The State of Western Australia v Gibson - [2014] WASC 240

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- GIBSON [2014] WASC 240

CORAM: HALL J

HEARD: 3 - 11 APRIL 2014

DELIVERED : 4 JULY 2014

FILE NO/S: INS 161 of 2013

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
GENE GIBSON
Defence

Catchwords:

Criminal law - Admissibility of police interviews with accused - Whether interviews voluntary - Whether Criminal Investigation Act 2006 (WA) breached - Whether evidence should be excluded in exercise of unfairness discretion - Aboriginal accused - Partial speaker of English - Failure to record part of interview - Failure to use interpreter

Legislation:

Criminal Investigation Act 2006 (WA), s 10, s 118, s 137, s 138

Result:

Interviews inadmissible

Category: B

Representation:

Counsel:

Prosecution : Ms A J Burrows
Defence: Mr C J N Eberhardt & Mr D D Brunello

Solicitors:

Prosecution : Director of Public Prosecutions (WA)
Defence: Aboriginal Legal Service (WA)

Case(s) referred to in judgment(s):

Arthurs v The State of Western Australia [2007] WASC 209
Clarke (1997) 97 A Crim R 414
Collins v The Queen (1980) 31 ALR 257
George v Rockett [1990] HCA 26; (1990) 170 CLR 104
McDermott v The King (1948) 76 CLR 501
Njana (1998) 99 A Crim R 273
Norton v The Queen [No 2] [2001] WASCA 207; (2001) 122 A Crim R 104; (2001) 24 WAR 488
R v Anunga (1976) 11 ALR 412
R v Bodsworth [1968] 2 NSWR 132
R v Buetti (1997) 70 SASR 370
R v Butler [No 1] (1991) 102 FLR 341
R v Ireland (1970) 126 CLR 333
R v Lee (1950) 82 CLR 133
R v Swaffield [1998] HCA 1; (1998) 192 CLR 159
The State of Western Australia v Smith [2010] WASC 279
Van der Meer v The Queen [1988] HCA 56; (1988) 82 ALR 10
Webb (1994) 74 A Crim R 436
Wendo v The Queen (1963) 109 CLR 559
Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1

HALL J: Gene Gibson (the accused) is charged that on 26 February 2010, he murdered Joshua Timothy Warneke (the deceased). He has pleaded not guilty to that charge and the trial is listed to commence in Broome on 18 August 2014.
By an amended application dated 21 March 2014, the accused seeks a ruling that interviews between he and the police are inadmissible because his participation was not voluntary and because the police failed to comply with the Criminal Investigation Act 2006 (WA) (CIA). Alternatively, it is submitted that it would be unfair to the accused to admit evidence of the interviews and they should be excluded in the exercise of the court's discretion.
The difficulties that can arise when interviewing Aboriginal suspects whose first language is not English have long been recognised. As long ago as 1976 Forster J in R v Anunga (1976) 11 ALR 412 referred to these problems and the special care that police officers needed to take in ensuring that interviews were voluntary and fair. This is a case in which those types of difficulties were manifest and are critical to the question of whether the interviews are admissible.

Background

The deceased was a 21‑year‑old man who resided in Broome at the time of his death. At about 2.45 am on Friday, 26 February 2010, he was walking home having spent the evening at a local hotel and nightclub. After attending the local McDonald's restaurant where he purchased food, the deceased began walking towards his home which was situated in the Roebuck Estate. He did not arrive home.
The body of the deceased was discovered by a local taxi driver by the side of the Old Broome Road on the morning of 26 February 2010. A post‑mortem examination was conducted and the opinion of the pathologist was that the cause of death was head injury in a man with acute alcohol intoxication. The head injuries included bruises, abrasions, lacerations to the skin and extensive fracturing of the skull with injury to the brain.
The accused was not initially identified by police as a person of interest in the investigation. The circumstances in which he came to police attention are significant and will be canvassed later in these reasons. It is sufficient to note at this point that it was not until 2012 that police investigators decided to interview the accused.
The accused normally resides in the Kiwirrkurra Community in the Gibson Desert. On 16 August 2012 police from the Major Crime Squad travelled to Kiwirrkurra to interview him. It had been decided prior to arrival that he would be treated as a witness only. As a consequence he was not initially arrested or cautioned and the interview was not recorded from the outset. Nor were the services of an interpreter utilised; the police having decided beforehand that an interpreter was unnecessary.
An unrecorded interview was conducted at the Kiwirrkurra Community Office. Towards the end of the unrecorded interview it is alleged that the accused made an admission to the effect that he had struck the deceased with a vehicle. He was then formally arrested on suspicion of murder and an audio visual recorded interview was commenced.
Mr Simon Butler, a senior member of the Kiwirrkurra Community, attended as an interview friend. During the recorded interview, Mr Butler and the accused spoke to each other in the local Aboriginal language, Pintupi. The police were not aware of what Mr Butler said to the accused.
At an early stage in the recorded interview the accused was advised that he had a right to make contact with a lawyer. He exercised that right and spoke by telephone to a lawyer from the Aboriginal Legal Service in Kalgoorlie. The lawyer then spoke to police and advised them that the accused did not wish to answer questions. Despite this police continued with the interview. Over a period of approximately six hours, including breaks, the accused made further admissions regarding his involvement in the death of the deceased.
At the conclusion of the interview at Kiwirrkurra the accused remained in the custody of the police and was taken in the back of a police wagon to the Kintore Police Station, approximately 200 kms to the east, where he was locked in a cell overnight. On the following morning the accused was flown by police aircraft to Broome. Later that day the accused was again interviewed at length. This included taking the accused to relevant locations in Broome. Further admissions were made. Neither an interpreter nor an interview friend were utilised during the interview in Broome.

Grounds of the application

The grounds upon which the accused contends that the interviews are not admissible are as follows:
1.The unrecorded interview/admissions
1.The accused objects to the admission into evidence at his trial of all admissions allegedly made by him in the unrecorded interview at Kiwirrkurra on 16 August 2012 on the grounds that:
a.The police were obliged, but failed, to confer the accused the rights enumerated in ss 137(3)(c) & (d) and 138(2)(a), (b), (c) & (d) of the CIA.
Particulars
i.During the unrecorded interview the accused was, in fact, in police custody and under arrest as a suspect in respect of the unlawful killing of Mr Warneke;
Further, or in the alternative
b.The police were obliged under s 118 of the CIA, but failed, to audio-visually record the admissions.
Particulars
i.Prior to and during the unrecorded interview the police had reasonable grounds to suspect the accused had committed the offence of, at least, the unlawful killing of Mr Warneke;
ii.There was no reasonable excuse for the absence of an audio‑visual recording;
Further, or in the alternative
c.In the event the accused was voluntarily accompanying the police at the time of the unrecorded interview, the police were obliged under s 10 of the CIA, but failed, to use a qualified interpreter or other qualified person to inform the accused of his rights under s 28 of the CIA.
In each case the unrecorded admissions are inadmissible under s 154 of the CIA. The desirability of admitting the evidence does not outweigh the undesirability of admitting the evidence (s 155 of the CIA).
Further, or in the alternative:
d.The accused's participation in the unrecorded interview was not voluntary;
Further, or in the alternative:
e.The unrecorded admissions should be excluded in the exercise of the discretion as it would be unfair to the accused to admit them into evidence against him at his trial.
II.The Kiwirrkurra VROI
2.The accused objects to the admission into evidence at his trial of all of the Kiwirrkurra VROI dated 16 August 2012 on the grounds that:
a.The Kiwirrkurra VROI was obtained in contravention of the CIA.
Particulars
i.Police were obliged, pursuant to ss 10, 137(3)(d) and 138(2)(d), but failed, to afford the accused - a person unable to understand or communicate in spoken English sufficiently - his right not to be interviewed until the services of an interpreter or other qualified person were available; and/or
ii.Police were obliged pursuant to s 138(2)(c) and s 138(4) to afford the accused, who had requested to speak to a lawyer, a reasonable opportunity to do so. Police continued to question the accused who was detained by them thereby preventing him from doing so.
b.The accused's participation in the Kiwirrkurra VROI was not voluntary.
c.The Kiwirrkurra VROI should be excluded in the exercise of the discretion on the grounds that it would be unfair to admit it against the accused at his trial.
Particulars
i.The police failure to adequately record all interaction with the accused, their failure to use a qualified interpreter, their failure to use an appropriate interview friend and their failure to respect the accused's express desire to speak to his lawyer and later his wish to remain silent make it impossible to accurately determine whether or not the confessions were voluntary; and/or whether the accused would have made the confession at all had his procedural rights been respected.
III.The Broome VROI
3.The accused objects to the admission into evidence at his trial of all of the Broome VROI dated 17 August 2012 on the grounds that:
a.The Broome VROI was obtained in contravention of the CIA:
Particulars:
i.Prior to the Broome VROI the accused was unlawfully confined in the back of the police wagon and in a cell at the Kintore police station contrary to s 139(3) of the CIA;
ii.Prior to and at the time of the Broome VROI the accused was unlawfully detained in contravention of s 140 of the CIA;
iii.Police were obliged, pursuant to ss 137(3)(d) and 138(2)(d) of the CIA, but failed, to afford the accused - a person unable to understand or communicate in spoken English sufficiently - his right not be interviewed until the services of an interpreter or other qualified person were available;
iv.The Broome VROI is inadmissible under s 154 of the CIA. The desirability of admitting the evidence does not outweigh the undesirability of admitting the evidence (s 155 of the CIA).
b.The accused's participation in the Broome VROI was not voluntary.
c.The Broome VROI should be excluded in the exercise of the discretion on the grounds that it would be unfair to admit it against the accused at this trial.
Particulars
i.The police failure to adequately record all interaction with the accused, their failure to use a qualified interpreter, their failure to use an appropriate interview friend, the unlawful detention of the accused, the inducement offered to the accused and the failure of police to respect the accused's express desire to speak to his lawyer and later his wish to remain silent made it impossible to accurately determine whether or not the confessions were voluntary; and/or whether the accused would have made the confession at all had his procedural rights been respected.
The logical first question is whether the interviews were voluntary. If they were not they are inadmissible and no question of discretionary exclusion arises. The second question is whether there have been breaches of the CIA and, if so, whether the discretion to admit the evidence under s 155 of the CIA should be exercised. The third question is whether the discretion to exclude evidence on the grounds that to admit it would be unfair to the accused should be exercised.
A number of issues arise that are common to all of the interviews and also common to the questions of voluntariness and the exercise of discretion.
Those issues are:
(1)Should the accused have been treated as a suspect from the outset?
(2)Was an interpreter required? and
(3)Was the accused subjected to coercion or pressure to participate in the interviews?
Other issues are also raised by the application, but those referred to above were the main focus of the evidence called at the directions hearing.

