The King v Fred

[2024] NTSC 78

CITATION:	The King v Fred [2024] NTSC 78
PARTIES:	THE KING
v
FRED, Tamsley
TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:	SUPREME COURT exercising Territory jurisdiction
FILE NO:	22336567
DELIVERED ON:	17 September 2024
HEARING DATE:	2 September 2024
JUDGMENT OF:	Brownhill J
CATCHWORDS:

EVIDENCE – Criminal proceedings – Admissibility of admissions made by the accused – Whether admissions should be excluded pursuant to ss 138, 90 and 137 of the Evidence (National Uniform Legislation) Act – Admissions

are admissible at trial.

Whether admissions were improperly obtained or obtained in consequence

of an impropriety – Whether the alleged non-compliance with Police spontaneously and voluntarily – Admissions are not evidence obtained

improperly nor in consequence of an impropriety.

Whether admissions had probative value – Admissions went to the accused’s state of mind and related to a fact in issue – Admissions had probative value – Unnecessary to conduct ‘balancing exercise’ required by s 138(1).

Discretion to exclude admissions pursuant to s 90 – Whether there was
unfairness to the accused – The admissions were spontaneous and voluntary
– Unfairness addressed by not providing body worn footage to the Jury –
Admissions are admissible.

Em v The Queen (2007) 232 CLR 67, The King v Woods [2023] NTSC 21, The Queen v Bonson [2019] NTSC 22, The Queen v Layt [2018] NTSC 36 referred to.

Evidence (National Uniform Legislation) Act 2011 (NT) ss 81, 85, 90, 137,

138.

Police General Order Q1: Questioning and investigations

Police General Order Q2: Questioning people who have difficulties with the

English Language – The “Anunga” guidelines.

REPRESENTATION:

Counsel:

Crown:	S Ledek
Accused:	S Ozolins

Solicitors:

Crown:	Office of the Director of Public Prosecutions
Accused:	Northern Territory Legal Aid Commission

Judgment category classification: C

Judgment ID Number:	Bro2408
Number of pages:	27

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA

AT DARWIN

The King v Fred [2024] NTSC 78

No. 22336567

BETWEEN:

THE KING

Crown

AND:

TAMSLEY FRED

Accused

CORAM: BROWNHILL J

REASONS FOR JUDGMENT

(Delivered 17 September 2024)

1. The accused was charged with having sexual intercourse with the

   complainant without her consent, contrary to s 192(3) of the Criminal

   Code. The offence was alleged to have occurred on 9 November 2023.[1]

2. The Crown sought to rely on certain admissions made by the accused

   after being taken into Police custody. The Defence argued the

   admissions were inadmissible or should be excluded under various

   provisions of the Evidence (National Uniform Legislation) Act 2011

   (NT) (‘ENULA’).

3. On 2 September 2024, I ruled that the admissions were admissible and

   not to be excluded. I indicated that I would publish my reasons in due

   course. These are my reasons.

   Crown case

4. The Crown case is that the complainant and the accused met on a

   dating application in or about October 2023. The accused was a ‘fly in

   fly out’ worker who lived in Queensland, but came to Darwin roughly

   every two weeks for a two week work shift. The accused and the

   complainant had been communicating via the dating application, and

   later via text messages, for a few weeks. They went on a first date and

   continued to communicate via text messages thereafter. During the text

   exchanges, the complainant made clear to the accused that she wished

   to be married before living together or having children, and said she

   would like to get to know the accused better. By contrast, the accused

   often suggested romance, physical intimacy and proposed that the

   complainant should stay overnight with him when they next met in

   person. They agreed to go on a second date on 9 November 2023. The

   day before the second date, the complainant sent a text message to the

   accused saying that sex or living together before marriage was a non-

   negotiable option for her and maybe she and the accused were just

   looking for different things.

