The King v Woods
[2023] NTSC 21
•7 March 2023
CITATION: The King v Woods [2023] NTSC 21
PARTIES: THE KING
v
WOODS, Samantha
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:22129578
DELIVERED: 7 March 2023
HEARING DATE: 1 December 2022
JUDGMENT OF: Reeves J
CATCHWORDS:
EVIDENCE - Criminal proceedings - improperly or illegally obtained evidence - exclusion of evidence - discretion to admit
Whether evidence of admissions made to police inadmissible - where admitted improprieties in caution given to accused - where multiple failures to comply with Police General Order Q2 and Anunga guidelines - where accused heavily intoxicated and suffering from medical conditions - whether admitting admissions would inappropriately condone police improprieties - whether admitting admissions would undermine confidence in the administration of criminal justice
Whether preconditions in s 85(1) of the Evidence (National Uniform Legislation) Act (NT) met - whether admitting admissions would cause tactical advantage unfairness under s 90 of the Evidence (National Uniform Legislation) Act (NT)
Where admitted non-compliance with s 142 of the Police Administration Act - discretion to admitted admissions under s 143 of the Police Administration Act - where admissions made spontaneously after caution and not during official questioning - rulings made
Criminal Code Act 1983 (NT) s 243(1)
Evidence (National Uniform Legislation) Act (NT) ss 85, 90, 138, 139, 142
Police Administration Act (NT) s 142, 143Bullock [2005] NSWSC 825; Dumoo v Garner (1998) 7 NTLR 129; EM v R (2007) 232 CLR 67; Gedeon v R [2013] NSWCCA 257; Kadir v The Queen; Grech v The Queen [2020] HCA 1; Mole v Prior [2016] NTCA 2; MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR; Parker v Comptroller-General of Customs (2009) 83 ALJR 494; R v Bonson [2019] NTSC 22; R v Deng [2001] NSWCCA 153; R v Gallagher [2015] NSWCCA 228; R v GP [2015] NTSC 53; R v Jabarula (1984) 11 A Crim R 131; R v Jennings [2020] NTSC 71; R v Nelson [2004] NSWCCA 231; R v Swaffield (1998) 192 CLR 159; Ridgeway v R (1995) 184 CLR 19; The Queen v BM [2015] NTSC 73.
International Covenant on Civil and Political Rights.
Police General Order Q2: Questioning People Who Have Difficulties with the English Language – the “Anunga” Guidelines.REPRESENTATION:
Counsel:
Crown:S Lapinski, T Gooley
Accused:G Chipkin with C Porter
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:Territory Criminal Lawyers
Judgment category classification: B
Judgment ID Number: Ree2301
Number of pages: 37
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGSThe King v Woods [2023] NTSC 21
No. 22129578
BETWEEN:
THE KING
AND:
SAMANTHA WOODS
CORAM: REEVES J
REASONS FOR RULING
(Delivered 7 March 2023)
Introduction
Relying on ss 85, 90 and 138(1) of the Evidence (National Uniform Legislation) Act (NT) (‘ENULA’) and s 142 of the Police Administration Act (NT) (‘PAA’), the accused, Samantha Woods, has objected to the Crown tendering as evidence at her trial, certain admissions that she made to three police officers during conversations she variously had with them in Alice Springs in April and June 2021.
This ruling concerns those objections.
Factual Background
The accused is charged that, on 16 April 2021 at Alice Springs in the Northern Territory of Australia, she caused damage to a conveyance by using fire, contrary to section 243 (1) of the Criminal Code 1983 (NT).
That charge arises out of an incident that occurred on the evening of 16 April 2021, when she allegedly used a lighter to set fire to a Holden Commodore station wagon owned by her ex-partner, Mr Brian Choolum, while it was parked at 12 Nicker Crescent, Alice Springs.
At approximately 10:50 pm on the same day, the accused voluntarily attended the main reception area of the Alice Springs Police Station and said to Constable Raatz, who was on duty at the front counter, “I am here to report myself that I set my lighter to a station wagon”.
A short time later, Senior Constable Sharp, who had been tasked by the Watch Commander to speak to the accused, entered the reception area. At that time Senior Constable Sharp and the accused were known to each other because she was ordinarily resident at Yuendumu and he had met her when he was previously stationed at that community.
Senior Constable Sharp introduced himself to the accused and proceeded to have a conversation with her. Almost immediately she said that she had come to the police station “because she set the car on fire”. A short time later, Senior Constable Sharp activated his body worn camera. During the conversation which ensued, the accused made several admissions concerning the circumstances in which she had set fire to the car.
At the time of their conversation, Senior Constable Sharp was aware from his dealings with the accused at Yuendumu that she suffered from a medical condition as a result of which a stent had been surgically embedded in her brain. He was also aware that the adverse effects of the accused’s medical condition were exacerbated if she consumed alcohol. Consequently, early in their conversation, Senior Constable Sharp confirmed with the accused that she still suffered from that medical condition and that she had consumed alcohol that night. At about that point in the conversation, the accused told him that she was “paining in her brain” and that she had pain “across both eyes and (in her) chest”.
Having obtained this information, Senior Constable Sharp asked the accused if she would like him to order an ambulance to take her to hospital. When she responded that she would, he arranged for an ambulance to attend the Police Station. However, because there was a significant delay in it attending, he ultimately drove the accused to the Alice Springs Hospital himself.
The accused was seen at the Alice Springs Hospital Emergency Department at about 12:50 am. The nursing notes of her attendance record: “altercation w/ unknown assailant tonight, reports punched to head & chest. PMHX + VP shunt – pls see alerts. O/E headache, alert but ++ ETOH w/ BAL 0.308, obs NAD, under stressed”. She was seen by a doctor at about 2.00 am after which she was recorded as having “left at own risk”.