Should the accused have been treated as a suspect? - the evidence

As has been noted, the police decided prior to travelling to Kiwirrkurra that the accused was to be approached as a witness, rather than a suspect. This had a very significant effect on the way in which the interview was initially conducted and on what rights the accused was afforded. If the accused should properly have been treated as a suspect from the outset then the failure to record the interview may provide a basis for excluding evidence relating to it.
The accused was not identified as a person of interest in respect of the police investigation until 2012. This was as a result of him being named by a number of other people interviewed by the police earlier that year. The relevant witnesses were Rex Cotchilli, Edwin Mandijarra, Tristan Xavier Nagomarra, Douglas Maggie, Russell Baadjo and Madeleine Nowee. A statement taken from Anne Molly Nungoray in 2010 was also relevant. There were some inconsistencies between these witnesses, but a feature common to a number of them was that the accused had been driving a stolen vehicle in Broome on the relevant night and had collided with a caucasian man who was walking by the side of the road.
On 15 February 2012, Mr Cotchilli was interviewed by police. He initially denied any knowledge of the incident. However, he later said that he was with three other people in a vehicle when it struck the deceased. He said that he had been in Broome drinking with family at Kennedy Hill. His nephews, the accused and Mr Mandijarra, arrived in a stolen car. He said he went with them and another nephew, Mr Maggie, for a drive around the town of Broome. He said that he and Mr Maggie were sitting in the back of the vehicle. He said that he fell asleep and was awoken by a loud bumping noise and that this occurred on the main road leading out of Broome. He said that he spoke to the accused and Mr Mandijarra about what had happened and the accused told him that they had just hit a white man with the car. Mr Cotchilli gave a statement in which he nominated the accused as the driver of the vehicle at the time he heard the bumping noise.
Mr Mandijarra was interviewed on 16 and 26 February 2012. He said that on the night in question the accused and Mr Nagomarra picked him up in a small red stolen vehicle. He said that the accused was the driver and he sat in the front passenger seat with Mr Nagomarra in the back. He said they drove around Broome and to the One Mile Aboriginal Community. In his statement on 26 February he described seeing a white male wearing a black T‑shirt walking on the left side of the road. After staying a short time at One Mile they decided to return to Broome. He said that along the road he saw a white male lying on the side of the road. He said they did not stop as they believed he was drunk. He denied any involvement in the incident or that the vehicle had hit the deceased. He also denied that Mr Cotchilli had been present with them that evening.
Mr Nagomarra (also known as Xavier Williams) was interviewed on 18 February 2012. He stated that at about 9.00 pm on 25 February 2010, he stole a red hatchback from an address in Broome. He said he then picked up Mr Baadjo and the accused. The accused drove the car to an address in Norman Street where they dropped off Mr Baadjo. They then picked up Mr Mandijarra on Anne Street. As they were driving along Old Broome Road the accused called out that a person was sleeping by the side of the road. Mr Nagomarra said that he did not see the person as he was sitting in the backseat. He said he told the accused to keep driving. They drove to One Mile, where they stayed for a short time before deciding to return home. On the way back Mr Nagomarra saw a man lying on the side of the road. He said the accused did not stop the car and they continued to drive back to Broome. He said he later asked the accused and Mr Mandijarra if they had hit the man with the car but they both denied it. Mr Nagomarra denied that he had any involvement in the incident, or any knowledge of the vehicle hitting the deceased. He also denied that Mr Cotchilli was with them that evening.
Mr Maggie was interviewed on 15 February 2012. He said that he had no knowledge of the incident. He did remember speaking to the accused around the time of the deceased's death and the accused had told him that he had been driving a stolen car that night.
Mr Baadjo was interviewed on 19 February 2012. He denied all knowledge of the incident. However, he said he had spoken to the accused about the accused stealing a car some time ago in Broome together with Mr Mandijarra and Mr Nagomarra. He could not provide any details of the stolen car.
Ms Nowee was interviewed on 19 February 2012 and provided a statement to police. She said that she had a telephone conversation with the accused who she described as a grandson. She said that the accused told her that he was driving a stolen car around Broome with 'some other boys' when he saw a 'white bloke' walking along the road. She said that the accused told her that all of a sudden he was too close to miss the man and bumped him with the car. She said that the accused told her that they had got out of the car and dragged the man off of the road and that the man was shaking at the time. They then returned to the vehicle and drove to the One Mile Community.
There was independent evidence that a red Nissan Pintara hatchback was stolen from a house in Broome between 9.00 pm on 25 February 2010 and 7.00 am on 26 February 2010. The vehicle was later recovered and subjected to a forensic examination. Two fingerprints were located but they produced no evidence relevant to these proceedings. The vehicle has since been dismantled and sold as scrap preventing any further forensic testing.
Ms Nungoray gave a statement to police on 30 June 2010. She said that in early 2010 the accused and Mr Baadjo had told her that they were driving a stolen black Hilux vehicle towards the One Mile Community when they ran over a white man near the roundabout near the Tourist Bureau in Broome.
After the accused was interviewed and made admissions to police in 2012 a number of the witnesses were reinterviewed. Mr Nagomarra stated that he had seen the accused hit the deceased in the head with a pole on the night in question. Mr Mandijarra stated that the accused had told him he struck the deceased. Mr Cotchilli said that he had been confused when giving his earlier statement and that he was not in the car at the relevant time.
To summarise, at the time that the police were considering interviewing the accused they had been told by Mr Mandijarra and Mr Nagomarra that they were in a stolen car with the accused on the relevant night but that there had been no contact with the deceased. Mr Cotchilli said that he had been in the car and that there was a bang which he was told by the accused was caused by running down a 'white bloke', though others said that Mr Cotchilli was not present in the car. However, there was also evidence from Ms Nowee and Ms Nungoray that the accused had separately admitted to both of them that he had run down a white man in Broome.

On 22 May 2012, Detective Sergeant Graeme Johnston prepared an inquiry report. In that report he summarised the available evidence and said:
There are multiple sources nominating [the accused] as being responsible for the death of [the deceased]. Although the sources differ in some details, what is consistent is that [the accused] is nominated as being the driver of a vehicle that has struck [the deceased]. (exhibit P3)
The report noted that there was no physical material to implicate the accused in the death of the deceased. Detective Johnston also noted that the cause of the injuries sustained by the deceased was inconclusive, but that the forensic pathologist had indicated that it was highly unlikely that the injuries could have resulted from being struck by a motor vehicle. The conclusion of the report was that the accused remained a priority person of interest and that:
[A]ttempts should be made to conduct an audiovisual record of interview with [the accused] to ensure any confessional evidence is captured in an admissible format. Prima facie evidence exists in relation to the stolen motor vehicle and, at this time [the accused] cannot be eliminated as being involved in the death of [the deceased]. (exhibit P5)
At the time the report was written the whereabouts of the accused were not known to the police. It was believed that he could be travelling between Kiwirrkurra and the Northern Territory. Enquiries were made with a police officer stationed at Kintore. On 30 July 2012, information was received that the accused had returned to Kiwirrkurra. A decision was then made to send police officers to Kiwirrkurra to interview the accused.
In the event, information was then received that the accused had again left the community and police did not end up travelling to Kiwirrkurra until 16 August 2012, after the accused had returned. In the meantime police officers made plans for the intended interview. The interviewing officers were to be Detective Senior Constable Philip Gazzone and Detective Senior Constable Rodney Shannon. On 11 July 2012, Detective Gazzone prepared an interview plan (exhibit P24) and Detective Shannon prepared an action plan (exhibit D9). Both of these documents contemplated that the accused would be arrested on suspicion of murder and that he would be so advised at the commencement of the interview.
The officer in charge of the investigation, Detective Sergeant Cameron Western, reviewed the plans and decided that, on his assessment of the evidence, there was no basis for reasonably suspecting that the accused had been involved in the murder of the deceased. He came to this conclusion because of inconsistencies in the statements of other witnesses and because the forensic evidence did not support that the deceased had been struck by a vehicle. A decision was also made that the accused would not be charged with stealing the motor vehicle or with driving it whilst unlicensed. In these circumstances, Detective Western decided that the accused should be interviewed as a witness, not as a suspect. This was reflected in a new action plan dated 3 August 2012 (exhibit D8). The new action plan stated:
Based on investigations [the accused] is being spoken to in order to ascertain his knowledge of the circumstances surrounding the death of [the deceased]. At this stage there is not sufficient suspicion to indicate that [the accused] was involved in the death of [the deceased]. The decision is '[the accused] will be engaged as a witness' unless he makes a statement or indicates he has involvement which causes a reasonable suspicion. At that point he is to be immediately cautioned.
A little later in the action plan, the following was stated:
If at any stage [the accused] gives an indication that he has run someone over or committed any other offence he is to be immediately cautioned and interviewed on video.
It is not immediately apparent why the police believed that the accused needed to be cautioned if he admitted to police to running over the deceased when they did not believe that admissions to the same effect to Ms Nowee and Ms Nungoray required such an approach. If those earlier admissions were not thought to be sufficient to raise a reasonable suspicion that the accused was involved in the murder of the deceased then why would an admission to police to the same effect be any different? It appears inconsistent to assert that the forensic evidence as to the cause of death excluded a reasonable suspicion but that if the accused made an admission directly to the police that he ran down the deceased he should be arrested and cautioned. This is, in fact, what occurred. In the unrecorded interview at Kiwirrkurra the accused made an admission to running down the deceased and was then arrested, cautioned and a recorded interview commenced.

