The Queen v Tyson - [2018] NTSC 27

CITATION:The Queen v Tyson [2018] NTSC 27
PARTIES:THE QUEEN

v
TYSON, Fabian

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY exercising Territory jurisdiction
FILE NO:21710791
DELIVERED ON:  30 April 2018
DELIVERED AT:  Darwin
HEARING DATE:  30 April 2018
JUDGMENT OF:  GRANT CJ
CATCHWORDS:

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – CONFESSIONS AND ADMISSIONS
Whether evidence of admissions in record of interview inadmissible because circumstances not such as to make it unlikely that truth of admission adversely affected within the meaning of s 85(2) of the ENULA – s 85 of the ENULA not directly concerned with whether evidence improperly or illegally obtained – not directly concerned with general considerations of fairness – not directly concerned with voluntariness of the confession – admissions made in circumstances that were unlikely to adversely affect their truth.
CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – CONFESSIONS AND ADMISSIONS
Whether admissions should be excluded because unfair to admit the evidence having regard to the circumstances in which made within the meaning of s 90 of the ENULA – considerations informing the exercise of discretion not restricted to conduct of investigating authorities and reliability of admission in question – strategic or forensic disadvantage may constitute unfairness – accused failed to discharge onus of establishing unfairness.

Criminal Code (NT) s 192
Evidence (National Uniform Legislation) Act (NT) s 56, s 85, s 90, s 137, s 138, s 142
Police Administration Act (NT) s 140
Collins v R (1980) 31 ALR 257, Em v R (2007) 232 CLR 67, Foster v R (1993) 67 ALJR 550, McDermott v R (1948) 76 CLR 501, Murphy v R (1989) 167 CLR 94, R v Amad [1962] VR 545, R v Bosman (1988) 50 SASR 365, R v Dixon (1992) 28 NSWLR 215, R v Echo (1997) 6 NTLR 51, R v Esposito (1998) 45 NSWLR 442, R v GP [2015] NTSC 53, R v Lee (1950) 82 CLR 133, R v Nagawalli [2009] NTSC 25, R v Noakes (1986) 42 SASR 489, R v Rooke (Unreported, NSW Court of Criminal Appeal, 2 September 1997), Sparks v R [1964] AC 964, referred to.
REPRESENTATION:
Counsel:
Prosecution:  G McMaster
Accused:JWM Adams
Solicitors:
Prosecution:  Office of the Director of Public Prosecutions
Accused:
Judgment category classification:    B
Judgment ID Number:  GRA1808
Number of pages:  27

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Tyson [2018] NTSC 27

No. 21710791
BETWEEN:

THE QUEEN

Plaintiff

AND:

FABIAN TYSON

Defendant

CORAM: GRANT CJ
EX TEMPORE REASONS FOR JUDGMENT
(Delivered 30 April 2018)