The accused was arrested on the present charge on 8 June 2021. On that day Constable Hendriks was on duty at the Alice Springs Watchhouse when the accused was received into custody there. He cautioned her and offered her the opportunity to participate in an Electronic Record of Interview regarding the incident to which the present charge relates. In response he recorded her as stating that “she had set the car on fire, but did not want to do an interview”.
The admissions
Evidence was taken at a voir dire hearing in Alice Springs on 1 December 2022. At the conclusion of that hearing the accused was ordered to file an amended notice of objection identifying the parts of the evidence which were said to constitute the admissions to which she objected. In her amended notice of objection she did that by reference to the statutory declarations that had been made by the three police officers concerned and a transcript of the recording on Senior Constable Sharp’s body worn camera. Those admissions appear in bold font below:
(a)Constable Raatz, statutory declaration dated 5 May 2021, when the accused attended the front counter of the Alice Springs Police Station:
3. Woods told me her name was Samantha Woods and that she was there to report herself. She said to me “my name is Samantha Woods, I am here to report myself that I set my lighter to a station wagon”. There was further said however I am unable to recall what Woods said.
(b) Senior Constable Sharp, statutory declaration dated 17 April 2021:
(i)When he first approached the accused in the reception area of the Alice Springs Police Station:
8. Woods recognised me and started telling me that she came to the police station because she set the car on fire.
(ii)Immediately after he activated his body worn camera:
13. I said to Woods that I was speaking to her in relation to the car fire in Nicker Crescent.
14. Woods said:
- she set it on fire- Lenisha Woods was her daughter
- She took off with my money - $200.
(iii) After confirming that the accused had a medical condition and had consumed alcohol that night:
18. Woods then changed the conversation and stated she came to the police station because she wanted to be honest and say what she had done.
(iv) After the accused confirmed that she would like an ambulance to be called:
32.I commented to Woods that she usually looks after herself at Yuendumu which she acknowledged and said “yes but I got upset”.
33.I asked Woods if the vehicle belonged to Lenisha Woods.
34.Woods replied “It’s Brian’s car, my partner, Brian Choolum”.
35.I asked Woods, “Where’s Brian?”
36.Woods replied, “We got divorced, he’s back out Stirling”.
37.I asked Woods if he was going to be annoyed. Woods nodded her head.
38.I asked Woods “so it’s not as if it was Lenisha’s car then?”
39.I asked Woods if the car was her car or one that she uses.
40.Woods replied “I bought that car for $10,500.00”.
41.I asked Woods to confirm that she got upset with Lenisha and then set her own car alight because she was angry at her for taking the money.
42.Woods kept nodding her head.
43.I asked Woods “What did you use to light the car?”
44.Woods replied “A cigarette lighter”.
45.I said to Woods “It’s pretty hard to light it with a cigarette lighter so tell me what you did?”
46.Woods replied “I lit paper and put it on the passenger seat”.
47.I asked Woods if she stayed there for a little while or came straight to the police station.
48.Woods replied “At least I took everything out of the car” and then something I couldn’t decipher.
49.I asked Woods “Where was it parked?”
50.Woods replied “Nicker Crescent, where it got burned”.
51.Woods stated she was still paining and I confirmed with Tocknell to arrange for an Ambulance to attend the front counter.
52.I said to Woods “This isn’t like you to do this”.
53.Woods replied “I got upset with her, she took off with my money”.
54.I asked Woods “So that was what you thought was the best way of dealing with it, to get rid of your frustration by the way your daughter treated you?”
55.Woods nodded and became upset.
56.I asked Woods how long she had been in Alice.
57.Woods replied for a month. She got more upset and said since she got divorced from Brian. She said she was going to Court for when Brian tried to run her over with the car.
(v)While waiting for the ambulance to arrive
60.At 0013hrs on the 17th of April 2021 while still waiting for the Ambulance inside the front counter of the police station, I asked Woods if she could produce for me the lighter that she used to light the vehicle on fire.
61.Woods removed a lighter from her right pocket and placed it in an exhibit bag for me.
(c)The transcript of the recording contained on Senior Constable Sharp’s body worn camera (exhibit B) corresponding to the points in the conversation set out above:
(i)Nil;
(ii) Immediately after he activated his body worn camera
JS/ I know you from Yuendumu and you know me, I am John Sharp and I know you as Samantha Woods and you have supplied your ID, DOB: 30/9/1985. Now it is to do with the car fire at Nicker Crescent hey?
SW/ I did light it, using the light.
JS/ that is with your daughter?
SW/ Lenisha Woods, my daughter. She took off with my money.
JS/ How much money
SW/ $200
JS/ Royalty or normal money
SW/ My money and I got 11.50 cash(iii) After confirming that the accused had a medical condition and had consumed alcohol that night:
SW/ Mix with coke – that is why I come here to be honest and I told that I light that car
………….
JS/ Since the incident at Nicker or before?
SW/ Before
…………(iv) After the accused confirmed that she would like an ambulance to be called:
JS/ Usually look after yourself at Yuendumu
SW/ But got upset
JS / Her car?
SW/ No Brian’s, my partner
JS/ Brian Choolum
SW/ Yes
JS/ Where is Brian?
SW/ We are divorced – he is in Stirling
JS/ Is he going to be annoyed?
SW/ *Nods
JS/ So it’s not your daughter’s car then?
SW/ No it’s not Lenisha car
JS / No – so one you drive?
SW/ I brought that car, $10,500 at used car
JS/ So you got frustrated and set car alight? Because you were angry at her for taking your money?
SW/ *Nods
JS/ What did you use to light car?
SW/ Cigarette lighter – I got it here
JS/ So tell me what you did, it is usually pretty hard to light a car with cigarette lighter. So tell me what you did?