Should the accused have been treated as a suspect? - relevant law

The rights of a person who is merely accompanying the police and is not treated as a suspect are limited. The obligation of the police in respect of such persons is to inform them that they are not under arrest, that they do not have to accompany the police and that they are free to leave at any time. Section 28 CIA provides:
Persons accompanying officers to be informed of rights
(1)An officer who requests a person who is not in lawful custody to accompany the officer or another officer for the purposes of assisting in the investigation of an offence must inform the person and be satisfied that the person understands -
(a)that he or she is not under arrest; and
(b)that he or she does not have to accompany the officer concerned; and
(c)that if he or she accompanies the officer concerned, he or she is free to leave at any time unless he or she is then under arrest.
(2)Subsection (1) does not apply to or in respect of a person to whom a requirement has been made by a member of the Police Force under the Road Traffic Act 1974 section 66.
Where a person is suspected of having committed an offence admissions made to the police are inadmissible unless they are the subject of an audiovisual recording or there is a reasonable excuse for not recording the admission or the court makes an order admitting the evidence under s 155 CIA: see s 118 CIA. However, this requirement does not apply to an admission made by a person before there are reasonable grounds to suspect that he or she had committed the offence. Section 118 CIA provides:
Admission in serious case inadmissible unless recorded
(1)In this section -
admission means an admission made by a suspect to a police officer or a CCC officer, whether the admission is by spoken words or by acts or otherwise;
adult means a person who has reached 18 years of age;
child means a person who is under 18 years of age;
reasonable excuse, for the absence of an audiovisual recording of an admission, includes -
(a)the admission was made when it was not practicable to make an audiovisual recording of it;
(b)equipment to make an audiovisual recording of the admission could not be obtained while it was reasonable to detain the suspect;
(c)the suspect did not consent to an audiovisual recording being made of the admission;
(d)the equipment used to make an audiovisual recording of the admission malfunctioned.
(2)This section applies in respect of a suspect who is -
(a)a child charged with an indictable offence, irrespective of whether, if an adult were charged with it, it could be dealt with by a court of summary jurisdiction; or
(b)an adult charged with an indictable offence that cannot be dealt with by a court of summary jurisdiction.
(3)On the trial of the suspect for the offence, evidence of any admission by the suspect is not admissible unless -
(a)the evidence is an audiovisual recording of the admission; or
(b)in the absence of an audiovisual recording of the admission -
(i)the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for the absence; or
(ii)the court decides otherwise under section 155.
(4)Subsection (3) does not apply to an admission by a person made before there were reasonable grounds to suspect that he or she had committed the offence.
For the purpose of pt 11 of the CIA, in which s 118 is contained, a suspect means a person suspected of having committed an offence, whether or not he or she has been charged with the offence. Suspicion is a state of conjecture or surmise where proof is lacking. Facts which can be the basis of a reasonable suspicion may be insufficient to ground a belief. A suspicion must have some factual basis but it may be merely a positive feeling of actual apprehension or mistrust or a slight opinion without sufficient evidence to establish it: George v Rockett [1990] HCA 26; (1990) 170 CLR 104, 115. In South Australia it has been held that fairness will require a caution if the person's possible involvement in the crime remains under consideration, even though they may not be regarded as a suspect: R v Buetti (1997) 70 SASR 370, 378.
Suspects who are arrested are also entitled to the rights set out in s 137(3) and s 138(2):
137. Arrested people, rights of
…
(3)The arrested person is entitled -
(a)to any necessary medical treatment; and
(b)to a reasonable degree of privacy from the mass media; and
(c)to a reasonable opportunity to communicate or to attempt to communicate with a relative or friend to inform that person of his or her whereabouts; and
(d)if he or she is for any reason unable to understand or communicate in spoken English sufficiently, to be assisted in doing so by an interpreter or other qualified person.
138.Arrested suspects, rights of
…
(2)In addition to the rights in section 137 an arrested suspect is entitled -
(a)to be informed of the offence for which he or she has been arrested and any other offences that he or she is suspected of having committed;
(b)to be cautioned before being interviewed as a suspect;
(c)to a reasonable opportunity to communicate or to attempt to communicate with a legal practitioner;
(d)if he or she is for any reason unable to understand or communicate in spoken English sufficiently, not to be interviewed until the services of an interpreter or other qualified person are available.

Should the accused have been treated as a suspect? - conclusion

If police officers suspect a person of having committed an offence the requirement to record any admissions is clear. Similarly if police officers arrest a person the entitlement of that person to certain rights is also clear. In this case the State submits that the police did not initially consider that the accused was a suspect and did not arrest him until he made an admission to running down the deceased.
The position is more complicated than the State's submissions suggest. There was information available to the police that indicated that the accused was responsible for the death of the deceased. Detectives Johnston, Gazzone and Shannon took the view that the accused was a suspect. However, Detective Western took a different view and his view prevailed because he was the senior officer. The question of whether a person is suspected of having committed an offence is not, however, some act of formal decision making - it is a question of fact.
At the time the police were planning to travel to Kiwirrkurra to interview the accused the information available to them was sufficient to support a reasonable suspicion that the accused was responsible for the death of the deceased. The fact that his admissions to Ms Nungoray and Ms Nowee were to having run down the deceased and this was not consistent with the forensic evidence did not mean that those admissions could be completely dismissed. There was an obvious possibility that the accused had truthfully admitted to others that he was responsible for the death of the deceased, even though he may have been untruthful as to the mechanism by which that death occurred. This was a possibility that was accepted by Detective Sergeant Johnston in cross‑examination. It was also clearly what influenced Detectives Johnson, Gazzone and Shannon when preparing planning documents.
In my view, the available information was sufficient for the police to reasonably suspect that the accused had committed the offence of murder. Furthermore, the officers who conducted the interview in fact had such a suspicion prior to travelling to Kiwirrkurra. In the circumstances the appropriate course would have been to arrest the accused, afford him his rights under s 137 and s 138 and record any interview from the outset.
I accept that the decision by Detective Western to treat the accused as a witness was honestly made and that there was no intention to evade the requirements of the law. Nonetheless, that decision was mistaken. That error did not affect the fact that the accused was a suspect.
The failure to treat the accused as a suspect had very significant consequences. The initial interview was not recorded, notwithstanding the ready availability of recording equipment. The accused was not afforded his right to an interpreter. He was not afforded his right to communicate with a lawyer until much later. He was not told at the outset of his right to silence or the fact that answers that he gave could be used in evidence.

Was an interpreter required? - the evidence

At the time he was interviewed the accused was 21 years of age. He is an Aboriginal man who has lived most of his life at Kiwirrkurra. Kiwirrkurra is an isolated Aboriginal community in the Gibson Desert, approximately 1,200 km east of Port Hedland and 850 km west of Alice Springs. The accused's ability to communicate in and understand English was an obvious issue that needed to be addressed before any interview was undertaken.

Evidence of Sergeant Mark Pring

Prior to travelling to Kiwirrkurra to interview the accused, Detective Gazzone contacted Sergeant Mark Pring, the officer in charge of the Kintore police outpost, to determine whether the accused spoke English and what his level of understanding of English was. Sergeant Pring advised that the accused had a good understanding of English and an interpreter would not be required.
Sergeant Pring gave evidence that the first contact he had with the accused was when a community clinic was opened at Kiwirrkurra. His account of the conversation was as follows:
What did you do?‑‑‑I walked over to [the accused] and had a brief conversation with him.
All right. Can you recall what you said to him?‑‑‑Yes. I said, 'You're like a bush turkey. Every time I come to town you fly away'.
What did he do?‑‑‑Just laughed.
Did you say anything else to him?‑‑‑I just had a brief conversation - more of an ice‑breaker - about nothing in particular.
Was anything else said?‑‑‑No. I think I kept it fairly brief on that first time of talking to him.
All right. So you just talked - did you talk to him about the police at all?‑‑‑No (ts 329 ‑ 330).
Sergeant Pring said that he had other conversations with the accused 'over the next couple of weeks'. He said that he told the accused that there were officers from Perth that wanted to talk to him and asked whether he was willing to do so. Sergeant Pring said that the accused responded that he was and asked what it was about. Sergeant Pring said that he did not know. Sergeant Pring then advised Detective Gazzone that he had made contact with the accused.
Sergeant Pring said that he saw the accused on other occasions around the community when he was there. He said he spoke to him
about general community stuff, like, you know, was he playing in the band. There was [sic] upcoming football tournaments. Was he going to play in the football; was he playing in the band. Just general community talk (ts 332).
Sergeant Pring said that these conversations were in English and that he had no difficulty understanding what the accused was saying. He said that the accused was a shy young man and that he engaged in these casual conversations to build some rapport.
In cross‑examination, Sergeant Pring accepted that the community clinic had been opened on 14 August 2012. That was only two days before the police arrived to conduct the interview with the accused. This cast significant doubt on whether Sergeant Pring's recollection of having several conversations with the accused over a number of weeks was correct. In any event it would seem that any conversations were brief and casual in nature.
Sergeant Pring also travelled to Kiwirrkurra with the interviewing officers on 16 August 2012. He located the accused, told him that the detectives had arrived and confirmed that he was still happy to talk to them. He said he then took the accused to the community centre and introduced him to Detectives Gazzone and Shannon. He stayed to make sure that the accused was comfortable because:
[The accused] was fairly shy and obviously I had taken some time to try and find him to build a - a gentle rapport with him. I just wanted to make sure that they were - he was comfortable in their presence (ts 337).

Evidence of Helen Tindall

Ms Helen Tindall gave evidence that in 2005 she was working in Alice Springs as a nurse. She met the accused at that time as he was the cousin of a boy who she was acting as the foster mother for. She said that between 2005 and 2012, she had infrequent contact with the accused. This was probably two to three times a year in Alice Springs. Sometimes he would visit her at her office; other times he would stay at her house.
Ms Tindall said that she would communicate with the accused in English and doing so was 'relatively easy'. She said that the accused was 'a very quiet young guy. But he seemed to understand me and we could converse' (ts 278).
Ms Tindall said that in July 2012, the accused had stayed at her house for a few weeks. On one morning they had walked into Alice Springs to do some shopping and had talked all the way into town and on the way back. They talked about the accused's cousin being in trouble with the law. The accused then told her about an incident in Broome when he had been walking and had seen a dead man on the road.
In cross‑examination Ms Tindall accepted that the subjects of her conversations with the accused were basic things and that she was not trained in assessing the language skills of people who speak English as a second language.