The accused is charged with one count of sexual intercourse without consent contrary to s 192(3) of the Criminal Code (NT). The offence is alleged to have occurred at Urapunga on 15 December 2016.
The accused contends that the record of interview should be excluded on the basis that the circumstances in which it was made were not such as to make it unlikely that the truth of the admissions was adversely affected within the meaning of s 85(2) of the Evidence (National Uniform Legislation) Act (NT) (“ENULA”); and/or in the exercise of the discretion under s 90 of the ENULA because it would be unfair to the accused to use the evidence.
The relevant admissions made in the record of interview are that the accused grabbed the alleged victim “on the arse” but that he did not rape her; and that in grabbing the alleged victim he was motivated by sexual urges. The record of interview also contains what might be seen as an exculpatory statement by the accused that he was attempting to stop the alleged victim running into a men’s ceremony ground.
The grounds on which the accused contends that the record of interview should be ruled inadmissible may be summarised as follows.
(a)the accused was not provided with a prisoner’s friend, and was not provided with an explanation of the role and purpose of a prisoner’s friend;
(b)the accused suffered from what are described variously by defence counsel as “mental deficiencies”, “a mental condition” and “intellectual impairment”;
(c)the accused was not told of the reason for his arrest at the time he was arrested and was told by police, “Just give us a statement and we will let you go”;
(d)the accused asked to speak with a lawyer prior to the conduct of the record of interview, but either no response was made by police to that request or it was constructively refused;
(e)the accused felt pressured to speak during the course of the interview even though he did not wish to speak; and
(f)the accused felt “dizzy” and his “head felt heavy” at the time the record of interview was conducted.
The accused was educated to Year 10 level at St John’s College and Kormilda College in Darwin. Since leaving school the accused has worked consistently in a variety of occupations and has completed a number of vocational certificates and qualifications. While it may be accepted that the accused had poor English literacy skills in terms of reading and writing, there is no submission by defence counsel that English is not a language in which the accused was able to speak and communicate with reasonable fluency, or that the evidence was obtained improperly or in contravention of an Australian law, within the meaning of ss 138 and 138 of the ENULA.
The circumstances of the accused’s arrest and the subsequent interview
Certain details concerning the arrest and interview of the accused are uncontentious.
At about 4.40 p.m. on 27 February 2017, Acting Sergeant Gunderson and Senior Constable Studders attended at an address in Katherine South in an attempt to locate the accused. Senior Sergeant Malogorski, Senior Constable Drury and Senior Constable Dingle were also in attendance, but did not participate in the actual arrest. The accused was at that time wanted for questioning in relation to allegations concerning a number of aggravated assaults on his partner and an indecent assault on the alleged victim in the current proceedings. The accused answered the door on that attendance. He was arrested, placed in a police vehicle, and conveyed to the Katherine police station by Senior Constable Dingle.
Senior Constable Studders and Senior Constable Drury then reviewed the case materials and prepared to interview the accused. At 6.16 p.m. those officers attended at the watch house and spoke with the accused to ask whether he wanted to participate in an interview and whether he wanted a support person present. At that time the accused stated that he was prepared to participate in an interview and that he did not require a support person. He was then taken through to the interview room.
The interview was conducted commencing from 6.24 p.m. on 27 February 2017. The interview was recorded in accordance with the provisions of the Police Administration Act. A viewing of the record of interview discloses the following matters. The caution was administered at the commencement of the record of interview. Prior to the administration of the caution, interviewing police spent some time assessing the accused’s level of education and his general comprehension of the circumstances. The caution was then explained to the accused phrase by phrase. The caution was explained in plain English terms.
The accused’s responses to the first part of the caution indicated he understood what it meant. There is nothing apparent or overt to suggest that the accused thought he was under a compulsion to answer the questions put to him. The accused says explicitly that it was his choice whether to answer questions or not. The accused understood the second part of the caution in the sense that what he said might be placed before a court and lead to the imposition of criminal sanctions, and was able to articulate the matter in those terms. The accused confirmed that understanding at the conclusion of the interview, and said, “I just want to tell you about my truth”.