5. At around 6.30pm on 9 November 2023, the complainant and accused

   met in the city for their second date. They walked around the

   Esplanade and went to a restaurant for dinner. After dinner they walked

   to the accused’s hotel room on the Esplanade. Neither had consumed

   any alcohol. Inside the room, they sat down and drank some water. The

   accused stood up and leant towards the complainant, kissing her on the

   lips. She kissed him back. He then pulled her up to stand facing him

   and put his arms around her back, pinning her body to his. He pulled

   her shirt up and she pulled it down. She asked him to walk her back to

   her car, which was parked across the road from the hotel. He said

   words to the effect of: ‘Come on, it’s just a hug’. He kissed her quite

   forcibly. She repeated several times: ‘No, I don’t want this, let’s go,

   walk me to the car’. The accused put the complainant’s hand inside his

   shorts and underwear onto his penis and told her to fiddle with him. He

   thrust his hips against the complainant and her hand. She felt frozen

   with shock. He pulled down her shorts and underwear and she pulled

   them back up. He pulled them down again and she pulled them up. He

   pulled them down again and removed them from her. He sat her down

   on the bed by putting his hand on her shoulder. He put his hands under

   her thighs and lifted her further up towards the centre of the bed. She

   was lying on her back. He took off his clothes and inserted his penis

   into her vagina. The intercourse continued for around 20 minutes, with

   him kissing her on the mouth while her mouth was shut. During this

   time, she said to him ‘no’ and ‘I want to go home’ and sat up. He said

   words to the effect of: ‘Just let me finish’, pushed her back down on

   the bed and continued having sex with her until he ejaculated. He went

   to the bathroom. The complainant got dressed, grabbed her things and

   left the hotel room. She walked to her car and drove home past the

   Nightcliff Police Station, which was not open. She went from her home

   to the Emergency Department at the hospital, reporting that she had

   been raped.

6. After she left the hotel room and as she drove, the accused called her

   several times and she did not answer. He sent her several text messages

   asking where she was and saying he was looking for her. She replied

   saying: ‘You knew I was angry and didn’t want to have sex with you at

   all. Why did you force yourself on me?’ and ‘I said no multiple times

   and yet you continued. Why?’

7. The accused responded asking why the complainant was angry, that it

   all started with a good kiss, and he wanted to have a relationship with

   her. He also said: ‘Am sorry but we were already there and I just had to

   finish. Am sorry if I didn’t make u enjoy. We can be better next time.’

   Lead up to the arrest

8. The following day, the complainant was examined at the Sexual

   Assault Referral Centre and gave a recorded interview to Police. She

   gave a physical description of the accused, including of some tattoos he had on his arms. She told Police what limited information she had

   about the accused, including that he was originally from Papua New

   Guinea and was a fly in fly out worker who worked in a mine in the

   Northern Territory as an engineer, that he lived in Queensland and was

   flying back to Queensland at 6.30pm that day.

9. Police made various efforts to identify the accused as the complainant

   did not know his full name. They had a photograph of him which the

   complainant had on her phone. Police went to the airport to apprehend

   the accused before he caught the flight.

   Arrest and admissions

10. At 3.25pm, the accused was located by Police detectives sitting outside

    the airport terminal. The accused was arrested by two officers. The

    arrest, and the exchanges between Police and the accused, were

    captured on body worn footage.

[11] The arrest and exchange occurred as follows:

Police:	How are you buddy?
Accused:	Hi. I’m good.
Police:	Just show us your hands, mate, [handcuffs placed
on the accused]. My name’s [name]. This is
[name], from the Northern Territory Police, mate.
I’m just going to inform you, you’re under arrest,
okay? For sexual intercourse without consent.
Accused:	Which one?
Police:	Sexual intercourse without consent. All right? So you were at a hotel, I believe it was last night.
Alright? You don’t have to say anything. Anything
you say or do is being recorded [gestures to body worn camera and accused looks at the camera] and may be used in evidence, okay? Do you
understand what I’m saying?
Accused:	Oh, I cannot...
Police:	Hey, is there anybody you want notified that
you’re with the police today?
Accused:	No.
Police:	Nah? Okay. Alright. You all good?
Accused:	I’m good.
Police:	Okay. Alright. I know it’s scary mate. But
[accused moves to stand] stay sat down for us. Do
you have any questions about what’s going on?
Accused:	I was, I was with my girlfriend. Yeah.

