his behalf, the police officer at no stage sought to have R "explain the meaning of the caution in his … words" (Police Powers and Responsibilities Regulations Schedule 10 (Responsibilities Code) s 37(2)).

[31] I conclude therefore that the interview between Senior Constable HN and R has not been shown to have been voluntarily made, that is, made in the exercise of a free choice to speak or remain silent. As McKechnie J noted, in similar circumstances, in Siddon v State of Western Australia [2008] WASC 100, para 24, he was "left with the impression [having viewed the video of the disputed police interview] that only lip service was paid to the need to ensure that the accused understood his right to answer questions". McKenzie J's observations in that case are directly apposite to the interview of R.

[32] It is a trite observation that, had Senior Constable HN followed his legislative and operational procedural obligations, and received a reply which indicated clearly that R did understand his right to silence, and then chose to speak, the interview would have been admissible.

[33] The prosecution have failed to persuade me, on balance, that the interview with R was made voluntarily, and the interview is therefore excluded from evidence at the trial of R on this indictment.

[34] Although, strictly speaking, it is unnecessary to proceed to consider the unfairness discretion, for which the onus of course, rests on the defence, I would for the following reasons have concluded that it would be unfair to use the interview against R, had I been required to consider that matter, and I would have excluded it from evidence on the following grounds: -

(a) The lack of understanding of the right to silence by the defendant R and the failure of Senior Constable HN to elucidate whether the defendant did understand his right to silence and properly exercise his right.

(b) The impaired intellectual and verbal functioning of the defendant, who came from a disadvantaged background, and was a resident of a remote Indigenous community.

(c) The failure of RF to provide any adequate "support" in her
role as a support person.

(d) The clear breach by Senior Constable HN of his legislative obligations, which therefore failed to ensure that R's interests were protected.

Conclusions In Respect of the Interview of T

[35] T was 17 years … at interview, therefore an "adult" in Queensland criminal law terms. He was raised on Mornington Island … and can read and write (Exhibit 2B p.5).

[36] T was arrested at 9 a.m. on 8 March 2007 (Statement of LB para 16) and was transported to Mornington Island Police Station, where he remained in custody until he was interviewed from 12.37 p.m. until 1.16 p.m. by Senior Constable HN, with RF as support person (Exhibit 2B).

[37] Senior Constable HN contacted RF (committal day 4 p.63), and when she arrived, did not believe he gave her any documents (committal day 4 p.68). Senior Constable HN assumed RF understood her role (committal day 4 p.68). As noted previously in these reasons, Senior Constable HN was aware of RF's membership of the Justice Group and her role as an Elder on Mornington Island (committal day 4 p.70), and that she was a Legal Aid representative (committal day 4 p.68).

[38] Senior Constable in this record of interview with T, spoke in terms of wanting "to have … a chat, a talk" (Exhibit 2B, p.2).

[39] Critically, as with R, the key issue was the administration of the cautions, and T's responses. The relevant portions of the interview which I will read into the record at Exhibit 2B p.2 line 38, p.4 line 48.

"Senior Constable HN: Okay, T, I want to have - have a chat to you, a talk to you, about um a thing that happened about a week ago … over here.

T: Yeah.

Senior Constable HN: Do you know what I'm talking about there?

T: Yeah.

Senior Constable HN: Okay I want to do it using these, using these tapes you see I, I, you saw me put three tapes in there.

T: Yeah.

Senior Constable HN: And also a video camera over here.

T: Yeah.

Senior Constable HN: See that there, with that, I'm going to use those as part of the interview okay just what, when I'm asking you questions all right.

T: Yeah.

Senior Constable HN: Before I do anything I've just got to give you a caution. I'll just get ya, ask, ask you to listen to this please, T. Before I ask you any further questions I must tell you that you have the right to remain silent. This means you do not have to say anything or answer any questions or make any statement unless you wish to do so. However if you do say something or make any statement it may later be used as evidence. Do you understand this warning?

T: Yeah.

Senior Constable HN: Do you know what that means?

T: Yeah.

Senior Constable HN: You tell me what it means.

T: It means like I'm guilty.

RF: No.

Senior Constable HN: No hey, T, what it means is um you don't have to talk to police if you don't want to okay um if I ask you a question and you don't want to answer it you don't have to.

T: Yeah.

Senior Constable HN: Okay so police can't make you talk if you don't want to talk, it's entir -, it's mate up to you whether you want to talk to police okay.

T: Yeah.

Senior Constable HN: All right you happy with that RF?

RF: Yeah and it's the last part that I explained it to him that in evidence.

Senior Constable HN: Mm-hmm.

RF: Which means that it will be in Court.