Section 140 of the Police Administration Act
There is a preliminary question concerning the operation of s 140 of the Police Administration Act. That section provides:
140         Person to be warned and given opportunity to inform friend or relative of person's whereabouts
Before any questioning or investigation under section 137(2) commences, the investigating member must inform the person in custody that the person:
(a)    does not have to say anything but that anything the person does say or do may be given in evidence; and
(b)    may communicate with or attempt to communicate with a friend or relative to inform the friend or relative of the person's whereabouts,
and, unless the investigating member believes on reasonable grounds that:
(c)    the communication would result in the escape of an accomplice or the fabrication or destruction of evidence; or
(d)    the questioning or investigation is so urgent, having regard to the safety of other people, that it should not be delayed,
the investigating member must defer any questioning or investigation that involves the direct participation of the person for a time that is reasonable in the circumstances and afford the person reasonable facilities to enable the person to make or attempt to make the communication.
Section 141 of the Police Administration Act provides that the investigating member required to give the information under s 140 “shall, if practicable, electronically record the giving of the information and the person’s responses, if any”. A failure to administer the caution may bear on the admissibility of any subsequent record of interview. A failure to record that administration ordinarily will not.
Constable Dingle’s evidence is that he administered and recorded the caution required by s 140 of the Police Administration Act, that he included the tape of the electronic recording on the arrest file, and that the tape cannot now be located. Constable Dingle’s evidence receives some implicit support from the content of the record of interview. Reference is made in the record of interview to a conversation which took place prior to the commencement of that interview. The accused agreed that the conversation took place, that he was asked whether he wanted anyone notified of his arrest, and that he answered he did not. The accused said that he otherwise did not say anything during the course of that exchange.
Constable Dingle’s evidence also receives support from the Custody Board Offender Journal and the Chronology of Events created on that day. They record that the “s 140 conversation” between Constable Dingle and the accused took place at or about 5 p.m. on 27 February 2017. That record is confirmed by Senior Sergeant Malogorski, who was present at the time of the conversation.
Having regard to the evidence and the indications in the contemporaneous records, I find that the caution was administered in compliance with s 140 of the Police Administration Act. It is also material for the purposes of determining the admissibility of the record of interview that no admissions were made by the accused prior to the administration of the formal caution at the commencement of the record of interview.
The operation of s 85(2) of the ENULA
The accused’s first contention is that evidence of the admissions is not admissible because the circumstances in which they were made were not such as to make it unlikely that the truth of the admission was adversely affected within the meaning of s 85(2) of the ENULA.
Section 85 of the ENULA provides:
85 Criminal 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.
Note for subsection (1)
Subsection (1) is inserted as a response to the decision of the High Court of Australia in Kelly v The Queen (2004) 218 CLR 216.
(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.
Section 85 of the ENULA is concerned with whether the circumstances adversely affected the “truth of the admission”. It is not directly concerned with whether the evidence has been improperly or illegally obtained, or general considerations of fairness. Nor is the provision concerned with the voluntariness of the confession, except to the extent that it might bear on the assessment of reliability in the relevant sense.
The enquiry also does not raise any consideration of whether the admissions made were, in fact, true. The relevant enquiry is whether circumstances such as the accused’s personal characteristics and the level of compliance with procedural safeguards may have affected the truth of the confession.[1] In other words, the enquiry is whether the circumstances were such that it was unlikely that the accused made a false confession.[2]
The operation of s 90 of the ENULA
The accused’s second contention is that the record of interview should be excluded because it would be unfair to the accused to use the evidence having regard to the circumstances in which the admission was made within the meaning of s 90 of the ENULA. The accused bears the onus of establishing unfairness.[3]
Section 90 of the ENULA provides:
90     Discretion 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.
Note for section 90
Part 3.11 contains other exclusionary discretions that are applicable to admissions.