[Accused is asked to provide identification. He does so. He is asked for his name and where he is flying to. He provides that information. Police tell the accused they will take him to the

Watch house in their car, he asks about his luggage, and is told Police will take care of it. Police have a brief discussion about

‘telling AFP’ and retrieving the accused’s luggage.]

Police:	How long have you been in Darwin?
Accused:	Oh, I’ve, um, been here like two months now.
Yeah.
So I, I, we will speak at the station, but I sort of met this girl, ah, we were talking for a bit and then she agreed to go with me, um, to the hotel. Um, and we, we started like making out, making out.
And actually we were having intercourse, um, but she sort of decided at the middle of intercourse that she, she wanted to like get to the car and I just told her I had to finish before we can, we can
go. That’s all I, I, I said to her.

[Other Police arrive and further discussions occur between and he is placed in a paddy wagon.]

1. The accused was then taken to the Watch house and processed into

   custody. At the Watch house, the following exchange occurred:

Police:	So, um, I’m going to inform you that you are under
arrest. You’ve been arrested today for, uh, sexual
intercourse without consent. You don’t have to say
anything. Anything you say or do...
Accused:	[nodding] Mm-hm.
Police:	... is being recorded and may be used in evidence, okay?
Accused:	Okay. Yep.
Police:	Um, so as a right of somebody in custody, you have the uh the right to contact somebody to let
them know you’re with the police today. Is there
anybody we can contact to let them know that you are here?

[Accused asks for family back at home, specifically his mother
in Papua New Guinea, to be contacted. Police advise him that
will be facilitated. Police inform the accused that Police will
be seizing his mobile phone to have it forensically analysed,

and then he can have it back.]

Police:	Okay. Alright. Um, it’s up to you whether you do
or not, are you willing to provide your PIN? It
may speed the process up, but it’s entirely up to
you.
Accused:	Is it, um, with respect to the conversation I had
with the, the one who’s complaining? The
complainant?
Police:	Yes.
Accused:	Yeah, that’s all right.
Police:	Yes. So...
Accused:	We can, we can sort of, um, have a look at it.
Cause it, I don’t think it’s, against their will.
Cause we, on the message, we, we sort of agreed first and she, she actually agreed to like, for us to be together, um, like have a bit of intimacy and all that.
Accused:	Um, and her complaint came after like we’ve,
we’ve been through it and in the mid, mid, mid
during the, um, activity, um, she decided to stop.
So from, from, from my point of view, I don’t see
this being against their will. Um, she was upset about something and she sort of stopped.

[There is a discussion about the PIN code. Accused is offered

a recorded interview, which he accepts. There is further

discussion about the accused’s details and personal situation.]

1. The underlined portions above were the admissions sought to be relied

   on by the Crown.

2. It was not in dispute that those underlined portions were admissible

   pursuant to s 81 of the ENULA as admissions or statements made at the

   same time and reasonably necessary to understand the admissions. Nor

   was it in dispute that those underlined portions were admissible

   pursuant to s 85 of the ENULA because the circumstances in which the

   admissions were made were such as to make it unlikely that the truth of

   the admission was adversely affected.

3. Rather, the Defence argued that the admissions should be excluded

   pursuant to ss 138, 90 and 137 of the ENULA.

   Exclusion of improperly obtained evidence – s 138, ENULA

4. The Defence argued that the admissions were obtained improperly or in

   consequence of an impropriety within s 138 of the ENULA. The basis

   of that argument was essentially because the caution was not

   administered in accordance with Police General Orders , and because in

   the circumstances it was clear the accused may not have understood his

   right to silence.

5. Failure of Police to comply with Police General Orders may have the

   effect that any admissions made by an accused comprise evidence that

   was obtained improperly or in consequence of an impropriety within

   s 138(1) of the ENULA.[2]

   Airport admission

6. Firstly, the Defence argued that Police General Order Q1, item 2.1 had

   not been complied with because the accused was placed in handcuffs

   before he was arrested. Item 2.1 states:

   Prior to arrest, Police have no authority to exercise any restraint whatsoever upon a person being questioned or to detain the person in any way, whether upon police premises or elsewhere, and the person is free to come and go as they please.