Evidence of English language testing

Ms Maria Doyle was called by the defence. She holds a master's degree in education with particular emphasis on teaching English as a second language. She is experienced in assessing and preparing candidates who are tested for language proficiency for university entrance.
The accused was tested at Casuarina Prison by Ms Doyle on 15 October 2013 using the International Second Language Proficiency Ratings test (ISLPR). The ISLPR test was developed by Dr David Ingram 30 years ago. The test has four components that assess the skills of listening, speaking, reading and writing. In this case, Ms Doyle was asked only to administer the listening and speaking components. The test consists of a face‑to‑face interview in which a series of questions are asked which attempt to push the candidate to their language ceiling. The questions are not scripted and appear to follow the natural flow of a conversation. In this case the administration of the test was videotaped and subsequently reviewed by Dr Ingram. Proficiency is assessed using a scale from 0 to 5 with pluses or minuses used within that scale.
In a joint report prepared by Ms Doyle and Dr Ingram, the accused was rated at 1- for speaking and 1 for listening. A person with 1- speaking proficiency is able to satisfy their own immediate predictable needs using predominantly formulaic language. Such a person can communicate simple, predictable personal information about themselves and significant others. Their original utterances are telegraphic and distorted; production is very hesitant with frequent long pauses between words and repetition of the question. At this level language usually consists of short phrases and longer utterances tend to be fractured with incomplete grammar.

The accused's language behaviour during the testing featured the following:
1.Answers were generally one or two word responses with some longer utterances that were fractured or had grammatical errors.
2.Very short responses that required a prompting question.
3.He was not able to extrapolate or extend answers without prompting or questioning.
People with a level 1 listening ability are able to understand enough to participate in very simple face‑to‑face conversations with a sympathetic or experienced member of the public. Such conversations are usually directly related to the person's basic transactional needs or on very familiar topics. Such people usually understand only when the content of an utterance is predictable. Understanding of information is usually very imprecise. The ability to follow a meaning across a series of utterances is usually only possible where those utterances are very simple, restricted in number and where the context provides strong support. Generally, such people require novel utterances to be slow and deliberate and repetition, paraphrase and the support of mime and gesture may be required. Such a person can understand basic questions and statements in simple transactions in familiar situations. They can understand questions about related basic likes and dislikes. Provided they are supported by the context imposed in a relatively concrete and focussed form, such people can understand simple questions about the past, present and future in regard to themselves and highly significant others.
During testing, the accused generally responded appropriately to questions in simple present and past tenses, present perfect tense and where quantity was involved. He misinterpreted or answered inappropriately some simple questions, often negating what he had just said in another sentence.
Ms Doyle and Dr Ingram were also asked to review and offer an opinion on the recorded police interviews. They said that the initial questions regarding name, age, place of residence and basic family information were of a level that the accused was capable of understanding. However, the questioning then moved to more complex questions which may not have been readily understood. The language used by the police was such as to require a proficiency of at least level 2 to confidently say that the listener would probably and regularly have understood what was being said. The test was applied some 12 months after the interview, but there was no reason to think that in that period the accused's English proficiency had regressed.
Ms Doyle and Dr Ingram took into account factors which may affect the accuracy of an assessment. They included the relevance of the test content to the interviewee, the degree of difficulty of a particular test, the familiarity or lack of familiarity of the examiner with the candidate's own variety of English, the experience of the examiner and test error. There are also factors that may be relevant to the particular candidate, such as a willingness to cooperate, mood, nervousness or shyness. They did not consider that such factors had any significant bearing on the reliability of their findings.
In the present case, the test results accorded with the assessment of the police interviews. Ms Doyle was taken to a number of the questions that were put to the accused which elicited more significant admissions. She expressed the view that these questions were of a level of complexity as to be unlikely to have been understood by the accused.

Evidence of Dr Diana Eades

The defence also called Dr Diana Eades, adjunct professor of linguistics at the University of New England. Dr Eades is the author of three books about language in the legal process. She is also the author of a number of other books, including Aboriginal Ways of Using English (2013, Aboriginal Studies Press). She is the author of numerous book chapters, journal articles and encyclopaedia entries. Since 2006 she has been co‑editor of the International Journal of Speech Language and the Law. Her research in the last two decades has specialised in language in the legal process, especially English as spoken by Aboriginal people. She has been vice president of the Australian Linguistic Society and at various times president, vice president and secretary of the International Association of Forensic Linguists. Her expertise was not in dispute.
Dr Eades was asked to consider the language used by the accused in the recorded police interview. She was asked, in particular, to give an opinion as to whether the accused's language indicated that he understood his rights, whether the language used by the police was likely to have been understood by the accused and the extent to which Mr Butler's assistance may or may not have helped the accused in understanding his rights.
As regards the accused's English proficiency, Dr Eades said that she understood the accused to be a Pintupi man from the remote Western Desert Aboriginal community of Kiwirrkurra. She described this as one of the most isolated communities in Australia and the home of some of the last Aboriginal people to have seen or met white people, a few as late as 1984. She had access to school records that showed that the accused began school at Kiwirrkurra in 2000, when he was nine years old, and left school in 2009 when he was 18. There was an absence from the Kiwirrkurra school between 2004 and 2007. It appears for at least some of this time he attended the Yirara College in Alice Springs.
Dr Eades stated that whilst in Kiwirrkurra, the accused's opportunities to speak English would have been very limited as this is one of the Western Desert Aboriginal communities known for the strength of its Aboriginal language as well as its remoteness and limited used of English. Reports from Yirara College indicated that the accused had made some progress with oral English. However, his participation in school was largely unsuccessful and included him running away halfway through one term and attending school for only 15 days in another.
Dr Eades' opinion was that at the time of the police interview the accused was not a fluent speaker of Australian English, nor was he a fluent speaker of Aboriginal English as a dialect. Based upon the police interview, the ISLPR test interview and school records, Dr Eades described the accused as a 'partial speaker of English'. She said that it was clearly not his mother tongue or native language and neither was it his second language.
Dr Eades stated that at the time of his police interview, the accused could use basic conversational English with limited fluency. However, more than basic conversational English was required for participation in the interview. I will return to Dr Eades' evidence later in regard to the question of whether the accused understood his rights.

Evidence of interviewing officers

Detectives Gazzone and Shannon gave evidence that they were satisfied that the accused had an adequate understanding of English. Similarly Detectives Johnston and Western, who spoke to the accused on 17 August 2012, gave evidence that they believed that accused did not require an interpreter.
These statements need to be viewed in the context that the interactions of these police officers with the accused were almost entirely within an interview context and are based upon their assumption that the answers given always reflect an understanding of the questions asked. There was certainly no formal English language testing undertaken by the police (as is recommended in the COPs manual referred to later). Nor were the police at Kiwirrkurra aware of the extent to which Mr Butler provided the accused with assistance in his own first language.

Evidence of other interactions with the criminal justice system

The State also relied upon evidence that the accused had dealt with the police and the courts on three other occasions within the three months prior to the date of the alleged offence. This, it is said, demonstrates an awareness of the functions and operation of the police and the criminal justice system.
The evidence in this regard was limited. It was confined to transcripts of appearances in the Magistrates Court in Broome on 30 November 2009, 25 January 2010 and 19 February 2010. On each of those occasions the accused was represented by a lawyer. On two occasions there is no record of him saying anything. On the third occasion he spoke once, to say 'yeah' when asked if he understood the charge. This evidence is not capable of assisting with the issue of the accused's understanding of English and whether it was adequate to enable him to participate in a lengthy and detailed police interview.

Was an interpreter required? - relevant law

Where a person has no understanding of English at all an interpreter is obviously required as a matter of practical necessity. Where a person has some understanding of English the extent of that understanding needs to be considered. The understanding may not be sufficient for the person to appreciate their rights. An interpreter may also be required to ensure that any interview is fair and that any answers are reliable and not the subject of misunderstanding. What the police need to consider is not whether the person can make themselves understood in English in casual conversation, but whether they have the capacity to understand their rights and the types of questions that will be put to them in the police interview. They also need to consider whether the person has the ability to express themselves in English such that they are able to fairly and accurately give their own account if they wish to do so.
The obligations of police officers interviewing witnesses or suspects who may have language difficulties are partly reflected in s 10 CIA. That section provides as follows:
Informing people who do not understand English
If under this Act an officer is required to inform a person about any matter and the person is for any reason unable to understand or communicate in spoken English sufficiently, the officer must, if it is practicable to do so in the circumstances, use an interpreter or other qualified person or other means to inform the person about the matter.
This section refers specifically to matters about which the police are obliged to inform a person, such as rights under s 28, s 137 and s 138. But that does not exhaust the need to consider English language proficiency. Whether an interviewee has the capacity to understand and communicate in English sufficient to be able to participate in a police interview which may be lengthy and involve complex questions and detailed information must be considered. This is a factor that can impact on whether the interview is voluntary and also on whether it is fair.
The Western Australian Police Commissioner's Orders and Procedures Manual (COPs manual) provides administrative instructions, guidelines and procedures for police officers in the performance of their duties. Whilst the COPs Manual does not have the force of law it does indicate accepted police practice and a failure to follow the manual may be relevant to issues of voluntariness and fairness: Norton v The Queen [No 2] [2001] WASCA 207; (2001) 122 A Crim R 104; (2001) 24 WAR 488. Under the section dealing with interpreters and translators, the manual provides that where a language is not fully shared with a person being interviewed a professional independent interpreter must be used. It states that the practice of using professional independent interpreters ensures that evidence can withstand legal challenges in a court of law. In regard to Aboriginal communities, the manual states:
WA police should not assume that Aboriginal Australian people speak English fluently or fully comprehend conversations in English especially in a policing context. Many Aboriginal Australians do not speak English as a first language and may require an interpreter to fully understand their legal rights and responsibilities. For some Aboriginal people, English can be their second, third or fourth language … Research has shown that because Aboriginal people speak some English, it is often assumed that they are capable of comprehending more complex concepts and jargon associated with the justice system. Additionally, Aboriginal people have assigned different meanings to many English words they use and this can result in confusion when taking oral evidence without an interpreter.
The manual also recommends the use of an English language test where there is a need to ensure that the interviewee has language proficiency. The test to be used provides for three paragraphs to be read to the interviewee who should then be asked to explain what this means in their own words. The test is simple and intended to be used by police officers.