SW/ I used the paper on the passenger seat – next thing [inaudible]
JS/ Did you stay there for a while or just walk here?
SW/ At least I took everything out of the car
JS/ Right, ok. Where was it parked?
SW/ Parked where it got burnt
JS/ Still sore?
SW/ I never got up
JS/ Get an ambulance – this is not like you to do this? Well not in Yuendumu, well maybe Alice
SW/ No, I got upset
JS/ She has a stent in her brain which feeds down and says into her stomach. Generally manages well, but alcohol just not mix well when hear in Alice. Got pain in head and both eyes.
SW/ I came here and I told that I got that lit
JS/ Get ambulance here to look after you
SW/ I am being helpful
JS/ You are, always so helpful at Yuendumu
SW/ I was angry
JS/ Did you two have barney?
…….….
SW/ For that car, that he ran me over that I lit on fire
………
SW/ My daughter took off with that money
………
SW/ She stole my money – but I got my money
………
JS/ I do – that is why I was surprised to come into station
SW/ No – if I had not of come here, then I just burnt that car, then I would have just run away. But I came here
………
SW/ I am being honest
JS/ You always have been [inaudible] would be shocked to see you here
SW/ If I was guilty, I was going to [inaudible] but I feel hurt
JS/ Feel hurt and betrayed by Lenisha
SW/ She just took off with my money
JS/ What is the money? How did she get it?
SW/ She took it out of my pocket
………..
SW/ I been honest and I tell myself that I burn the car
………….
SW/ You know me, I am an honest person. It is hurting in my head. Also I got a tube going down
……..
SW/ It is burning in my chest. I am feeling hurt. I feel hurt. I am worried for my daughter, but she got my money
…………
JS/ This is the first time Lenisha done that?
SW/ She not supposed to be in Alice Spring – she supposed to be in Stirling
JS/ How did she get here?
SW/ With the car
…………
SW/ You know me, I’m an honest person. I got paining in my chest and both eye. You know why?
…………
JS/ Did the car get registered in either name?
SW/ Just Brian – it always his car. It is a station wagon
JS/ It is not in a good way now?
SW/ No it’s burnt(v)While waiting for the ambulance to arrive
Nil.
(d)Constable Hendriks statutory declaration dated 9 June 2021 at the Alice Springs Watch-house on 8 June 2021 after cautioning the accused and offering her an EROI:
5. After I cautioned Woods, she stated that she had set the car on fire, but did not want to do an interview.
The evidence on the voir dire
The three police officers who had conversations with the accused gave evidence during the voir dire hearing. The accused did not give evidence.
The evidence in chief of each of the three police officers was confined to the contents of their statutory declarations, the relevant parts of which are already set out above. After they read those statutory declarations onto the record they were each cross-examined. As well, the accused tendered the records of the Alice Springs Hospital relating to her attendance there on 16 April 2021 (Exhibit B).
In cross examination, Constable Raatz said that he prepared his statutory declaration on 5 May 2021, approximately three weeks after his interaction with the accused. In the meantime he agreed that he had been on duty and had “many other interactions with other people”.[1] Given that his statement was prepared “purely from [his] recollection”, he was willing to concede that there was a possibility that he may not have been entirely accurate in his recording of what the accused had told him. He was also willing to accept the possibility that she in fact said “she was here to report herself because she struck a lighter on the station wagon”.[2] Finally, he said that he could not remember whether the accused appeared to be intoxicated at the time but he was aware that she was in pain and needed medical attention because he arranged for an ambulance to be called.[3]
During his cross-examination Senior Constable Sharp identified the recording from his body worn camera as mentioned above and addressed several issues during which he made a number of concessions including the following:
(a)As part of his police training he was aware of the obligation to caution a person as outlined in the Police General Orders.[4]
(b)Before he went to speak to the accused in the reception area of the Police Station he had reason to suspect that she had committed a criminal offence because of the information he had received from his superior officer.[5]
(c)That the caution he administered to the accused did not include (d) of paragraph 3.1 of Police General Order Q1: Questioning and Investigations (PGO1).[6] That Order relevantly provides:
It is not necessary for the caution to be administered verbatim. This may be inappropriate for certain people. What is important is that the essence of the caution must be conveyed, that is:
…….
d)The suspect understands that this recording may be used in court.
(d)That he did not ask the accused to explain back to him in her own words her understanding of the caution he had given to her as required by paragraph 3.1.3 of Police General Order Q2: Questioning People Who Have Difficulties with the English Language – the “Anunga” Guidelines (PGO2).[7] That Order relevantly provides:
3.1.3Great 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.
(e)That no interpreter was offered to the accused despite the fact that he was aware that she was an Aboriginal person from Yuendumu and that her first language was not English.[8] In this respect paragraph 3.1.1 of PG02 relevantly provides:
3.1.1Notwithstanding that the suspect may speak some English, an interpreter should be present, and the interpreter’s assistance utilised whenever necessary, in order to ensure complete and mutual understanding.
(f)That he was aware that the accused had consumed alcohol that night and was intoxicated, although he denied that she was “heavily intoxicated” or was slurring her words.[9] Nonetheless he accepted that if she had recorded a blood alcohol reading of 0.308 at the Alice Springs Hospital later that night, she would have been heavily intoxicated.[10] He also agreed that the accused “provided [him] information that she had been consuming a significant quantity of alcohol”.[11]
(g)That he was aware that the accused had a medical condition and that that condition made her particularly vulnerable to the consumption of alcohol.[12] As well he agreed that she complained to him of having pains in her head and chest and was visibly upset.[13] He also said that he was concerned about her condition, so much so that he arranged for her to be taken to hospital for medical treatment.[14] In this respect paragraph 3.1.7 of PGO2 provides:
3.1.7Suspects should not be interviewed when disabled by illness, injury, intoxication, or fatigue. Interrogation should not continue for an unreasonably long time without a break.