Senior Constable HN: Yeah.

RF: Admissible in Court, so you know that now.

T: Got it.

RF: Mm.

Senior Constable HN: Okay you have the right to telephone or speak to a friend or relative to inform that person where you are and to ask him or her to be present during questioning. You also have the right.

You also have the right to telephone or speak to a lawyer of your choice, to inform that person where you are, to arrange or attempt to arrange for that person's lawyer to be present during questioning. If you want to telephone or speak to any of these person's, questioning will be delayed for a reasonable time for that purpose. Is there anyone you wish to talk to? [At this stage, I observed on the video that there was no appreciable non-verbal response by T.] T, RF she's here to assist you in the interview.

T: Mm.

Senior Constable HN: Or to sit with you in the interview as us as support.

T: Yeah. talk to or anyone else you want to be, be here at the moment.

T: Nah.

Senior Constable HN: No you, you're happy for RF to be here?

T: Yeah.

Senior Constable HN: Okay. All right as I said T we're gonna use these tapes here umm so what I'll ask you to do, if, if you do ask us any question I'll just get you to umm to say yes or no.

T: Yeah.

Senior Constable HN: Rather than shake your head or nod you're cause obviously if you shake your head, we can't hear it on the tape.

T: Yeah.

Senior Constable HN: Okay also make sure you're not taking an fac-, your hands upper and your face or round your mouth mate so they - cause then we can't hear what actually being saying. It's all muffled okay if there's anything that you don't understand or as-, if I use a word that you don't understand just ask, just say I don't understand that word.

T: Yeah.
Senior Constable HN: And I'll change it for you okay.
T: Yeah."

CONCLUSIONS IN RESPECT OF T INTERVIEW

[40] T (like R) was also subject of cumulative disadvantages,

some obvious, some not so obvious, including:-

(a) he was clearly an Aboriginal man;
(b) he was living in (and had grown up) a remote community;
(c) he was very young (although an adult in Queensland
criminal justice terms);
(d) he was verbally and intellectually impaired (Exhibit 6)
although he could read and write (Exhibit 2B p.5);
(e) he was from a disadvantaged background (Exhibit 6).

[41] As with R, Senior Constable HN in his preliminary remarks used the terms "talk" and "chat" - again a clear dimunition of the importance of a formal record of interview with a suspect facing the prospect of charges carrying a maximum penalty of life imprisonment (see Siddon v. State of Western Australia [2008] WASC 100, paras 19 and 20).

[42] I repeat, for the sake of clarity, the observations I made in respect of RF in relation to the record of interview of R. With all due respect to RF, she does not appear to have adequately performed the role of support person in this interview. She was not supplied with the required documentation in respect of her role (Police Powers And Responsibilities, Regulation Schedule 10 (Responsibilities Code) is 44A(1)(a)). RF is clearly an authority figure on Morning Island (Police Powers And Responsibilites Act s 428(3)(e), and was the complainant in respect of unrelated charges relating to a co-defendant of T. RF, although holding a position as an Aboriginal Legal Aid field officer, is not legally qualified, and had no recollection of the relevant interview. Her extensive experience as a support person does not indicate that she adequately carried out her role on this occasion.

[43] In particular, it is clear that RF has failed to adequately explain to T that he had a free choice whether or not to speak, at all, to Senior Constable HN. This is particularly relevant given that at the relevant time, T had been arrested and was in custody and had been for some hours. RF also clearly failed to adequately explain to T that if he did speak with Senior Constable HN, he (T) would (given the party provisions of the criminal Code) in all likelihood be providing incriminating evidence against himself in respect of offences carrying a maximum penalty of life imprisonment. As I observed in respect of R’s interview, any competent criminal defence lawyer would no doubt have advised the defendant to decline to take part in the record of interview, although would have been obliged to follow the defendant's instructions had he chosen in the free exercise of his will to take part in the record of interview.

[44] As with R, the administration of the cautions by Senior Constable HN was by rote. For example, when asked if there was anyone T wished to talk to (Exhibit 2B p.4), Senior Constable HN gave T no opportunity to reply, and again it was Senior Constable HN who effectively answered his own question by indicating that he had arranged for RF to be present (Exhibit 2B p.4).

[45] Critically, when asked whether he understood the warning in respect of the right to silence, T said, "Yeah". In respect of this interview, Senior Constable HN did ask T to explain his understanding. That I note was in contrast to his actions in respect of R. T in reply said, "It means like I'm guilty". RF interposed (briefly), and Senior Constable HN then said, "It means … if I ask you a question and you don't want to answer it, you don't have". T replied, "Yeah" but it was RF who was asked by Senior Constable HN if she was "happy" with that explanation.