Was an interpreter required? - conclusion

In the present case, the fact that the accused was a Western Desert Aboriginal man normally residing in Kiwirrkurra was sufficient to put the police on notice that this was a case in which an interpreter was likely to be required. The police were evidently alive to this possibility, having requested Sergeant Pring to make enquiries. However, those enquiries were not adequate to establish that the accused had sufficient understanding of English to participate in a police interview. The conversations between the accused and Sergeant Pring were short and casual in nature. They involved making very simple enquiries and receiving brief responses from the accused. An English language test was never administered. It was not reasonably open to draw a conclusion from those conversations that an interpreter was not required.
It is plain that an interpreter was required. I accept the evidence of Ms Doyle and Dr Ingram that the accused had only a very basic level of English comprehension and speaking ability. This is supported by my own observation of the accused during the recorded police interview in Kiwirrkurra. He frequently hesitates and turns to Mr Butler to provide an interpretation of what is put to him. His language is disjointed and sometimes confusing. Many of his responses are single words which do not necessarily indicate an understanding of the questions.
Because the accused had only a very limited understanding of English the absence of an interpreter means that I cannot be confident that he understood what the police said to him about his rights. Nor can I be confident that he sufficiently understood police questions or that his answers can be accepted at face value.

Did the accused understand the caution? - the evidence

Evidence of the preparations for interview

On 16 August 2012, police officers, including Detectives Gazzone and Shannon, travelled by the police aircraft to Kiwirrkurra. Detectives Gazzone and Shannon left the plane which then travelled on with other police officers to Kintore. Sergeant Pring was waiting at Kiwirrkurra airstrip and took the detectives to the Community Office.
Detective Gazzone had his amended interview plan with him. It included reference to the guidelines derived from Anunga. As they appear in the interview plan, those guidelines are summarised as follows:
Guidelines to be followed when interviewing Aboriginals:
1.INTERPRETER: Unless he is as fluent in English as the average white man of English descent, an interpreter able to interpret in and from the Aboriginal person's language should be present.
2.INTERVIEW FRIEND: be someone in whom the Aboriginal has apparent confidence and would feel supported must be present (who may also be the interpreter).
3.EXPLAIN CAUTION: Great care should be taken in administering the caution.
- should ask the Aboriginal to tell them what is meant by the caution, phrase by phrase,
- should not proceed with the interrogation until it is clear the Aboriginal has apparent understanding of his right to remain silent.
4.FORMULATING QUESTIONS: Great care should be taken in formulating questions so that so far as possible the answer which is wanted or expected is not suggested in any way. Not only the wording of the question, which may suggest the answer, but also the manner and tone of voice which are used.
4. [sic]CONFESSION: Even when an apparent frank and free confession has been obtained police should continue to investigate the matter in an endeavour to obtain [sic].
5.MEAL/DRINK: Because Aboriginal people are often nervous and ill at ease in the presence of white authority figures like policemen, it is particularly important that they be offered a meal. They should always be offered a drink of water. They should be asked if they wish to use the lavatory.
6.INTERROGATION: It is particularly important that Aboriginal [sic] are not interrogated when they are disabled by illness or drunkenness or tiredness. Interrogation should not continue for an unreasonably long time.
7.LEGAL ADVICE: Should an Aboriginal seek legal assistance reasonable steps [sic]. If an Aboriginal states he does not wish to answer further questions or any questions the interrogation should not continue.
8.REMOVAL OF CLOTHING: Steps should be taken forthwith to supply substitute clothing. (exhibit D9)
The guidelines contain a numbering error and some sentences appear to be incomplete, but the meaning and intent is clear. Detective Gazzone said that he went through these guidelines with Sergeant Pring. He said that Sergeant Pring again confirmed that the accused did not need an interpreter. As regards an interview friend, Sergeant Pring said that there were limited members in the community due to a funeral at Balgo, but that he would make some enquiries. Sergeant Pring then went out to locate the accused.
The detectives set up the room as an interview room, though they did not set up the video camera that they had brought with them. A short time later, Sergeant Pring returned with the accused. Detective Gazzone did the introductions and explained to the accused his rights under s 28 of the CIA. The accused's response was to say that he was happy. He was not asked to repeat the rights or explain them in his own words.
The accused was asked whether he wanted to have an interview friend. He initially said no and then nominated Mr Brian Gordon. Sergeant Pring left to find Mr Gordon. At this point, Detective Gazzone decided to confirm the accused's level of understanding of English. He asked if the accused had gone to school in the community and whether he could read and write English. The accused said he could not write English and he could not really read. They also spoke about football, living in the community and travelling around the Kimberley.
Sergeant Pring returned and said that Mr Gordon was not in the community at that time as he had gone to the funeral in Balgo. He then mentioned the name of Mr Butler and the accused agreed to have him present. Whilst they were waiting for Mr Butler to arrive, the detectives told the accused that they had spoken to Mr Nagomarra and Mr Mandijarra and wanted to speak to him about things that had happened in Broome. They also went over the s 28 rights again. They said they were not going to begin questioning until Mr Butler arrived, but the accused then said that he did not want Mr Butler. The police then commenced the unrecorded interview. Detective Gazzone made notes.
The unrecorded interview commenced at approximately 1.25 pm. The evidence of what was said in the unrecorded interview comes principally from Detective Gazzone and is based on his notes. The accused said that he had driven to One Mile on the night in question. On the way he saw a white man walking past 'blue drunk'. He said that when he arrived at One Mile he saw a Hilux drive really fast past him. He stayed at One Mile for approximately 20 minutes and then drove back down the same road. He saw the same white man sleeping on the side of the road. He said the car he was driving was a red car and that earlier in the night Mr Mandijarra and Mr Nagomarra had been in the car but he had dropped them off at home before he went to One Mile. He said that at One Mile he had asked for a beer from a white man he called Big Foot. He said that when he drove past the man on the road he slowed down. He then made two drawings, one of the white Hilux and the other showing where the man was sleeping when he drove back towards town.

At 2.15 pm there was a break. The accused went out to the front of the community building and sat on some large rocks and had a cigarette. He was in the presence of Detective Shannon at that time. On resumption of the interview, the accused was shown a number of photographs and identified Mr Mandijarra, Mr Nagomarra and the red Pulsar which he described as the stolen car. He was also shown a map of Broome on which he marked the place where he had seen the man on the side of the road.
Detective Gazzone then commenced the process of typing up a statement. As Detective Gazzone was going through the statement the accused mentioned another person being in the car. Detective Gazzone then made a telephone call to the senior investigating officer and explained what had happened. The senior investigating officer informed Detective Gazzone to go back to the accused, seek clarification as to who was in the car and consider interviewing him on video.
Detective Gazzone then tried to clarify what the accused was saying by drawing a 'mud map' referring to the different locations that the accused had said he had gone to on the night in question. He also showed the accused a photograph of the deceased. He said that the accused's demeanour changed and he went quiet. The accused then confirmed that the person in the photograph was the person who he had seen sleeping by the side of the road. The accused made some amendments to the mud map and it seems that there was some confusion. Detective Gazzone asked the accused whether he was telling the truth. He says that the accused then looked up and said 'Mistake. Hit him with car'. Detective Gazzone said 'What car?' and the accused responded 'red car'.
Detective Gazzone then paused the interview. He told the accused that they had to talk to him on video and asked Detective Shannon to locate Sergeant Pring to find an interview friend. Detective Gazzone said that he was shocked by the admission and that this was not something that he had expected. Given what the police had been told by Ms Nowee and Ms Nungoray, it is difficult to understand why this was so unexpected.
The accused was taken outside and given a drink and some potato chips. He also had a cigarette. Detective Gazzone told him that he was under arrest on suspicion of murder and then went through his rights. In his evidence, Detective Gazzone was asked:
And why did you make that decision at that point to put him under arrest on suspicion of murder?
Well, from the phone conversation with the senior investigating officer who informed me to - to clarify his information, which I did, and that was - if that was his story, to interview him on video for any inconsistencies. I had that in the back of my mind, but also this - this - this unexpected admission and his inconsistent story to the other witnesses, he's now involving - he's involving himself, saying that he's responsible for hitting the victim in the matter, so I felt that he had - I had reasonable suspicion to suspect him of committing that offence. And that's also - as you can see from my interview plan, that - and the knowledge from the previous enquiries down - that mindset was also supported by information from other witnesses (ts 483).
When Mr Butler arrived, Detective Gazzone explained to him that the police needed to speak to the accused on video about an incident in Broome and that he was there to offer support and guidance to the accused. There was also a reference to Mr Butler assisting with translating. Detective Gazzone said that he meant this to be confined to particular words that he may not understand. He explained to the accused that Mr Butler was there to 'offer guidance and support'. The video camera was then set up and the recorded interview commenced.
If it was intended that Mr Butler would play only a limited role in the interview, that is not what transpired.
Detective Gazzone commenced by explaining to the accused the procedure that was to be followed. Mr Butler purported to translate what was being said into the Pintupi language. Sometimes the accused responded in English, other times in Pintupi, which Mr Butler then translated. The answers appeared to be responsive to the questions but the police could not judge whether Mr Butler's translations were accurate.
Detective Gazzone asked 'Did you want Simon to be there when you spoke to us first?' The accused then shook his head and answered 'No'. On the face of it this appeared to be an acknowledgement that the accused had not wanted Mr Butler present in the unrecorded interview. In fact what Mr Butler said to the accused in Pintupi was 'Do you want me to stay here with you?' This puts a very different complexion on the accused's response. It would seem from this that he was saying that he did not want Mr Butler present during the recorded interview. There may have been good reason for this. It later transpired that Mr Butler is related to the accused in that he is the accused's grandmother's cousin. As an older male relative he was a person who the accused may have felt obliged to defer to.
Detective Gazzone then commenced explaining to the accused his rights. What was said in English in the preliminary part of the interview is reproduced below. The parts where Pintupi was spoken were not transcribed, but they are critical to an understanding of what occurred.
Following the interview, the prosecution obtained a statement from Mr Butler in regard to what he had said to the accused in Pintupi. The State also obtained an independent translation from Ms Rowena Willis. The defence obtained independent translations from Mr George Lee, Mr Ronald Mosquito, and Mr Robert Nanala. At critical points in the initial parts of the interview things are said by Mr Butler and the accused which bear upon the question of voluntariness. I will refer to those parts in the transcript that appears below and also to the differences in translations.
To the extent that there are differences between the translations, I would favour those of the witnesses called by the defence, which are substantially consistent with each other. The reasons for this are as follows. Firstly, the three witnesses called by the defence, who are all from the Kimberley Interpreter Service (KIS), are more familiar with Pintupi or Luritja (a closely related language). Ms Willis' greatest familiarity is with Pitjantjatjara and other central desert languages. She has some knowledge of Pintupi but, in my assessment, it is less extensive than that of the defence witnesses. Secondly, Ms Willis' approach was to translate words literally, rather than to provide the essential meaning of what was said. In some cases, this produced translations which were nonsensical or at least ungrammatical in English. Thirdly, Ms Willis presented as a timid witness who frequently expressed concerns as to the difficulty of her task and the limited time that she had been given. She said that the sound quality of the tape recordings was poor and despite listening to the recordings several times she remained unsatisfied that her translations were strictly accurate. Fourthly, the KIS witnesses gave evidence as to what was said that was generally consistent as amongst themselves, but differed from that of Ms Willis.