(h)That when he spoke to the accused he had a suspicion that she had committed a criminal offence but despite that suspicion she was free to leave the police station at any time and he did not intend to arrest her.[15] As well, he said that he “didn’t have enough to arrest her and also early in the piece she did talk about the medical side anyway. So arrest is irrelevant because we would have taken her to hospital or got ambulance to take her to hospital”.[16]
In re-examination Senior Constable Sharp said that he had not intended to omit sub paragraph (d) of paragraph 3.1 of PGO1 from the caution he gave to the accused. He offered the following explanation for that omission: “we cannot use this caution verbatim, for a lot of people. Because some of the words in there, people do not understand. So we try to use words that they understand, and at times, things get omitted, when they should be put in”. As well, he said he did not know “what medical condition she had that stent for”.[17]
In further cross-examination on this point he sought to explain, in the following terms, why he omitted this part of the caution: “it depends on their level of understanding. Everyone’s different. Some people you could actually state the verbatim, and they would understand it all. Some, not at all, and sometimes when you say well, do you know the difference between right and wrong, and they say yes. But they’re actually wrong, because they’re just saying yes to please you… So everyone is different, which is why I don’t have a set routine for doing those cautions, and on occasion things get omitted”.[18]
In his cross examination Constable Kendrick said that he could not recall exactly what he said to the accused when he gave the caution to her and that he had not taken any notes of their interaction. As well, he said that he compiled his statement on 9 June 2021 based on his recollection of his conversation with the accused on the previous day.[19]
The grounds of objection
Three grounds were set out in the accused’s amended notice of objection as follows:
(a)That the admissions are inherently unreliable and should not be admitted pursuant to s 85 of the ENULA.
(b)That the admissions were unlawfully obtained due to the failure by Senior Constable Jonathan Sharp to properly caution the accused and the admissions should be excluded pursuant to the combined operation of
ss 138 and 139 of the ENULA.(c)That it would be unfair to admit the admissions having regard to the circumstances in which they were made pursuant to s 90 of the ENULA.
Following the voir dire hearing an amended set of written submissions was filed on behalf of the accused. Thereafter the Crown filed its written submissions. The accused was then afforded the opportunity to file written submissions in reply but her counsel elected not to do so. As will appear below, this meant that she did not challenge some of the Crown’s more contentious submissions.
Furthermore, in her amended written submissions the accused did not seek to pursue an objection based on s 139 of the ENULA (see at [20(a)] above). However she did raise a fourth ground of objection which did not appear in that document, namely, that the admissions purportedly made to Constable Hendriks on 8 June 2021 should be excluded under s 142 of the PAA.
Senior Constable Sharp - objection under s 138 of the ENULA
Introduction
Since it occupied most of the accused’s written submissions, it is convenient to deal with this ground of objection first. It relates to the admissions that the accused accepts were made during her conversation with Senior Constable Sharp as set out above (at [12](a) and [12](b)). There is no dispute that those parts of the evidence all meet the definition of the word “admission” contained in the ENULA[20]. Section 138 of the ENULA provides:
Exclusion of improperly or illegally obtained evidence
(1)Evidence that was obtained:
(a)improperly or in contravention of an Australian law; or
(b)in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2)Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:
(a)did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b)made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3)Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a)the probative value of the evidence; and
(b)the importance of the evidence in the proceeding; and
(c)the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d)the gravity of the impropriety or contravention; and
(e)whether the impropriety or contravention was deliberate or reckless; and
(f)whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g)whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h)the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
There is also no dispute that the admissions in question were obtained “in consequence of an impropriety” within the terms of s 138(1)(b) above. That being so, the accused had discharged her onus and from that point the onus shifted to the Crown to establish that “the desirability of admitting the evidence outweighs the undesirability of admitting [the] evidence…..” in accordance with the concluding word of s 138(1) above.[21] That, in turn, requires consideration of the matters set out in s 138(3) above.
The contentions
In their written submissions there was a degree of common ground between the parties with respect to some of those matters. Specifically:
a.That the evidence concerned was of high probative value (s 138(3)(a)). The Crown provided as reasons for that conclusion that the admissions were made in clear and direct terms, that they were not implied or cryptic, that they were made shortly after the alleged offence and that they were detailed.
b.Depending on the extent to which they were excluded, that the admissions were important in the proceeding (s 138(3)(b)).
c.Based on the fact that it carried a penalty of life imprisonment, that the offence of arson was a serious offence. However the accused claimed, and the Crown appeared to accept, that her alleged offending was towards the lower level for offending of that kind because it did not involve any threat to human life and was confined to damage to a vehicle (s 138(3)(c)).
d.Finally, that the evidence could most likely have been obtained with little difficulty had the Anunga guidelines and PGO2 been complied with
(s 138(3)(h)).However the parties parted ways on most of the matters set out in
ss 138(3)(d) to (g) above, which broadly concern the nature and effect of the agreed improprieties. Dealing first with the gravity of those improprieties
(s 138(3)(d)), the Crown contended that, while the caution given by Senior Constable Sharp was deficient, he did tell the accused that she did not have to speak to police. Further, whilst she was not asked to demonstrate her understanding of the caution that was given, he did ask her whether she understood her right to silence and she nodded in response.As well, with respect to this matter the Crown relied on the circumstances in which the admissions were made. In particular, that the accused attended the Alice Springs Police Station of her own volition and made the admissions concerned voluntarily in circumstances where she was not under arrest at any stage and was, at all times, free to leave. Having regard to these matters the Crown contended that the improprieties were reckless rather than intentional
(s 138(3)(e)).On the gravity of the improprieties the accused placed particular emphasis on the fact that her right to silence was a “keystone of the criminal justice system” and contended that it was a right that should be “closely guarded”. Against that background she contended that the failure to properly caution her, to continue to question her in the absence of an interpreter and to do so while she was affected by alcohol and suffering from one or more medical conditions amounted to improprieties of high gravity.