[46] RF went on to say in the interview, "Yeah and it's the last part that I explained it to him that in evidence … which means it'll be in Court … admissible in Court, so you know that now". I note that the quoted transcript reflects my interpretation of that relevant interview and there is a series of amendments that I've made to the transcript which are reflected in the difference between Exhibit 2A and Exhibit 2B, and similarly with Exhibit 1A and Exhibit 1B. T replied, "Got it". There was no further attempt to have T satisfactorily, "explain the meaning of the caution in his … words" (Police Powers and Responsibilities Regulation Schedule 10 (Responsibilities) s 37(2)), in such a manner that it would be clear that T understood his right to silence.

[47] I certainly indicate that I was unable to conclude from RF's remarks exactly what her advice was and I was certainly not satisfied that T could or did understand his right to silence. Again, the matter could have been clarified easily had Senior Constable HN, who assisted, in seeking to have T, in his own words, state his understanding of his right to silence and his agreement (if he chose to do so) to continue with the record of interview.

[48] I therefore reached the same conclusions that I reached in respect of the interview with R but I will for the sake of clarity, repeat (with appropriate changes) the conclusions that I reached in respect of R.

[49] I conclude that the interview between Senior Constable HN and T has not been shown to have been made voluntarily, that is, made in the exercise of a free choice to speak or remain silent. As McKechnie J noted in similar circumstances in Siddon v. The State of Western Australia [2008] WASC 100, para 24, he (McKechnie J) was, "left with the impression [having viewed the video of the disputed police interview] that only lip service was paid to the need to ensure that the accused understood his right to answer questions."

[50] McKechnie J's observations are specifically apposite to the interview with T, as they were to the interview with R. This issue is, of course, even more critical in respect of T, because he had been under arrest and in custody for a period in excess of three hours and did not on the evidence before me, ever receive any adequate explanation which he understood to enable him to voluntarily exercise his free choice to speak or remain silent.

[51] It is, again, a trite observation but I repeat it, that had Senior Constable HN followed his legislative and operational procedural obligations and received a reply which indicated clearly that T did understand his right to silence and then chose to speak then the interview would have been admissible.

[52] The prosecution have failed to persuade me, on balance, that the interview with T was made voluntarily, and the interview is excluded from evidence at the trial of T on this indictment. Again, although strictly it is unnecessary to proceed to consider the unfairness discretion, on which the onus rests on the defence, I would for the following reasons have concluded that it would be unfair to use the interview against T and I would have excluded it from evidence for the following reasons:

(a) the lack of understanding of the right to silence by the defendant T and the failure of Senior Constable HN to elucidate (particularly in the face of a clear indication of a lack of understanding) whether the defendant T did understand his right to silence.

(b) The impaired intellectual and verbal functioning of the defendant, who came from a disadvantaged background, and was a long time resident of a remote indigenous community.

(c) The failure of RF to provide any adequate "support"
in her role as a support person.

(d) The clear breach by Senior Constable HN of his legislative obligations, which therefore failed to ensure that T’s interests (as with R’s interests) were protected.

Observations

[53] Although strictly unnecessary in terms of my rulings in respect of these two matters, it is perhaps appropriate at this point to observe briefly that the legislative and procedural obligations on police officers when dealing with suspects are fundamental obligations. Those obligations are intended to ensure that police accept the responsibilities that go with the extensive powers that they are entitled to exercise under the Police Powers and Responsibilities Act and associated regulations.

[54] The obligations operate prospectively - in short, every time a police officer deals with a suspect, he or she is liable to have their actions and legislative and operational compliance examined with a fine forensic tooth comb at some time in the future. I note that today we are examining actions that took place more than two years ago. Rigid legislative and procedural obligation compliance ensures that the prospect of any inculpatory evidence that is obtained is admissible on trial is, of course, an excellent prospect.

[55] Conversely, failure to comply with those relevant obligations leads inexorably to contested hearings such as these, which occupy significant judicial time and no doubt, directly or indirectly, place a heavy burden on the public purse, and lead of course, also to the very real prospect of the exclusion of otherwise inculpatory evidence.

[56] It may be useful for these observations to be brought to the attention of the Director of Public Prosecutions, Mr Moynihan SC, and the Police Commissioner, Mr Atkinson, given what appears on the face of it from these two applications at least, to be a lack of adequate police training in respect of the legislative and operational obligations of the police officer who conducted both interviews.

[57] Whether that reflects systemic issues is obviously a matter that should be examined carefully by the Police Commissioner perhaps with the advice of the Director of Public Prosecutions, given the feedback he no doubt receives in respect of applications such as these throughout the State.