Evidence of the recorded interview

After some preliminaries the interview commenced as follows:
DETECTIVE GAZZONE: All right. Now, Gene, I just want to let you know, we'll start from the beginning, okay, now that we've got the video camera on. That video camera's sitting just there recording everything that we say. And it's recording you and I. Now, you've got Simon to your left and you've also Detective Shannon straight across. Now, I, I need to let you know that at this stage, you've been arrested (accused nods his head) for suspicion of murder.
Okay. And that you've got some rights. (accused nods his head). Now that, the first right is that you don't have to talk to the police unless you want to. (Slight nod of accused's head). Okay. But if you do talk to us, it's gonna be recorded by that video camera, and we can use it as evidence.
11.01SIMON BUTLER: [Pintupi]
At this point Mr Butler later stated that he listened to the recording but could not hear what he said to the accused. Ms Willis gave evidence that Mr Butler explained to the accused that the video camera would be taking down the story to 'make sure that it's all, alright'. The KIS witnesses, however, gave evidence that Mr Butler said, 'You gotta tell them the truth. They're taking a video of you. Keep telling them the truth. Keep telling them the truth'.
Q.So, Gene, if I ask you a question, do you have to talk to me?
11.25SIMON BUTLER: [Pintupi]
Mr Butler states that what he said here was 'if he asks you a question you talk to him'. Ms Willis evidence was that what was said was 'when he's come here and, and'. The KIS witnesses gave evidence that what was said was 'look at the detective there. The detective is talking to you. When he asks you a question you have to tell him the truth'. Mr Nanarla added the word 'alright' to his translation.
DETECTIVE GAZZONE: Gene, if I ‑ ‑ ‑
11.29SIMON BUTLER: [Pintupi]
Mr Butler does not deal with this section in his statement. Ms Willis gave evidence that what Mr Butler said was 'If you're not hearing him with a question you have the liberty to tell them the story. Not at all. I'm just saying don't have to talk to them'. The KIS witnesses' version was that Mr Butler said 'Listen and talk to the detective there'.
Q.Gene, if I ask you a question, do you have to talk to me?
A.Yeah. (accused nods his head)
Q.No. You don't have to talk to me.
A.Yeah. (accused nods his head)
Q.Okay. All right. So, I'll read through some rights. It's important that you understand this, Gene. So first of all, you've been arrested for suspicion of, of murder. (accused nods his head). Now, do you know what murder is? What that means? (accused nods his head)
A.Killing.
Q.Killing. It's killing another person. Okay. And that person dies. (accused nods his head). Do you understand that?
A.(accused nods his head)
Q.Okay. So you've been arrested for that. (accused nods his head). Okay. Now, we're going through some rights. This is what, you need, it's important for us to know that you understand this. First right is that you don't have to talk to us unless you want to, unless you're happy and you feel comfortable with talking to us.
12.34SIMON BUTLER: [Pintupi]
Mr Butler does not deal with this part in his statement. Ms Willis' evidence is that Mr Butler said 'don't have to talk to them'. The KIS witnesses' evidence is that he said 'yes'.
GENE GIBSON: (nods)
Q.Do you understand that you don't have to talk to us?
12.35SIMON BUTLER: [Pintupi]
Mr Butler does not deal with this part in his statement. Ms Willis' evidence is that Mr Butler said 'You don't have to talk to him'. The KIS witnesses' evidence is that he said 'Do you want to talk to him when he's finished talking?'.
Q.So if I ask you a question, do you have to answer it?
GENE GIBSON: (shakes head)
Q.No. If Rod ah [sic], asks you a question, do you have to answer it? If, if Rod asks you a question, do you have to answer it?
A.(shakes head)
12.51SIMON BUTLER: [Pintupi]
Mr Butler does not deal with this part in his statement. Ms Willis' evidence is that Mr Butler said 'Do you have to answer him?' The evidence of the KIS witnesses is that he said 'Can you answer that question to him?' Mr Mosquito in evidence amended that to 'You don't have to talk, if the detective answer your question, will you answer to him?'
Q.No. Okay. So you can just say, 'I don't want to answer that question'. (accused nods his head). Okay. So there's no pressure upon you to answer any of our questions today. (accused nods his head). Do you understand that?
A.Yep. (accused nods his head)
Q.Okay. If you do answer a question, if you do talk to us today, and talk to Simon, is it being recorded? (accused nods his head). How's it being recorded? (accused makes facial expression with his lips motioning towards camera). By the video camera?
A.Yeah. (accused nods his head)
Q.And where can we use the video tape? So that's being recorded onto a, it's being recorded onto a, um, memory. Where can we use the video?
13.29SIMON BUTLER: [Pintupi]
Q.So that gets recorded onto a video. (slight nod to accused's head). Do you understand that I can use that video in court to say, 'This is the conversation that I had with Gene, (accused nods his head) on today's date. It's recorded on this video'. And we can put it, the video, into the court and they, everyone can see our conversation. Do you understand that? (accused nods his head). Yeah? All right.
13.55SIMON BUTLER: So can I try and explain this.
Q.No worries.
13.57SIMON BUTLER: [Pintupi]
Q.Okay. Now, you also have the right to speak to a lawyer, or get some legal advice. Do you know what a lawyer does? (accused nods his head). What does a lawyer do?
14.27SIMON BUTLER: [Pintupi]
GENE GIBSON. Help. (nods)
Q.Yeah. Helps people in court. (accused nods his head). Okay. So you can speak if you want to. We can arrange that for you. (accused nods his head). Okay. And we can, um, and Simon can help you do that as well. (accused nods his head). Okay. We can make that - are you happy for us to continue talking to you or do you want us to speak to a lawyer?
A.Speak to a lawyer.
SIMON BUTLER: [Pintupi]
Q.Yeah. And tell me what, what ‑ ‑ ‑
14.57SIMON BUTLER: [Pintupi]
Q.Sorry, can you say that again?
15.22SIMON BUTLER: [Pintupi]
Q.He's, yeah.
SIMON BUTLER: Yeah.
Q.He's asking to see a lawyer.
SIMON BUTLER: Yeah.
GENE GIBSON. (nods)
DETECTIVE GAZZONE: So we, what we can do is we can arrange for that. And the other, the other right is that if you want you can tell your family or friends. So if your grandmother's, is your grandmother in town?
15.41SIMON BUTLER: [Pintupi]
GENE GIBSON: [Pintupi]
SIMON BUTLER: [Pintupi]
Q.In Alice Springs. Have you got any family in this Kiwirrkurra community?
15.47SIMON BUTLER: [Pintupi]
Q.Okay. So you're not related to Gene Gibson though?
16.01SIMON BUTLER: [Pintupi]
All of the witnesses agree that at this point Mr Butler said that he and the accused were related. There was some disagreement as to how the relationship was described, but the KIS witnesses, who I prefer, said that Mr Butler said that he and the accused were cousins and that he was in a grandfather/grandson type relationship with the accused.
Q.Sorry?
16.03SIMON BUTLER: [Pintupi]
Q.You are or you're not?
16.07SIMON BUTLER: [Pintupi]
16.12SIMON BUTLER: [Pintupi]
DETECTIVE GAZZONE: YEAH.
Q.Okay.
A.Yeah.
Q.So, the process is, is that we, we, we need to speak to you about what happened in Broome. (accused nods his head). We want to hear your story. (accused nods his head). We want to hear - you, you've given us the story so far and we don't believe that is the, the full truth. We believe there's information there that you're not telling us. (accused nods his head)
16.35SIMON BUTLER: [Pintupi]
Mr Butler states that he said 'they have been to Broome and you gotta tell them straight'. Ms Willis' evidence is that he said 'This is how it is, about you, know more about your story, it's your story, you haven't told it straight, you ashamed about the story, you haven't told the full story'. The KIS witnesses' evidence is that what was said was 'This is what he's telling you. Tell them the truth about what was happened in Broome. You have to tell them the truth'.
Q.Okay.
GENE GIBSON. (nods)
DETECTIVE GAZZONE: Now, we want to hear your story, the true story of what happened in Broome. Are you happy to tell us what happened?
17.01SIMON BUTLER: (English) Can I explain again? [Pintupi]
Mr Butler does not deal with this part in his statement. Ms Willis' evidence is that what was said was 'You're here to tell the story, the story that happened in Broome that's what you tell them, the true story of yours that happened, you can tell them everything that happened and they'll take your story and listen. Hearing'. The evidence of the KIS witnesses is that he said 'Tell them the truth, the true story about what happened in Broome. Your own story'. Mr Nanarla amended this to add 'confirm what was said'.
Q.Do you understand that? Do you want to tell us what happened in Broome?
17.33SIMON BUTLER: (indistinct)
GENE GISBON: (puts both hands on head and looks towards the ceiling then stretches his arms into the air above him)
GENE GIBSON: Hit him with a rock.
DETECTIVE GAZZONE: What's that?
GENE GIBSON: Hit him, with rock.
Q.Hit him with a rock.
I should note at this point that it is not the prosecution case that the deceased was killed with a rock. Rather it is alleged that a metal pole was used.
A.Yeah.
Q.Okay. Gene, we want to, we want to talk about what you've just told, what you've just said. But we, before we go there, we want to make sure we go through some processes. Do you want to add anything to that?
DETECTIVE SENIOR CONSTABLE SHANNON: Just gonna have to go over, through the CIA rights again with the lawyer and all that to clear it all up ‑‑
DETECTIVE GAZZONE: Yeah.
DETECTIVE SENIOR CONSTABLE SHANNON: ‑ ‑ ‑ maybe nut that out so he knows ‑ ‑ ‑
DETECTIVE GAZZONE: Okay. So there's, there's a few things you need to understand here, okay? (accused nods his head). Don't worry about what the police wants to hear. It's what you want to say. (accused nods his head). Now, first of all, do you want to talk to the police?
18.19SIMON BUTLER: [Pintupi]
Mr Butler does not deal with this part in his statement. Ms Willis gave evidence that Mr Butler said 'You wanna talk to the police listening, you hearing what the police wanna talk?' The KIS witnesses' evidence was that he said 'Do you understand what he's explaining to you? Are you listening to the policeman?' Mr Mosquito amended this to 'Do you know what the police is saying to you?'
GENE GIBSON: Yeah (slight nod).
Q.Yeah. Okay. And do you want to tell the police what happened in Broome?
GENE GIBSON: My, mistake. Killing.
Q.Mistake?
A.Yeah.
Q.Killing? (accused nods his head). Okay. But before we talk about the details, cos we've got lots of details we want to talk about, do you want to talk to us first, or do you want to talk to a lawyer first?
A.A lawyer, first.
Q.A lawyer first?
A.Yeah.
Q.Okay. All right. Well, we will, have to, we'll arrange that. So what we'll do is we'll turn the camera off. We will, um, arrange for the legal details. Okay. And then we'll turn the camera back on. But that may some [sic], take some time. So, either way it'll be recorded when we speak to you next. Okay. So the time now is 5.07 pm, and that's Northern Territory time. And we'll just pause the video tape.
At no point was the accused asked to explain in his own words what the caution meant. This is despite it being recommended by the COPs manual and referred to in the interview plan. In the circumstances it is difficult to understand how the police could have been satisfied that the accused had a real appreciation of his right to silence. The questions that were asked were not adequate to establish that the accused had such an understanding.