While the accused essentially agreed with the Crown’s contention that the improprieties were reckless rather than intentional she added: “although [Senior Constable] Sharp gave evidence in re-examination that he often adjusts his language to “people on the street” which would suggest a pattern of similar behaviour”. She contended that this factor also weighed in favour of rejecting the evidence.[22]
As for the application of the International Covenant on Civil and Political Rights (ICCPR) (s 138(3)(f)), the Crown pointed to article 14.3(g) of that Convention and contended that this case involved a “technical breach” with respect to the form and content of a caution rather than involving any compulsion for the accused “to testify against herself or to confess guilt”. This is one of the matters where the accused did not exercise her right to file submissions in reply to challenge this contention.
However, the positions were reversed with respect to the next matter, namely the likelihood that any proceeding would be taken in relation to the improprieties
(s 138 (3)(g)). On that matter the accused contended that no such action was likely to be taken and that was a factor that weighed in favour of the evidence being excluded.[23] The Crown did not contend otherwise in its written submissions.In summary, the Crown accepted that the “integrity of the judicial system [was] paramount” and contended that a balancing exercise was required in this matter between, on the one hand, the accused’s right to silence and considerations such as “fairness, integrity and confidence in the administration of justice”, and the “presentation of all relevant and reliable evidence for the trier of fact”, on the other. On this balancing exercise, it ultimately contended that the desirability of admitting the evidence outweighed the undesirability of that course.
Unsurprisingly the accused contended to the contrary. She contended that the admissions should not be admitted for two primary reasons. First “to protect individual rights and to avoid the appearance of condoning improper conduct by police” and, secondly, “to deter improper conduct by police officers, who are entrusted with significant responsibilities to uphold and enforce the law”.
Consideration & disposition
The nature of the balancing exercise required in this matter was described by Mason CJ, Deane and Dawson JJ in Ridgeway v R[24] in the following terms:
…… a trial judge must engage in a balancing process to resolve “the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law”. The basis in principle of the discretion lies in the inherent or implied powers of our courts to protect the integrity of their processes. In cases where it is exercised to exclude evidence on public policy grounds, it is because, in all the circumstances of the particular case, applicable considerations of “high public policy” relating to the administration of criminal justice outweigh the legitimate public interest in the conviction of the guilty. (Citations omitted)
In Gedeon v R[25], after quoting the above observations, Bathurst CJ said:
The exercise of the discretion does not depend on the question of fairness for the accused or for that matter on whether the accused was induced to commit the offence in question…….. Rather, as was said in Ridgeway above, it depends on considerations of “high public policy” relating to the question of whether the effect of the illegality or impropriety on the administration of justice outweighs the legitimate public interest in the conviction of the guilty. (Citations omitted)
The purpose of a caution is, in broad terms, to inform an accused person of three things: the existence of their right to silence; the basic content of that right; and the consequences of waiving it.[26] Hence the requirements to clause 3.1 of PGO1. An effective caution must therefore convey each of these elements.
Turning to PGO2, as its title suggests, it is intended to reflect the Anunga rules or guidelines. In the present context, the general purpose of those guidelines was expressed by Kearney J in Dumoo v Garner[27] as: “… to ensure that Aboriginals are not intimidated when questioned by police, are properly treated when arrested, fully understand that they do not have to answer questions by police, have access in every case to a “prisoner’s friend”, and access to an interpreter where appropriate”.
This purpose is reflected within the various clauses of PGO2. That includes the need, where appropriate, to provide an interpreter (clause 3.1.1, see at [16(e)] above) and to establish that the person concerned has the requisite understanding of his or her right to remain silent (clause 3.1.3, see at [16(d) above). It also includes the need, where appropriate, to avoid circumstances that may distract from a person’s understanding of a caution such as illness, injury, intoxication, or fatigue are reflected in clause 3.1.7 (see at [16(g)] above).
Several relevant principles have emerged from the many authorities dealing with the interaction between an Aboriginal person’s right to silence and the Anunga guidelines. Many of those authorities were gathered in Hiley J’s judgment in R v Bonson.[28] They include: that those guidelines apply to “all situations if the police wish a conversation upon interview to be admitted into evidence…”[29]; that they are guidelines and not rules of law[30] and that they are not limited to language difficulties but extend to matters such as “the well-known phenomenon of “gratuitous concurrence”.[31]
Applying these principles in this case, first, with respect to the “desirable goal” of bringing the accused to conviction I accept the common position of the parties that the admissions the accused voluntarily made to Senior Constable Sharp are of high probative value and are important in this proceeding. As well, having regard to all of the surrounding circumstances, I accept that Senior Constable Sharp’s acknowledged improprieties were reckless rather than intentional. Finally, while it is of little importance in the outcome to this ground of objection, I also accept the Crown’s unchallenged contention with respect to the operation of the ICCPR (see at [30] above).
Nonetheless, for the following reasons, I do not consider those factors outweigh the “undesirable effect” that would be conveyed by giving approval to Senior Constable Sharp’s improprieties and accepting the accused’s admissions into evidence. To begin with, I reject the Crown’s contentions at [26] and [27] above concerning the gravity of the improprieties. To explain why that is so, it is necessary to set out that part of the conversation between Senior Constable Sharp and the accused that allegedly contains the caution. It is as follows - taken from the transcript of Senior Constable Sharp’s body worn camera:
JS/ Got to tell you because you’ve been free with that information, but you need to know that you do not need to tell me or talk to me about what’s happened, you know that?