In Em v R,[4] the High Court considered the admissibility of an admission secretly taped by police. In the course of that consideration Gummow and Hayne JJ deal with the interaction between the various exclusionary provisions in the ENULA in the following terms:
When it is “unfair” to use evidence of an out-of-court admission at the trial of an accused person cannot be described exhaustively. “Unfairness”, whether for the purposes of the common law discretion or for the purposes of s 90 [of the Uniform Evidence Acts], may arise in different ways. But many cases in which the use of evidence of an out-of-court admission would be judged, in the exercise of the common law discretion, to be unfair to an accused are dealt with expressly by particular provisions of the Act[s] other than s 90. Thus although the discretion given by s 90 is generally similar to the common law discretion considered in [R v Lee (1950) 82 CLR 133], it is a discretion that will fall to be considered only after applying the other, more specific, provisions of the Act[s] referred to at the start of these reasons. The questions with which those other sections deal (most notably questions of the reliability of what was said to police or other persons in authority, and what consequences follow from illegal or improper conduct by investigating authorities) are not to be dealt with under s 90. The consequence is that the discretion given by s 90 will be engaged only as a final or ‘safety net’ provision.[5]
It follows that if circumstances are not such as to lead to the conclusion that it was not unlikely that the truth of that the admission was adversely affected, it nevertheless remains open to consider whether those circumstances call for exclusion on the grounds of unfairness. The considerations informing the exercise of that discretion are not restricted to the conduct of investigating authorities, the reliability of the admission in question, or the question of voluntariness. There may in some circumstances be unfairness arising from such matters as forensic disadvantage and the denial of procedural rights.[6]
Prisoner’s friend
The accused’s first complaint is that he was not provided with a prisoner’s friend, and was not provided with an explanation of the role and purpose of a prisoner’s friend.
As already noted, the evidence given by police was that the accused had been asked prior to the conduct of the record of interview whether he wanted a friend to be notified of his arrest and whereabouts. That is broadly consistent with both the administration of the warning required by s 140 of the Police Administration Act (and the content of that warning). Senior Constable Struthers gave evidence that prior to the record of interview the accused was asked whether he wanted a prisoner’s friend present. Senior Constable Drury has no specific recollection of making that offer, but says that it was then, and remains, his standard practice to make that offer in these circumstances.
That evidence is consistent with what was said later in the electronic record of interview. The relevant part of the record of interview provides:
Question: Alright, do you agree earlier that I asked you if you wanted someone to sit here with you today?
Answer: Yeah.
Question:And what did you say about that?
Answer:No.
Question:And you're still happy to be here by yourself?
Answer:Yeah.
The submission made in advance of the hearing was that the reason the accused gave these answers was that he was only visiting Katherine, he had lived all his life in Urapunga, and he knew no one he could trust in Katherine. It may be noted in this respect that the accused was in company with his partner at the time of his arrest – although that relationship had been of relatively short duration – and apparently staying in residential premises in Katherine. During his evidence in the voir dire hearing, the accused said he had family in Katherine and had been living there for perhaps two months prior to his arrest.
Even if the accused’s rationalisation for not taking up the offer of a prisoner’s friend is accepted, there is nothing in the evidence to suggest that the accused did not understand the role and purpose of a prisoner’s friend, or that the absence of a prisoner’s friend may have adversely affected the truth of the admissions. There is no basis on which to conclude that the absence of a prisoner’s friend bore on the reliability of the admissions subsequently made.
The question of unfairness gives rise to broader considerations. As defence counsel submitted, courts in the Northern Territory have over many years excluded evidence of admissions on the basis of non-compliance with the Anunga Guidelines (which have been incorporated into Police General Order Q2), if such non-compliance resulted in confessions being involuntary[7] or in breach of the common law discretions relating to fairness.[8] The question of admissibility and exclusion is now governed by the ENULA.[9]
In the context of s 90 of the ENULA, the ultimate focus of the inquiry is not whether there was a breach of the Anunga Guidelines or Police General Order Q2, but whether the conduct of police was somehow improper or the circumstances give rise to some strategic or forensic disadvantage to the accused.