Evidence of Dr Eades as to the caution

Other issues

On behalf of the accused it is contended that he was under arrest from the time he was first taken to the Kiwirrkurra Community Centre. The contention is that, despite what the police told him, he was in police custody from that time and not free to leave. It is suggested that this is confirmed by the fact that during the first break the accused was accompanied outside by Detective Shannon.
The significance of whether or not the accused was under arrest is that it is only at that time that the police are obliged to inform and afford the rights referred to in s 137 and s 138. If the accused was under arrest from the outset and those rights were not accorded then there was a breach of the CIA which renders the unrecorded interview prima facie inadmissible.
In my view this contention cannot be accepted. Whilst it was initially the intention of the police to arrest the accused on arrival they did not do so, for the reasons I referred to earlier. Whether or not they had grounds to arrest and should have done so is not presently to the point. A decision was made, albeit mistakenly, to treat the accused as a witness.
Detectives Gazzone and Shannon did not, therefore, arrest the accused. They expressed that intention to the accused and afforded him his rights under s 28. Whether or not the accused understood them, the fact is he was not under arrest at that time. Nor do I think that the fact that Detective Shannon accompanied the accused in the break is inconsistent with him not being under arrest. There is no suggestion that at any stage the accused was physically restrained or directed to remain in the immediate area.
The fact that the accused was not placed under arrest until after the unrecorded interview does not mean that the rights referred to in s 137 and s 138 are irrelevant to the admissibility of that interview. Whilst there may have been no breach of CIA in this regard, whether or not the accused was cautioned remains relevant to whether that part of the interview was either voluntary or fair.
An issue was also raised about whether the detention of the accused after his arrest was lawful. He was detained for a total period that exceed that allowed for by s 140(3) CIA. However, at the hearing of the application the defence accepted that the police had obtained lawful authorisation to extend that period.
There was also an issue in regard to the lawfulness and fairness of the conditions in which the accused was detained. This involved being put into the back of a 'troop carrier' for the long drive from Kiwirrkurra to Kintore and then held in a cell overnight there. At the time he was an arrested suspect but had not been charged. An arrested suspect must not be detained in a lockup or other place of confinement unless to do otherwise is impracticable: s 139(3) CIA. In my view, having regard to the remoteness, limited facilities and necessary travelling time, it was impracticable for the police to do other than what they did. Accordingly, I do not accept that there was any breach of s 139(3).

Relevant law - Voluntariness

Admissions made out of court are not admissible in evidence unless they are made voluntarily: McDermott v The King (1948) 76 CLR 501, 511 (Dixon J). This means that the statement must be made in the exercise of free choice. A statement made as a result of duress, intimidation, sustained insistence or pressure is not voluntary. Nor can a statement be voluntary if it is made as a result of an inducement held out by a person in authority. The prosecution bears the onus of establishing on the balance of probabilities that a confession has been made voluntarily: Wendo v The Queen (1963) 109 CLR 559, 572 ‑ 573.
The word voluntary does not mean volunteered. It means made in the exercise of a free choice to speak or be silent: R v Lee (1950) 82 CLR 133, 149. Voluntariness focuses upon the will of the accused and must be applied according to the age, background and psychological condition of the accused and the circumstances in which the confession was made. Voluntariness is not an issue to be determined by reference to a hypothetical standard. It requires a careful assessment of the effects of the actual circumstances upon the will of the particular accused: Collins v The Queen (1980) 31 ALR 257, 307 (Brennan J).
The Anunga Rules are not law in Western Australia however they do give a very good indication of what ordinarily would be regarded as a fair interrogation: Webb (1994) 74 A Crim R 436, 438 (Malcolm CJ). It is no doubt for this reason that they have been adopted in the COPs manual. Breaches of the Anunga Rules may be relevant to an assessment of the voluntariness of confessional evidence by an Aboriginal person in this State.
In Anunga Forster J made observations that remain relevant. They are particularly pertinent to the circumstances of this case because the warnings and suggestions his Honour made were not sufficiently heeded. This is despite frequent approving references in this and other courts and their incorporation into the COPs manual. For this reason they bear repeating:
I preface this statement of guidelines by pointing out that Aboriginal people often do not understand English very well and that, even if they do understand the words, they may not understand the concepts which English phrases and sentences express. Even with the use of interpreters this problem is by no means solved. Police and legal English sometimes is not translatable into the Aboriginal languages at all and there are no separate Aboriginal words for some simple words like 'in', 'at', 'on', 'by', 'with' or 'over', these being suffixes added to the word they qualify. Some words may translate literally into Aboriginal language but mean something different. 'Did you go into his house?' means to an English-speaking person, 'Did you go into the building?', but to an Aboriginal it may also mean, 'Did you go within the fence surrounding the house?'. English concepts of time, number and distance are imperfectly understood, if at all, by Aboriginal people, many of the more primitive of whom cannot tell the time by a clock. One frequently hears the answer, 'Long time', which depending on the context may be minutes, hours, days, weeks or years. In case I may be misunderstood, I should also emphasize that I am not expressing the view that Aboriginal people are any less intelligent than white people but simply that their concepts of certain things and the terms in which they are expressed may be wholly different to those of white people.
Another matter which needs to be understood is that most Aboriginal people are basically courteous and polite and will answer questions by white people in the way in which they think the questioner wants. Even if they are not courteous and polite there is the same reaction when they are dealing with an authority figure such as a policeman. Indeed, their action is probably a combination of natural politeness and their attitude to someone in authority. Some Aboriginal people find the standard caution quite bewildering, even if they understand that they do not have to answer questions, because, if they do not have to answer questions, then why are the questions being asked?
Bearing in mind these preliminary observations which are based partly upon my own knowledge and observations and partly by evidence I have heard in numerous cases I lay down the following guidelines. They apply, of course, to persons who are being questioned as suspects:
(1)When an Aboriginal person is being interrogated as a suspect, unless he is as fluent in English as the average white man of English descent, an interpreter able to interpret in and from the Aboriginal person's language should be present, and his assistance should be utilized whenever necessary to ensure complete and mutual understanding.
(2)When an Aboriginal is being interrogated it is desirable where practicable that a 'prisoner's friend' (who may also be the interpreter) be present. The 'prisoner's friend' should be someone in whom the Aboriginal has apparent confidence. He may be a mission or settlement superintendent or a member of the staff of one of these institutions who knows and is known by the Aboriginal. He may be a station owner, manager or overseer or an officer from the Department of Aboriginal Affairs. The combinations of persons and situations are variable and the categories of persons I have mentioned are not exclusive. The important thing is that the 'prisoner's friend' be someone in whom the Aboriginal has confidence, by whom he will feel supported.
(3)Great care should be taken in administering the caution when it is appropriate to do so. It is simply not adequate to administer it in the usual terms and say, 'Do you understand that?' or 'Do you understand you do not have to answer questions?' Interrogating police officers, having explained the caution in simple terms, should ask the Aboriginal to tell them what is meant by the caution, phrase by phrase, and should not proceed with the interrogation until it is clear the Aboriginal has apparent understanding of his right to remain silent. Most experienced police officers in the Territory already do this. The problem of the caution is a difficult one but the presence of a 'prisoner's friend' or interpreter and adequate and simple questioning about the caution should go a long way towards solving it.
(4)Great care should be taken in formulating questions so that so far as possible the answer which is wanted or expected is not suggested in any way. Anything in the nature of cross-examination should be scrupulously avoided as answers to it have no probative value. It should be borne in mind that it is not only the wording of the question, which may suggest the answer, but also the manner and tone of voice which are used.
(5)Even when an apparently frank and free confession has been obtained relating to the commission of an offence, police should continue to investigate the matter in an endeavour to obtain proof of the commission of the offence from other sources. Failure to do this, among other things, led to the rejection of confessional records of interview in the cases of Nari Wheeler and Frank Jagamala.
(6)Because Aboriginal people are often nervous and ill at ease in the presence of white authority figures like policemen it is particularly important that they be offered a meal, if they are being interviewed in a police station, or in the company of police or in custody when a meal time arrives. They should also be offered tea or coffee if facilities exist for preparation of it. They should always be offered a drink of water. They should be asked if they wish to use the lavatory if they are in the company of police or under arrest.
(7)It is particularly important that Aboriginal and other people are not interrogated when they are disabled by illness or drunkenness or tiredness. Admissions so gained will probably be rejected by a court. Interrogation should not continue for an unreasonably long time.
(8)Should an Aboriginal seek legal assistance reasonable steps should be taken to obtain such assistance. If an Aboriginal states he does not wish to answer further questions or any questions the interrogation should not continue.
(9)When it is necessary to remove clothing for forensic examination or for the purposes of medical examination, steps must be taken forthwith to supply substitute clothing.
It may be thought by some that these guidelines are unduly paternal and therefore offensive to Aboriginal people. It may be thought by others that they are unduly favourable to Aboriginal people. The truth of the matter is that they are designed simply to remove or obviate some of the disadvantages from which Aboriginal people suffer in their dealings with police. These guidelines are not absolute rules, departure from which will necessarily lead to statements being excluded, but police officers who depart from them without reason may find statements are excluded [3] ‑ [15].