7. I do not accept that item 2.1 was not complied with. At the time of the

   arrest, the accused was not ‘a person being questioned’ within the

   meaning of item 2.1. The only question asked of him prior to his arrest

   was ‘how are you?’ and the purpose of the Police approaching him was

   to arrest him and take him into custody, not to question him. In any

   event, the words ‘you’re under arrest’ were stated by the Police officer

   to the accused less than six seconds after a handcuff was placed on his

   wrist, after the officer had introduced himself and the other officer as

   being from the Northern Territory Police, and during the course of the

   handcuffing process.

8. Even if item 2.1 was not complied with (and I do not accept that), I do

   not accept that the non-compliance had, or could have had, any bearing

   at all upon the voluntariness or truthfulness of the admissions made by

   the accused at the airport. The accused’s admission at the airport was

   made more than three minutes after he was placed under arrest. I do not

   accept that a six second delay between the commencement of the

   handcuffing and the words ‘you’re under arrest’ could have had any

   impact upon the accused’s decision to tell Police about what had

   happened with the complainant the night before.

9. Secondly, the Defence argued that the Police did not comply with

   Police General Order Q1, item 3.1 when administering the caution,

   particularly given the accused’s apparent lack of understanding of it.

[22] Item 3.1 states:

A member, before questioning a person who is suspected of committing an offence, should inform the person of the nature of the allegations and caution the person in the following manner:

“I am going to ask you certain questions about [state briefly

nature of inquiry] which will be recorded. You are not
obliged to say anything unless you wish to do so, but

whatever you do say will be recorded and may be given in

evidence. Do you understand that?”

It is not necessary for the caution to be administered verbatim. that the essence of the caution must be conveyed, that is:

(a)	the suspect knows the nature of the allegations;
(b)	the suspect understands that they don’t have to say

anything (they have the right to remain silent);

(c)	the suspect understands that what they say will be recorded;
(d)	the suspect understands that this recording may be used in court.

1. As Reeves J observed in The King v Woods (at [36]),[3] the purpose of a

   caution is, in broad terms, to inform an accused person of three things:

   (i) the existence of their right to silence; (ii) the basic content of that

   right; and (iii) the consequences of waiving that right. An effective

   caution must therefore convey each of these elements.

[24]   The caution administered by Police in this proceeding did essentially

contain the words of the caution in item 3.1 above.

1. Despite that, the Defence argued that in the circumstances, the Police

   should have gone further by confirming that the accused did understand

   each of the elements of the caution. Defence argued that the Police

   should have followed the requirements of Police General Order Q2,

particularly by: (a) in accordance with item 2.2, gathering evidence to
demonstrate whether the accused is entitled to the benefit of the

Anunga Guidelines; and (b) in accordance with item 3.1.3, asking the

accused to explain what is meant by the caution, phrase by phrase.

[26] Police General Order Q2 states:

General Order Q2 – Questioning people who have difficulties with the English language – The ‘Anunga’ Guidelines

...

2.       Persons entitled to the benefit of the Anunga Guidelines

2.1  The guidelines apply to any person being questioned as a
suspect, if that person is not as fluent in English as the
average white person of English descent. Two important
points must be understood by all members:

2.1.1	not only aborigines fall into this category – it
extends to migrants and possibly other groups as well ...

2.2	Investigators must determine, as part of the investigation, whether or not a particular suspect is entitled to the benefit of the guidelines. Evidence must be gathered to demonstrate whether or not a particular suspect is so entitled. Such evidence might include:
2.2.1 the investigator’s observations of, and dealings

and conversation with the suspect;

2.2.2	the suspect’s answers to questions put to the
suspect, ...

3.       The Guidelines

...

3.1.3 Great care should be taken in administering the
caution when the stage has been reached that it is
appropriate to do so. The suspect should be asked
to explain what is meant by the caution, phrase
by phrase.

Questioning should not proceed until it is apparent that the suspect understands the right to remain silent.

...