SW/ Yeh
JS/ You happy to talk to me about it? That is why you have come here? Ok what is happening with our brain? You mentioned brain is paining?
SW/ Paining in my brain and I got a [inaudible]
JS? How long
SW/ Over and over
JS/ Since the incident at Nicker or before?
SW/Before
JS/ Had it tonight? When was the last time went to hospital
SW/ Had surgery in Adelaide in 2017 – before that over and over
JS/ Way you are feeling, do you need ambulance
SW/ Yes please
Self-evidently the first question is far from a satisfactory description of the existence and effect of the accused’s right to silence. That is so because, among other things, that question contains at least two propositions: that she had been “free with that information”; and that she did not need to talk. Thus the accused’s answer “yeh” could constitute an affirmation of either or both. On the other hand, because of the ambiguity in the statement “you do not need to tell me or talk to me about what’s happened”, that response could not be taken as an affirmation of her understanding of the content of her right to silence, even if the question had contained a satisfactory explanation of that right.
Then, even accepting that she nodded in response to the first two of the second group of four questions[32], those two questions do not identify what she was “happy to talk” about and essentially advanced reasons why she wished to talk rather than any affirmation of her right not to talk to the Senior Constable Sharp. In any event, putting aside the issue whether she nodded in response to those two questions, the transcript reveals that her verbal response to that group of four questions was to reiterate the pain that she was, and had for some time been, experiencing in her brain.
To these defects in Senior Constable Sharp’s alleged caution may be added the following. First, he knew that English was not the accused’s first language yet he failed to provide her with an interpreter, or even ask her whether she would like one to be present to assist her. Secondly, he continued with the interview in circumstances where the accused said, from the outset, that “my shunt it is hurting” and that she had “paining in my brain”. In addition she told him that she had been drinking alcohol and, later in the conversation, she said that she was feeling “dizzy”.
On this aspect I find that the accused was heavily intoxicated at the time that the admissions were made as indicated by the exceedingly high blood alcohol reading of 0.308 that she recorded, at about 12.50am, some hours after the conversation. I also find that the accused’s heavily intoxicated condition must have been readily apparent to Senior Constable Sharp throughout their conversation.
Thirdly, whether they are taken separately or together, these circumstances meant that Senior Constable Sharp could not be sure that the accused had a “complete and mutual understanding” of the existence and effect of her right to silence and the consequences of waiving it.
Fourthly, the latter is compounded by the omission from the alleged caution of any statement in the terms of sub clause (d) of clause 3.1 of PGO1 to the effect that, what the accused said to the Senior Constable, may be used in court. In this respect, I do not consider the explanations that Senior Constable Sharp offered for this omission are cogent.[33]
Finally, while the effect of some, or all, of these deficiencies might have been removed if Senior Constable Sharp had asked the accused to explain, in her own words, her understanding of the caution, he failed to make any such a request of her.
In my view, the combined effect of all these circumstances means that allowing the admissions to be admitted into evidence in this proceeding would condone, what I consider to be, a raft of improprieties on Senior Constable Sharp’s part in connection with the caution he claims to have given to the accused. Moreover, the inappropriateness of that condonation would be compounded by the circumstance that no other proceeding is likely to be taken to condemn those improprieties.[34] In other words, I consider admitting the admissions into evidence would undermine confidence in the administration of the criminal justice system. Accordingly, I do not consider that the Crown has discharged its onus to show that the desirability of admitting the admissions into evidence outweighs the undesirability of doing so.
I therefore rule that the evidence constituting the admissions described at [12(b) and (c)] above is not admissible into evidence in this proceeding. Having reached this conclusion under s 138 of the ENULA and having regard to the observations of Gummow & Hayne JJ in EM v R[35], it is unnecessary to consider the accused’s alternative grounds of objection under s 85 relating to the reliability of the admissions and/or s 90 relating to the fairness of admitting them into evidence. However that does not obviate the necessity to consider those grounds with respect to the admissions allegedly made to Constable Raatz to which I now turn.
Constable Raatz – objections under ss 85 and/or 90
The s 85 objection
The admission to which these objections relate was allegedly made when the accused attended at the front counter of the Alice Springs Police Station and spoke to Constable Raatz who was on duty there at the time. The details of that alleged admission have already been set out above (at [12](a)).
Section 85 provides:
85Criminal proceedings – reliability of admissions by defendants
(1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant:
(a)to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence; or
(b)as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.
(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.
(3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account:
(a)any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject; and
(b)if the admission was made in response to questioning:
(i)the nature of the questions and the manner in which they were put; and
(ii)the nature of any threat, promise or other inducement made to the person questioned.
In her written submissions the accused assumed that one of the preconditions in
s 85(1) above had been met and proceeded to address the issue raised by
s 85(2), namely to provide several reasons why “a question legitimately arises as to whether the circumstances are such that the truth (or untruth) of the admission might have been adversely affected”. However in its written submissions the Crown challenged that assumption on the footing that Constable Raatz was not, at the relevant time, “an investigating official, performing functions in connection with the investigation of the possible commission of an offence”. It claimed that was so because, at the time that the accused first attended at the front counter, neither Constable Raatz, nor any other officer, was aware that the alleged offence had been committed.There is no evidence that, at about the time the accused attended at the front counter of the Police Station, Constable Raatz was aware of the alleged offence or was performing any function in connection with its investigation. The accused’s counsel did not ask any questions in cross-examination directed to this issue and nor did he take the opportunity to file submissions in reply to respond to the Crown’s contentions concerning it. In the absence of any evidence or submission to the contrary, I am left to conclude that the Crown is correct in its contentions that none of the preconditions in s 85(1) has been met. In that event, the opportunity to consider the accused’s contentions with respect to the truth or untruth of the alleged admission under s 85(2) does not arise. I therefore dismiss this ground of objection.