General Order Q2 contains a number of qualifications. First, it notes that although the guidelines are not strict rules of law “members should endeavour to comply with the guidelines so far as is possible”. Secondly, although the guidelines apply to any person who is not as fluent in English as the average white person of English descent, not all persons of Aboriginal descent fall into this category. As already noted, there is no suggestion that English was not a language in which the accused was able to communicate with reasonable fluency. Thirdly, in determining whether and to what extent the guidelines have application investigators must have regard to their observations of and dealings with the suspect.
It is apparent from the circumstances that interviewing police determined the Anunga Guidelines did not apply to the accused, at least in so far as the interview did not take place in the presence of an interpreter. Counsel for the accused does not suggest that an interpreter was required in the circumstances. Despite that determination in relation to an interpreter, there was in some other respects compliance with the guidelines. As already described, care was taken in the administration of the caution. Care was taken to ensure that the accused was offered water and the use of a toilet. As already noted, he was offered opportunity to be accompanied by a prisoner’s friend. The fact that the offer was not conveyed to the accused using the precise formulation “prisoner’s friend” does not bear on the validity or efficacy of the offer. The explanation given in this case was adequate.
Having regard to the circumstances as they presented, it cannot be said that the accused’s failure to take up the offer of a prisoner’s friend – whatever his subjective reasons may have been for that – constituted improper conduct on the part of the interviewing police or gave rise to an identifiable and material disadvantage to the accused. It was not incumbent on interviewing police to explore the subjective reasons for the accused’s failure to take up the offer. Further, and even assuming that the accused had on such exploration proffered the reason he now gives, it would not have been incumbent on interviewing police to bring somebody in from Urapunga for that purpose. The fact that the Anunga Guidelines have been incorporated into Northern Territory Police General Order Q2 does not lead to any different conclusion.
Mental impairment
The accused’s second complaint is that he suffered from a mental impairment which made either the conduct of the interview unfair or the circumstances in which it was conducted such that it was not unlikely that the truth of the confession was affected.
The accused’s contentions in relation to metal impairment are based on two reports prepared by Dr Lester Walton, a consultant psychiatrist, dated 18 and 19 July 2017 respectively.
The first report in time was generated in relation to different proceedings concerning the accused. It records relevantly that the accused had a history of substance abuse primarily involving alcohol and cannabis, and a period of petrol sniffing in his late teens. There was also a history of auditory hallucination and delusions of infidelity on the part of his intimate partner dating back nine years. The accused was prescribed an antipsychotic medication for a short period of time while in prison, but that treatment was discontinued in July 2016. He had also suffered head injuries in a motor vehicle accident and another incident in which he fell from a tree.
The report concluded that the accused was reasonably articulate and of normal intelligence, but exhibited poor concentration and deficient memorising. There was some evidence of intellectual compromise which was likely attributable to alcohol and petrol abuse. There was no evidence of disordered thought or psychosis. He had the capacity to distinguish right from wrong and to control his actions. In the author’s opinion, the accused did not have a formal defence of mental impairment and was fit to be tried.
The second report in time was prepared in relation to these proceedings. The author recorded that the accused had admitted to inappropriate sexualised contact with the victim which was driven by sexual urges. It records the same history as the earlier report. It arrives at the same conclusions concerning the accused’s intelligence, mental state, capacity, and the possibility of brain injury and intellectual compromise attributable to substance abuse.
Senior Constable Strudders gave evidence that during the course of the record of interview the accused indicated he received a monthly injection at the clinic (discussed further below). On the basis of his general experience, Senior Constable Strudders was aware that injections of that nature were often administered for schizophrenic-type conditions. In light of that awareness, Senior Constable Strudders observed that there was no notation on the accused’s record of a diagnosis of mental illness, and observed that the accused was not, in his opinion, manifesting any symptoms of psychosis or other mental disturbance at the time of the arrest or interview. That was consistent with Senior Constable Drury’s observations at the time.
Senior Constable Dingle gave evidence that he has had dealings with the accused dating back to 2008 when he was stationed at Hodgson Downs. Over that time it had never come to his attention that the accused had ever suffered from a mental illness or that he had ever manifested symptoms of such illness. It was suggested to Acting Sergeant Gunderson, Senior Sergeant Malogorski and Senior Constable Drury during cross-examination that they were aware prior to the arrest of the accused that he was known to have some form of mental illness, possibly related to petrol sniffing. Their evidence was that they were unaware of any information to that effect. That is consistent with the evidence given by Senior Constable Strudders that there was no record to that effect on the police system.
Even if it is accepted that there was a possibility of brain injury and intellectual compromise (and it is put no higher than that in the reports), the relevant question is whether that bore on the reliability of the admissions or gave rise to unfairness. There is nothing in the medical evidence to suggest that the possibility of intellectual compromise made the accused an unreliable historian or gave rise to any disinhibition on his part.