1. The Defence argued that the requirement to go further than cautioning

   the accused by use of the words set out in Police General Order Q1,

   item 3.1 arose because:

   a. when informed of the charge, the accused said ‘which one?’;

b. when asked if he understood the caution, the accused said ‘oh, I

cannot ...’;

c. when informed of his arrest and cautioned, the accused looked

confused;

d. the accused is a Papua New Guinean national, so English was

not, or may not have been, his first language.

1. After the accused said ‘which one?’, the charge was repeated to him

   and further details were given, namely that it related to him being at a

   hotel the night before. It is more than apparent, from his admission

   given later, that the accused understood the nature of the charge,

   specifically that it related to his having had sex with the complainant

   the night before, and that it related to sex having occurred without her

   consent.

1. It is also clear from the interactions between the accused and the two

   Police officers across the next three minutes before he made the

   admission at the airport (and later at the Watch house) , that the accused

   was ‘as fluent in English as the average white person of English

   descent’ (as per the terms of Police General Order Q2). In those three

   minutes the accused answered questions and followed instructions

   regarding his identification, his transportation and raised with Police

   the retrieval of his luggage.

2. Further, prior to going to the airport to seek the accused, the arresting

   officer had been informed (at around 2pm) of an investigation being

   undertaken by the Sex Crimes Unit, he reviewed the ‘PROMIS job’,

   liaised with members of the Sex Crimes Unit, reviewed ‘Evidence.com’

   and the photo of the accused obtained from the complainant, watched

   CCTV footage obtained from a supermarket attended by the accused

   and the complainant the night before, and was informed by members of

   the Sex Crimes Unit that the complainant had stated that the accused

   was due to fly to Townsville that day because he was a fly in fly out

   mine worker.[4]

3. By the time the arresting officer became involved in the investigation,

   the complainant had completed a recorded interview with Police during

which she disclosed her allegations against the accused, had informed
Police that she had been having communications with the accused by

text messages for a number of weeks prior to 9 November 2023, had

shown the interviewing officer some of those text messages, and had

told the arresting officer that the accused was a mining engineer who

worked with explosives, originally from Papua New Guinea, staying in

north Queensland, working at a mine in the Northern Territory, and

that he socialised with friends with mining connections.

1. I consider it highly likely that, prior to the accused’s arrest, the

   arresting officer had been briefed with those details about the accused

   (or sufficient of them) for him to reasonably form the view that the

   accused was, despite his Papua New Guinean nationality, a person ‘as

   fluent in English as the average white person of English descent ’. This

   view would have been confirmed by his observations of, dealings with,

   and conversations with the accused after the arrest.

2. Consequently, I find that the requirements of Police General Order Q2,

   item 2.2 were complied with and the accused was not a person falling

   within the terms of item 2.1.

3. I do not accept that the accused’s ‘negative’ response to the question

   asking if he understood the caution, and his look of ‘confusion’, were

   any sort of indication that he did not understand it. The response was

   unfinished and appears to me to convey more surprise or shock at being

arrested for sexual intercourse without consent than a failure to
understand the essential elements of the caution, particularly his right

to remain silent. The accused clearly understood that he was being

recorded as he looked directly at the body worn camera when informed

of that.

1. In any event, I do not accept that the accused was ‘a person being

   questioned as a suspect’ within the meaning of Police General Order

   Q2. He was simply a person being arrested. The question which

   preceded the accused’s admission was not a question designed to elicit

   information from him about a suspected offence, it was simply a

   question about his personal circumstances, most probably for the

   purpose of putting him at ease as his transportation was arranged. It

   appears from the absence of any reliance by the Defence on s 139 of

   the ENULA that the Defence accepted that the admissions were not

   made ‘during questioning’ at least within the meaning of that

   provision.

2. I find that the admission made by the accused at the airport was

   spontaneous and entirely voluntary, and not in any way a consequence

   of an impropriety, nor do I find that it was elicited in response to

   official Police questioning. While the accused made the admission after

   being asked how long he had been in Darwin, that question was not

   asked for the purpose of eliciting information about the alleged

   offending and the admission was not responsive to that question. There

   was nothing about the accused’s manner or the words he said to

   suggest that he felt compelled to speak about the allegations. He was

   clearly seeking to inform Police that the complainant had consented to

   the sexual intercourse and his awareness or understanding of that. He

   wished to put to them his side of the story, and elected to do so, in my

   view, fully aware that anything he said or did was being recorded and

   could be used as evidence in court.