The s 90 objection
This objection relates to the same alleged admission, the details of which are already set out above (see at [12(a)]. It relies on “unfairness” to the accused under s 90 of the ENULA. That section provides:
90Discretion to exclude admissions
In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:
(a) the evidence is adduced by the prosecution; and
(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.
Both parties referred to the observations of Gummow and Hayne JJ in EM v R[36] to identify the purpose of this section, that is “…. the unfairness of using the evidence at trial, not directly upon characterising the circumstances in which the admissions were made…”.
In that light the accused contended that using the alleged admission was unfair because it was “obtained in circumstances where [she] was expressly questioned by a police officer without being properly cautioned”. As well, she claimed that this unfairness was “elevated” because the alleged admission had “significant bearing on the strength of the prosecution case”. She also added that “the prosecution has gained a tactical advantage at trial” to her detriment and that has resulted in unfairness.
In response the Crown contended that little had been offered by the accused to support a finding of unfairness assuming the alleged admission was to be used at the trial of this proceeding. In this context it submitted that unfairness “does not mean a greater risk of conviction”. It also submitted that factors such as the absence of an interpreter, intoxication, medical conditions and distress were all matters that a jury would be able to assess[37].
For the following reasons I reject the accused’s submissions on this objection and accept those of the Crown. First it is important to record that the accused bears the onus of establishing the facts giving rise to this unfairness on the balance of probabilities[38].
Secondly while the accused claimed that the prosecution will gain a tactical advantage at the trial of this proceeding, she did not identify what that tactical advantage was. Standing unparticularised, as it is, it is difficult to discern what it might be. It does not obviously fall into any of the categories identified by the plurality in R v Swaffield[39] and it could not, as the Crown has correctly pointed out in its submissions, involve any greater risk of conviction.[40]
Thirdly, as regards the accused’s reliance on her being questioned without being properly cautioned, it is clear from Constable Raatz’s evidence that the accused made a spontaneous admission to him at the front counter of the police station and, in response, he did not question her at all but rather arranged for other officers to attend and speak to her. It follows that, at that stage of the sequence of events, no opportunity for a caution arose. Consequently, none of the matters discussed earlier with respect to s 138 of the ENULA, has any relevant bearing on this question of unfairness. It is worth adding that this conclusion does not, as the Crown has correctly contended, prevent the accused from putting those matters to the jury as affecting the weight they give to her alleged admission. That includes the issue concerning the accuracy of Constable Raatz’s recollection that was raised during his cross-examination at the voir dire hearing.[41]
For these reasons I do not consider that the accused has discharged her onus with respect to this ground of objection and it must, therefore, be dismissed. This means that I have dismissed both of the objections concerning Constable Raatz’s evidence. Accordingly I rule that his evidence may be tendered by the Crown at the accused’s trial.
Constable Hendriks – Objection under s 142 of the PAA
Finally the accused raised an objection under s142 of the PAA in relation to the admission she made to Constable Hendriks on 8 June 2021. The terms of that admission are set out above (see at [12 (d)]). There was no dispute that the accused made this statement to Constable Hendriks and that it constituted an admission.
In his statutory declaration Constable Hendriks described the circumstances in which this admission was made in the following terms:
2.On Tuesday the 8th of June 2021, I was rostered to work a day shift at the Alice Springs Watch House, commencing at 0700 hours.
3.About 1242 hours, an Indigenous female that I know to be Samantha WOODS was received into Watch House custody.
4.About 1315 hours, as per an alert that had been placed on WOODS Promis ID, I cautioned WOODS, and offered her an EROI regarding an incident that had occurred on the 16th of April 2021.
5.After I cautioned WOODS, she stated that she had set the car on fire, but did not want to do an interview.
Notwithstanding the lack of any notes[42], because Constable Hendriks made his statutory declaration within a short period after the events to which it relates, I accept that it contains an accurate description of those events.
Section 142 of the PAA relevantly provides:
142Electronic recording of confessions and admissions
(1) Subject to section 143, evidence of a confession or admission made to a member of the Police Force by a person suspected of having committed a relevant offence is not admissible as part of the prosecution case in proceedings for a relevant offence unless:
(a)where the confession or admission was made before the commencement of questioning, the substance of the confession or admission was confirmed by the person and the confirmation was electronically recorded; or
(b)where the confession or admission was made during questioning, the questioning and anything said by the person was electronically recorded,
and the electronic recording is available to be tendered in evidence.
In making this objection, the accused relied on the fact that her admission to Constable Hendriks was not confirmed by electronic recording as required by this provision. In its written submissions the Crown conceded this non-compliance. In support of her objection, the accused submitted that, notwithstanding the provisions of s 143 of the PAA, there was “a strong imperative to reinforcing compliance with procedural safeguards when questioning suspects” such that it was not in the interests of justice that the admission concerned be admitted.
Section 143 of the PAA provides:
143Certain evidence may be admitted
A court may admit evidence to which this Division applies even if the requirements of this Division have not been complied with, or there is insufficient evidence of compliance with those requirements, if, having regard to the nature of and the reasons for the non-compliance or insufficiency of evidence and any other relevant matters, the court is satisfied that, in the circumstances of the case, admission of the evidence would not be contrary to the interests of justice.
In response the Crown relied upon this provision and submitted that it was not contrary to the interests of justice to admit the admission into evidence because:
(a)it was made to Constable Hendriks after the accused had been cautioned;
(b)it was not made during official questioning but rather whilst Constable Hendriks was offering the accused a chance to participate in an electronically recorded interview and, in that state of affairs, it must be considered to be spontaneous; and
(c)it was short in duration, frank and uncomplicated.