To the extent the possibility of intellectual compromise may have given rise to the poor concentration and deficient memorising noted by Dr Walton, there is nothing in either the medical reports or the record of interview to suggest that the accused had a faulty recollection of the events in question, or that his powers of concentration were such as to undermine the reliability of the admissions or give rise to unfairness.
Inducement
The accused’s third complaint is that at the time he was apprehended police did not inform him of the reasons for his arrest and induced him to participate in a record of interview by saying, “Just give us a statement and we will let you go”.
There is a factual dispute concerning this matter. The evidence given by Senior Constable Studders is that when he and Acting Sergeant Gundersen attended at the accused’s residence he said words to the effect, “Is this about [name redacted]?” The evidence of Senior Constable Studders was that he then advised the accused that he was under arrest for assault and indecent assault. Senior Constable Studders’s evidence in that respect was challenged on the basis that he had prepared a recent statement concerning these events which contained details not supported by contemporaneous notes. That challenge must be seen in light of the fact that the statement he prepared in April 2017 recorded that he had advised the accused of the offences for which he was being arrested.
During the course of his evidence the accused denied saying words to the effect, “Is this about [name redacted]?” His evidence was that one of the police officers in attendance made the reference to the name “[name redacted]”. The accused also denied that he was told of the reasons for his arrest. However, he accepted during cross-examination that he was aware that he might be in trouble for dealings with both his former partner and the alleged victim in this proceeding, whose first name he knew to be [name redacted].
Acting Sergeant Gunderson’s evidence is that after the accused identified himself as Fabian Tyson he informed him, “You’re nicked”. He does not now recall what Senior Constable Studders said to the accused. Both officers in attendance at the actual arrest deny that the accused was ever told that if he gave a statement they would “let him go”. Although Senior Sergeant Malogorski was not involved in the actual arrest, he was present during the time the accused was walked from the residence to the police vehicle. He was close enough to hear any conversation with the accused at that time, and did not hear a statement in those terms. Similarly, Senior Constable Dingle’s evidence is that he did not hear any statement in those terms.
The accused’s evidence in cross-examination was ultimately that someone other than a police officer may have made the comment that if he gave a statement they would let him go. I find the accused’s evidence unconvincing insofar as it suggests that he was not told the reason for his arrest, that he had no understanding of the reason for his arrest, and that police induced him to give a statement by saying that would let him go once he had done so.
Even leaving those findings aside, there was no statutory or other obligation on police to inform the accused of the factual circumstances underlying the reason for his arrest. Section 127 of the Police Administration Act requires that the person be informed of “the offence for which he is arrested”, without need for language of a precise or technical nature. I find that was done. Section 140 of the Police Administration Act required only that police inform the accused that he did not have to say anything but that anything he did say or do might be given in evidence; and that he could communicate with or attempt to communicate with a friend or relative to inform the friend or relative of his whereabouts. For the reasons already given, I also find that was done.
Turning then to the alleged inducement, even if the accused’s account was accepted, in order to qualify as an inducement it must be established that “the words used by the person, viewed in a common sense way and according to the natural meaning, were capable of amounting to a threat, promise or offer of advantage”.[10] The words which the accused alleges were said were not of that character. Even if they were capable of that characterisation, the accused was subsequently subjected to a formal caution which would have alerted him to the fact that he was at risk of criminal charge.[11] There is nothing to suggest that in the application of the normal principles of legal causation the alleged “inducement”, even if made, actually induced the admissions that were made during the course of the interview.[12]
Legal representation
The accused’s fourth complaint is that he asked to speak with a lawyer prior to the conduct of the record of interview but no response was made by police to that request, or the request was denied.
The evidence given by those police officers involved in the arrest and interview of the accused is that the accused did not request opportunity to consult with a legal representative or otherwise seek legal assistance. Senior Constable Strudders said that no such request was made, and if it had been he would not have proceeded to conduct the interview until such time as the accused had opportunity to consult with a legal practitioner. He also accepted that if the accused had sought legal advice it is unlikely that the interview would have proceeded. Senior Constable Drury’s evidence is that no such request was made, and that if any such request been made it would have been recorded and acted on. Acting Sergeant Gunderson’s involvement was limited to the arrest of the accused and his escort to the police vehicle. He was not involved in the subsequent interview of the accused. Acting Sergeant Gunderson’s evidence is that the accused did not ask him if he could speak to a lawyer, and did not ask anybody else in his presence. Senior Sergeant Malogorski also did not hear any request by the accused to speak with a lawyer.
The accused gave evidence during the course of the voir dire hearing that, both before and during the course of the interview, he had requested to speak with a lawyer and had those requests constructively denied by silence on the part of police, or by them saying no lawyer was available. The accused says that the first request was made while he was in the watch house in the presence of a number of people. It is inherently improbable that a request was made in those terms and circumstances and not acted on or otherwise ignored. I do not accept the accused’s account and I find that there was no relevant failure on the part of police.