3. Consequently, the admission made by the accused at the airpor t was

   not evidence that was obtained improperly or in consequence of an

   impropriety within s 138(1) of the ENULA.

   Watch house admission

4. The Defence repeated the arguments dealt with above in relation to the

   Watch house admission, which was made after the accused was re -

   cautioned in a similar way to the caution at the airport, and which was

   accompanied by the accused nodding and followed by the accused

   giving an affirmative response to the caution (‘okay’).

[39]   The nodding and affirmative response confirm that the accused had

understood the caution at the airport. The Defence submission that this

may have been some form of gratuitous concurrence is rejected. The

accused’s responses to instructions and requests again disclose that he

was a person as fluent in English as the average white person of

English descent. His use of the words ‘complaint’ and ‘complainant’

indicate a good understanding of English. His questions before his
affirmative response to Police requests for the PIN code to his phone

show that he understood himself to be giving permission which he was

not compelled to give. He was not simply concurring without actually

agreeing to what was said to him.

1. Again, I find that the admission made by the accused at the Watch

   house was spontaneous and entirely voluntary, and not in any way a

   consequence of an impropriety or elicited in response to official Police

   questioning. While the accused made the admission after being asked

   for the PIN code to his phone, and the officer confirmed that it was

   being sought in relation to his communications with the complainant,

   he had not been asked anything about those communications. The

   admission was not responsive to any request for information about

   those communications or their presence on his phone. Again, there was

   nothing about the accused’s manner or the words he said to suggest

   that he felt compelled to speak about the allegations. He was clearly

   seeking to put forward his side of the story, and elected to do so, in my

   view, fully aware that anything he said or did was being recorded and

   could be used as evidence in court.

2. For these, and the reasons set out above relating to the airport

   admission, the admission made by the accused at the Watch house was

   not evidence that was obtained improperly or in consequence of an

   impropriety within s 138(1) of the ENULA.

   Desirability and undesirability of admitting the admissions

[42]   The above conclusions make it unnecessary to consider the balancing

exercise required by s 138(1) of the ENULA, and the matters set out in

s 138(2) to be taken into account.

[43] I will deal with this matter only briefly.

1. The Defence argued that the admissions had no probative value

   because they did not establish or make more likely any fact which the

   complainant had not already agreed to in cross-examination about the

   complainant wanting to go to her car in the middle of sexual

   intercourse, the accused saying he wanted to finish the intercourse

   first, and the sexual intercourse resuming without any protest or overt

   act from her to indicate that she did not consent thereafter. It was said

   that, by virtue of her agreement to them in cross-examination, these

   facts were not in dispute.

2. I reject the submission that the admissions had no probative value.

3. There were no agreed facts to the effect asserted by the Defence. There

   was no indication by way of the Defence opening address that these

   facts were not in issue (as opening addresses had not, at the time of the

   voir dire, been made). There was no confirmed intention by Defence to

   expressly inform the jury that these facts were not in issue. Instead, it was essentially argued that the jury would find these facts on the basis

   of the complainant’s agreement to them in cross-examination.

[47]   The difficulty with that submission is that the complainant’s evidence-

in-chief (by way of her recorded statement) was that the sex with the

accused was, from the outset, without her consent. Further, she did not,

at any time, agree with the proposition that when the sex resumed after

the accused said he wanted to finish the intercourse, it resumed with

her consent. Furthermore, the accused’s state of mind in relation to the

complainant’s consent to the whole of the sexual intercourse was in

issue.

1. The fact that the accused told Police that the complainant agreed to

   ‘intimacy’, that during the sexual intercourse, the complainant wanted

   to go to her car, was upset about something and stopped the

   intercourse, and that he told her he had to finish the intercourse, so in

   his mind the sex was not against her will, must rationally affect the

   assessment of the probability that: (a) these things happened; and (b)

   the accused was aware of a substantial risk that the complainant was

   not consenting and took that risk, or that he did not give any thought to

   whether or not she was consenting. As to (a), even if the admissions

   are consistent with the complainant’s evidence in cross-examination,

   that would make those facts more likely. As to (b), both what the

   accused said and the way that he said it in the admissions would clearly

have significant probative value in the jury’s determination about his
state of mind regarding the complainant’s consent to the sexual

intercourse.