Before considering these contentions, it is convenient to dispose of another submission that was made by the accused. It was that, because the admission had been obtained “in consequence of the original impropriety stemming from the failure by Senior Constable Sharp to properly question” her on 16 April 2021, it was also liable to exclusion under s138 of the ENULA.
I reject this submission. There was no relevant consequential link between the circumstances that gave rise to the improprieties affecting the admissions made to Senior Constable Sharp on 16 April 2021 and the circumstances surrounding the making of the admission to Senior Constable Hendriks. The two conversations occurred in entirely different circumstances, at different stages of the investigation into the accused’s alleged offence and were separated in time by approximately nine weeks. In particular, there is no evidence that the accused was intoxicated or suffering from any debilitating medical condition at the time of her conversation with Constable Hendriks. Nor is there any evidence that the caution he gave to the accused suffered from any of the improprieties that were admitted to exist in relation to Senior Constable Sharp’s alleged caution.
Turning then to the remainder of the contentions above, in R v Jennings[43] Grant CJ made a number of observations about the operation of ss 142 and 143 of the PAA that are particularly pertinent for present purposes. First, as to the effect of s 142, his Honour said that: it “does not cast a positive obligation on attending police”; it is not “unlawful for a police officer not to make an electronic recording of an admission or confession”; and it only operates to “make a confession or admission prima facie inadmissible”[44].
Secondly, his Honour said that the “public interest” purpose of s 142 was, subject to the qualification in s 143, “certainty and transparency”[45]. Thirdly, he said that the Crown bears the onus of satisfying the court on the balance of probabilities that the admission of the evidence would not be contrary to the interests of justice[46].
Fourthly, his Honour said that the expression “not contrary to the interests of justice” operated to engage “the common-law discretions governing exclusion on the grounds of fairness and public policy”.[47] In this respect he said that the reception of an admission was “not unfair because it has inculpatory effect” and that “the requirement of fairness is directed primarily to voluntariness”[48].
Fifthly and finally, his Honour concluded by saying that: “Generally speaking, where an accused spontaneously makes an admission to police in circumstances where the admission is not elicited in response to official questioning, a court will not exclude an unrecorded admission: see, for example, Bullock”.[49]
In my view the admission that the accused made to Constable Hendriks falls squarely within the terms of the final observation above. As the Crown has correctly contended[50] it was made after the accused had been cautioned, it was not made during official questioning, and it was spontaneous. Accordingly, despite the fact that it was unrecorded, I do not consider that it would not be in the interests of justice to admit it into evidence.
It follows that the Crown has discharged its onus with respect the discretion contained in s 143 of the PAA. It follows further that this ground of objection concerning Constable Hendriks’s evidence must be dismissed. I therefore rule that his evidence may be tendered by the Crown at the accused’s trial.
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[1] Transcript, Supreme Court, The King v Samantha Woods, 1 December 2022 at 25.
[2]Ibid at 26.
[3] Ibid at 26.
[4]Ibid at 17.
[5] Ibid at 11.
[6] Ibid at 9.
[7] Ibid at 9.
[8] Ibid at 8 to 9.
[9]Ibid at 9.
[10] Ibid at 10.
[11]Ibid at 14 to 15.
[12] Ibid at 15.
[13] Ibid at 16 to 17.
[14] Ibid at 16 to 17.
[15] Ibid at 11 and 18-19.
[16] Ibid at 12.
[17] Ibid at 20.
[18]Ibid at 22.
[19] Ibid at 28.
[20] ENULA Dictionary, Part 1, Definitions: "admission".
[21] Parker v Comptroller-General of Customs (2009) 83 ALJR 494 at [28] per French CJ; Mole v Prior [2016] NTCA 2 at [27] per Riley, Kelly & Hiley JJ and MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR, [2021] HCA 17 at [111] per Gordon & Steward JJ.
[22] Relying on Kadir v The Queen; Grech v The Queen [2020] HCA 1 at [20].
[23]Relying R v Gallagher [2015] NSWCCA 228 at [45].
[24](1995) 184 CLR 19 at 31.
[25][2013] NSWCCA 257 at [177].
[26] See R v Deng [2001] NSWCCA 153 at [17] per James J with whom Handley JA and Ipp AJA agreed and R v Bonson [2019] NTSC 22 at [28] per Hiley AJ.
[27] (1998) 7 NTLR 129.
[28] [2019] NTSC 22.
[29] Ibid at [42] referring to R v Jabarula (1984) 11 A Crim R 131 at 139 per Muirhead J.
[30] Ibid at [49] referring to The Queen v BM [2015] NTSC 73 at [49] per Blokland J.
[31] Ibid at [44] referring to Dumoo v Garner at 141.
[32] It is to be noted that the transcript does not record such a nod and it is unclear from the video recording whether she nods in response to either, or both, of those questions.
[33] See at [17] and [18] above.
[34] See the accused’s submission at [31] above.
[35] EM v R (2007) 232 CLR 67 [2007] HCA 46 at [109].
[36](2007) 232 CLR 67, [2007] HCA 46 at [107].
[37] Relying the observations of Sperling J in R v Nelson [2004] NSWCCA 231 at [55].
[38] See s 142 (1) of the ENULA and R v Jennings [2020] NTSC 71 at [11] per Grant CJ.
[39] (1998) 192 CLR 159 at [78] per Toohey, Gaurdon and Gummow JJ.
[40] See R v GP [2015] NTSC 53 at [66] per Barr J.
[41] See at [15] above.
[42] See at [19] above.
[43] [2020] NTSC 71.
[44]Ibid at [25].
[45] Ibid at [25].
[46]Ibid at [26].
[47] Ibid at [27].
[48] Ibid at [27].
[49] [2005] NSWSC 825.
[50] See at [68].
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