Although the accused’s failure to seek legal assistance was no doubt operative in his decision to proceed with the interview, there is nothing to suggest that his failure to do so bore on the reliability of the admissions subsequently made. That contention should be rejected. While the assessment of unfairness gives rise to broader considerations, as already stated, I do not accept the accused’s present assertion that a request was made and that there was a denial which gave rise to unfairness in the relevant sense.
Gratuitous concurrence
The accused’s fifth complaint is that he felt pressured to speak during the course of the interview even though he did not wish to speak. I have already set out the circumstances in which the record of interview was conducted and the caution which was administered at the commencement of that interview. During the course of cross-examination the accused accepted that he had been arrested by police on earlier occasions and that he had previously exercised his right to remain silent.
There is nothing to suggest that the accused did not understand his right to remain silent and the use to which the record of interview might potentially be put. It may be accepted that the accused is not well-educated in relative terms, and not of high intelligence in those same terms. Even allowing for those matters, a viewing of the electronic record of interview does not disclose any suggestion that the accused felt subject to pressure or did not wish to speak; or any admission made in response to a question by which the accused was manifestly confused or misled; or any suggestion that an answer containing an admission was given as the result of any form of gratuitous concurrence.
The accused first gave evidence-in-chief that he wanted to answer the questions, and that he was just playing along. Later in that examination, and in cross-examination, the accused stated that he answered questions under pressure. I reject the accused’s subsequent evidence to the effect that he felt pressured to speak against his will, and that he felt he had no choice but to answer the questions put to him.
Physical malaise
The accused’s final complaint is that he felt “dizzy” and “heavy in the head” at the time the record of interview was conducted. There is no explicit reference to this matter during the course of the interview, although interviewing police took some time to establish that the accused felt comfortable and was not ill or intoxicated.
The accused’s evidence given in the voir dire hearing was that he was suffering from illness at the time, and the effect of the illness was that he could not talk much during the course of the interview. However, in cross-examination he accepted that he was able during the course of that interview to correct police if they got something wrong in the questions they put to him.
During the record of interview, the accused confirmed that he had been given a drink and offered the opportunity to go to the toilet. The accused confirmed that he was not suffering from any illness or injury which would interfere with his capacity to answer questions. As already described, the accused then made a reference to a monthly injection he received at the clinic to address what he appeared to describe as a heat-related condition. The precise nature of that condition is unclear from the exchange, but there is nothing apparent from the accused’s presentation that he was suffering any ill effects from the condition at that time.
I have already detailed the observations made of the accused by interviewing police at the time. It is also apparent from the record of interview, and from Senior Constable Drury’s evidence, that the accused was assessed by a nurse at the time he was received into custody and prior to the commencement of the interview. The accused’s evidence in relation to that matter is that the nurse gave him some Panadol, but not that he made any complaint of feeling unwell. So far as the injections are concerned, the accused’s evidence is that they were first administered to him approximately six to eight years ago, and that he had not had an injection for some two or three months prior to his arrest. There is otherwise no clear evidence about the purpose of the injections, the nature of the medication, or the frequency with which the injections were administered.
Going back to the record of interview, the accused was then asked whether he was intoxicated and when he last drank alcohol. He replied that he hadn’t been drinking for a couple of weeks. He was then asked about drugs. He replied that he had a little bit of cannabis some days previously, but that he didn’t smoke cannabis much. He then confirmed that the only medication he received was the injection from the community clinic to which he had previously made reference. Interviewing police then again advised the accused that if at any time during the interview he did not feel comfortable or needed to go to the toilet he should let them know and they would stop the interview. The accused replied in the affirmative to that indication.
Having regard to the content of that recorded exchange, and the fact that he was assessed by a nurse prior to the interview, I reject the accused’s assertions that he was suffering from some form of illness during the conduct of the interview. Even if the accused’s present assertions that he felt “dizzy” and “heavy in the head” at the time the record of interview was conducted are accepted, there is nothing to suggest that the circumstances were such as to bear on reliability or give rise to unfairness.
Conclusion
I am satisfied on the balance of probabilities that the accused’s admissions in both interviews were made in circumstances which were not likely to adversely affect the truth of the admissions he made (leaving aside the question whether they were, in fact, true). To the extent there may have been any failure to comply with the Anunga Guidelines, that failure was not a circumstance, or did not constitute circumstances, which would adversely affect the truth of the admissions made. That is so even when that failure is considered in combination with the other complaints made by the accused. For that reason, the record of interview is not rendered inadmissible by the operation of s 85(2) of the ENULA.
For the reasons given under each head of complaint, I have also come to the conclusion that the accused has not discharged the onus of establishing unfairness in this case. Again, that is the case in relation to each complaint when considered individually, and when all complaints are considered in combination.
Ruling
The evidence of the electronic record of interview conducted on 27 February 2017 is admissible in the trial.