1. For these reasons, I reject the Defence submission that the admissions

   had no, or very little, probative value (s 138(3)(a)).

2. I also consider that the admissions were important evidence in the

   proceeding (s 138(3)(b)) because they were direct evidence from the

   accused about his state of mind, and the accused may or may not have

   elected to give evidence in the trial.

3. Given that there was no suggestion that the impropriety asserted by the

   Defence was considerably grave (s 138(3)(d)) or deliberate

   (s 138(3)(e)), the probative value of the admissions would have

   weighed very heavily in favour of admitting them over the

   undesirability of admitting evidence obtained in the way that it was.

   Discretion to exclude admissions – ss 90, 137, ENULA

4. The Defence argued that the admissions should be excluded pursuant to

   s 90 of the ENULA which provides that in a criminal proceeding, the

   court may refuse to admit evidence of an admission if the evidence is

   adduced by the prosecution and, having regard to the circumstances in

   which the admission was made, it would be unfair to an accused to use

   the evidence.

[53]   That question of unfairness 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

accused would be unfair, that is, s 90 focusses upon the fairness of

using the evidence at trial.[5]

1. This is a distinct question from the reliability of the admissions, which

   is the province of s 85 of the ENULA, and the lawfulness and propriety

   of the Police conduct, which is the province of s 138 of the ENULA.[6]

2. I have already found that the admissions were spontaneous and not

   elicited in response to official Police questioning. I note that, in The

   Queen v Layt [2018] NTSC 36, Grant CJ observed (at [50]) that

   generally speaking, where an accused spontaneously makes an

   admission to Police in circumstances where the admission is not

   elicited in response to official Police questioning, a court will not

   exclude an unrecorded admission,[7] and similar considerations arise

   where the admission is recorded. I agree with that observation.

3. The Defence argued that the use of the evidence at trial would be

   unfair to the accused within s 90 of the ENULA because the conduct of

   the Police brought about an unreliable admission because it presented

an incomplete representation of the way the sexual intercourse between
the complainant and the accused took place. Specifically, it omitted

anything about what happened after the accused said he wanted to

finish the intercourse.

1. Accepting, without deciding, that this kind of argument falls to be

   determined under s 90 rather than ss 85 or 138 of the ENULA, I do not

   accept that there was some incompleteness which made the admissions

   unreliable. The context of the admissions is clear and occurred after the

   accused was arrested for sexual intercourse with the complainant

   without her consent. The accused sought to inform Police about why

   the sex was consensual and why he believed it to be so. If the

   admissions are incomplete in that regard, which is doubtful, that is

   because the accused did not give a complete version of events, and is

   not a consequence of anything done by Police to cut his story short.

   The complainant was cross-examined about what occurred both before

   and after the accused said he wanted to finish the intercourse. The

   accused could give evidence about these matters at trial for exculpatory

   purposes if he elected to do so.

[58]   Secondly, the Defence argued that had the Police administered the

cautions differently and in the way contemplated by Police General

Order Q2, item 3.1.3 (with the suspect being asked to explain what is

meant by the caution, phrase by phrase), he may not have made any

admissions at all, or may have made them differently. The only basis

for that submission is that prior to receiving legal advice, the accused
was prepared to give a recorded interview with Police and, after

receiving legal advice, he declined to do so.

1. Reliance was placed on the observations of three members of the High

   Court in The Queen v Swaffield (1998) 192 CLR 159 (at [54]) where

   Toohey, Gaudron and Gummow JJ observed that, while unreliability

   may be a touchstone of unfairness, it has been said not to be the sole

   touchstone, and it may be that no confession might have been made at

   all had the police investigation been properly conducted. In so saying,

   their Honours cited two earlier observations of members of the High

   Court.