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[1]R v GP [2015] NTSC 53 at [30].

[2]R v Esposito (1998) 45 NSWLR 442 at 459-460; R v Rooke (Unreported, NSW Court of Criminal Appeal, Newman, Levine and Barr JJ, No 60550/96, 2 September 1997).

[3]Proof of any facts required to demonstrate circumstances giving rise to unfairness must be established on the balance of probabilities: ENULA, s 142(1).

[4](2007) 232 CLR 67.

[5]Em v R (2007) 232 CLR 67 at [109].

[6]See, for example, McDermott v R (1948) 76 CLR 501; R v Amad [1962] VR 545; and Foster v R (1993) 67 ALJR 550.

[7]See, for example, R v Echo (1997) 6 NTLR 51 at 53, 56-7.

[8]See, for example, R v Nagawalli [2009] NTSC 25 at [53], [72].

[9]See, for example, R v GP [2015] NTSC 53 at [25].

[10]R v Dixon (1992) 28 NSWLR 215.

[11]R v Bosman (1988) 50 SASR 365; Murphy v R (1989) 167 CLR 94; R v Dixon (1992) 28 NSWLR 215 at 226; Collins v R (1980) 31 ALR 257 at 310.

[12]R v Lee (1950) 82 CLR 133 at 146; Sparks v R [1964] AC 964 at 988; R v Noakes (1986) 42 SASR 489; R v Bosman (1988) 50 SASR 365 at 368; R v Dixon (1992) 28 NSWLR 215 at 225–226.