2. The first was in Van der Meer v The Queen (1988) 62 ALJR 656 at 662

   where Mason CJ found that the police conduct of the interrogation of

   the applicants in that case was such to make it unfair to use their

   admissions against them and, had the police observed the principles

   governing the interrogation of suspects, it might well have transpired

   that the statements would not have been made or not made in the form

   in which they were (which was initially to deny and then increasingly

   to admit to involvement in the offending). Mason CJ observed that

   after the investigation reached the accusatory stage when the Police

   should have given them a caution and dealt with them as suspects,

   Police in the course of a very lengthy interrogation proceeded to induce

   the applicants to answer questions by various expedients, such as

attempting to break down the denials of each by reference to
contradictory statements made by the others, which tactics culminated

in the confrontation of one of the applicant’s by the complainants, and

all the while the applicants’ remained at the police station in

circumstances which to them must have seemed compelling and their

detention was unlawful.

1. The second was in Duke v The Queen (1989) 180 CLR 508 at 513

   where Brennan J observed as follows:

   The unfairness against which an exercise of the discretion is intended to protect an accused may arise not only because the conduct of the preceding investigation has produced a confession which is unreliable but because no confession might have been made if the investigation had been properly conducted. If, by reason of the manner of the investigation, it is unfair to admit evidence of the confession, whether because the reliability of the confession has been made suspect or for any other reason, that evidence should be excluded. Trickery, misrepresentation, omission to inquire into material facts lest they be exculpatory, cross-examination going beyond the clarification of information voluntarily given, or detaining a suspect or keeping him in

   isolation without lawful justification – to name but some
   improprieties – may justify rejection of evidence of a confession if

   the impropriety had some material effect on the confessionalist, albeit the confession is reliable and was apparently made in the exercise of a free choice to speak or be silent.

2. By comparison with those cases, there is absolutely nothing to suggest

   that the conduct of the Police towards the accused gave rise to

   admissions which would not otherwise have been made or made in the

   form that they were.

3. Thirdly, the Defence argued that the body worn footage depicting the

   accused making the admissions was highly prejudicial, showing him in

   handcuffs with numerous Police coming and going, and showing the

   conversations between Police about his transportation, informing the

   ‘AFP’ and so on, and in the Watch house with other prisoners and

   Police present.

4. In acknowledgment of the capacity of the body worn footage to

   prejudice the jury’s perception of the accused and render the use of the

   footage unfair to the accused, the Crown elected to provide evidence of

   the admissions to the jury in the form of a transcript, rather than in the

   form of video footage, with almost all of the extraneous exchanges

   between the accused and Police (including the arrest and cautions)

   removed.

5. On that approach, the only real potential unfairness within s 90 of the

   ENULA, of the use of the admissions by the Crown, was removed.

6. Likewise, this course also removed the only potential danger of unfair

   prejudice to the accused within s 137 of the ENULA. Consequently, the

   probative value of the admissions was not outweighed by that danger.

7. Consequently, evidence of the admissions (in the written form the

   Crown proposed to elicit it) is not rendered inadmissible by operation

   of ss 90 and/or 137 of the ENULA.

   Disposition

8. For the above reasons, on 2 September 2024, I ruled that the

   admissions were admissible at the trial.

   -------------------------------------

[1] Criminal Code Criminal Justice Legislation
Amendment (Sexual Offences) Act 2023 (NT), which commenced operation on 25 March 2024. By

This was prior to the amendments to the made by the committed on or before that date, and the offence provisions as in force before that date continue to apply in relation to offences committed before that date.

[2]          See The Queen v Bonson [2019] NTSC 22 at [41]-[50], [56] per Hiley J and the authorities there cited; The King v Woods [2023] NTSC 21 at [39] per Reeves J, citing Bonson.

[3]          The King v Woods [2023] NTSC 21 at [36].

[4]          Statutory Declaration of Constable First Class Christopher Smith, 10 November 2023.

[5]          See Em v The Queen (2007) 232 CLR 67 at [107] per Gummow and Hayne JJ.

[6] Ibid at [109], [112], [121]

[7]          Citing Bullock [2005] NSWSC 825.