Relevant law - CIA breaches

The CIA is the primary source of police powers in this State. Amongst other things, it provides for the arrest and detention of suspects. The Act counterbalances the increase in police powers by imposing significant restraints and conferring certain rights on suspects. This minimises the potential for abuse: Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1 [118] ‑ [199] (Blaxell J).
In some cases the CIA provides that if the police do not comply with the requirement of a particular provision any evidence obtained will be inadmissible. Section 118(3) dealing with the unrecorded admissions of suspects is such a provision. In other cases specific sections of the CIA impose obligations on police officers but do not refer to the consequences of non‑compliance. However, where evidence is obtained by police in the exercise of a power under the CIA and there is breach of a requirement in relation to that power then the evidence may be inadmissible pursuant to s 154. That section provides:
154.Evidence obtained improperly
(1)In this section -
authorisation includes a warrant and an order.
(2)If in the purported exercise of a power conferred by this Act or by an authorisation issued or purportedly issued under this Act -
(a)a thing relevant to an offence is seized or obtained; and
(b)a requirement of this Act in relation to exercising the power or issuing the authorisation, including a requirement that arises before or after the exercise of the power or the issue of the authorisation, is contravened,
any evidence derived from the thing referred to in paragraph (a) or from the exercise of the power is not admissible in any criminal proceedings against a person in a court unless -
(c)the person does not object to the admission of the evidence; or
(d)the court decides otherwise under section 155; or
(e)if the power exercised was exercised in relation to a protected person (as that term is defined in section 73), the court is of the opinion that the contravention arose out of a mistaken but reasonable belief as to whether the person was a protected person.
The CIA provides that the court has a discretion in some cases to admit evidence that would otherwise be inadmissible pursuant to a particular section of the Act. Section 155 provides as follows:
155.Inadmissible evidence, court may allow admission
(1)This section applies if under another section a court may make a decision under this section in relation to evidence that is not admissible in proceedings in the court.
(2)The court may nevertheless decide to admit the evidence if it is satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.
(3)In making a decision under subsection (2) the court must take into account -
(a)any objection to the evidence being admitted by the person against whom the evidence may be given;
(b)the seriousness of the offence in respect of which the evidence is relevant;
(c)the seriousness of any contravention of this Act in obtaining the evidence;
(d)whether any contravention of this Act in obtaining the evidence -
(i)was intentional or reckless; or
(ii)arose from an honest and reasonable mistake of fact;
(e)the probative value of the evidence;
(f)any other matter the court thinks fit.
(4)The probative value of the evidence does not by itself justify its admission.
In this case the defence contends that there were breaches of s 10, s 118, s 137, s 138 and s 139(3) of the CIA. Section 10 requires that the police use an interpreter when needed to explain to a person their rights. That section does not state that failure to comply renders any evidence inadmissible. Furthermore, it is difficult to see how the s 10 obligation alone relates to the exercise of any power under the Act in the exercise of which something was obtained, thus s 154 could not apply. In my view s 154 is intended to apply to the use by police of coercive powers granted by the CIA, not to any interaction with a person who may be merely spoken to as a witness. The police did not obtain the evidence of the unrecorded admissions by using any power granted by the CIA. That, of course, does not mean that the failure to provide an interpreter is not relevant to the questions of voluntariness or fairness - it clearly is. It simply means that the bare fact that an interpreter was not provided does not render the evidence of the unrecorded interview inadmissible under the CIA.
The position is different as regards the recorded interviews. Where a person is arrested, as here, that person has a right to be assisted by an interpreter if they are unable to sufficiently understand or communicate in English: s 137(3)(d) and s 138(2)(d). This is a right which the officer‑in‑charge of the investigation is required to afford to an arrested suspect as soon as practicable after their arrest: s 138(3)(b). This is a requirement of the Act in relation to the exercise of the power to arrest and the detention of the suspect that flows from that arrest. Any admissions during an interview that occur during that lawful detention can be said to be evidence derived from the exercise of the power to arrest. Accordingly, s 154 would apply in respect of a breach of s 137(3)(d) and s 138(2)(d): Wright [15] ‑ [22]. A failure to provide an arrested suspect with the assistance of an interpreter, where needed, would render evidence of an interview held whilst detained prima facie inadmissible. The issue then will be whether the discretion under s 155 to admit the evidence notwithstanding the breach should be exercised.
Section 118 is in a different category as it does not depend on s 154. A failure to comply with s 118 is expressly stated in that section to render the evidence inadmissible, unless there is a reasonable excuse or the court exercises its discretion under s 155. The phrase 'reasonable excuse' is defined in s 118 and, whilst the definition is not exclusive (Wright [55]), it relates specifically to practical difficulties in undertaking a recording. No such difficulties existed here. The real issue in regard to the unrecorded interview is whether the discretion to admit it under s 155 should be exercised.

Relevant law - unfairness discretion

If the prosecution proves that a confession was made voluntarily then it is prima facie admissible. Subject to there being no breach of the CIA that renders the evidence inadmissible, the onus is then on the accused to establish on the balance of probabilities that there is a substantial reason why the confession should be excluded in the exercise of the court's discretion.
There are three possible bases for discretionary exclusion. They are that it is unfair to the accused to admit the confession, that public policy considerations made admission unacceptable or that the prejudicial effect of the evidence outweighs its probative value: R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 [51].
The unfairness discretion is not concerned with whether the police acted fairly or unfairly. The concern is whether it would be unfair to the accused to use his confession against him: Lee (154), Van der Meer v The Queen [1988] HCA 56; (1988) 82 ALR 10, 26. The prime concern is the unreliability of the confession, but it is not the only concern. There may be concern that the confession would not have been made at all if the interview had been conducted properly: Van der Meer (20), Swaffield (71).
Unfairness and public policy concerns can sometimes meld together. The question of unfairness is often taken into account in considering public policy and vice versa.

Factors that may be relevant to whether the interview was fair include whether the accused was able to understand and communicate in English, whether he was placed under pressure, whether he had adequate breaks and sustenance and was not pressed to continue whilst fatigued. Another factor may be whether police have persisted with questioning after a suspect has indicated a wish not to answer further questions. To so persist may, depending on the circumstances, be improper: R v Ireland (1970) 126 CLR 333. However, police are not bound to accept the initial position of a suspect: Clarke (1997) 97 A Crim R 414, 419 ‑ 420. Interviewing officers are entitled to ask further questions to clarify the accused's position and to determine whether a refusal applies to all questions or only to a particular topic: The State of Western Australia v Smith [2010] WASC 279 [11]. The position may well be different where a lawyer acting for a client whose first language is not English tells police in clear terms that her client does not wish to answer any questions.

Conclusion

I am not satisfied to the requisite standard that the accused's participation at any stage in the police interview was voluntary. I come to that conclusion for the following reasons:
1.as a suspect the accused should have been cautioned from the outset of the unrecorded interview. He was not and did not appreciate his right not to speak to the police;
2.the accused did not understand the caution when it was later given and, in particular, did not understand his right to silence;
3.the accused's will was overborne because he was pressured by Mr Butler to answer the police questions. Bearing in mind the cultural context and the kinship relationship between the accused and Mr Butler, the statements made by Mr Butler would have been understood by the accused as a direction to answer the police questions. The accused would be likely to have felt obliged to comply with such directions;
4.the interview that occurred in Broome was accepted by the prosecution as being a continuation of that which had been commenced in Kiwirrkurra. An interview that is not voluntarily commenced can rarely, if ever, become voluntary. This is because the options of the accused are necessarily limited by what has gone before. Accordingly, the conclusion that the accused's participation in the recorded interview was not voluntary from the outset means that the whole of the interview is inadmissible.
In any event I find that there were breaches of the CIA which render the interview inadmissible. Those breaches are:
1.The failure to record the initial interview as required by s 118; and
2.The failure, once the accused was arrested, to ensure that the accused was assisted by a qualified interpreter as required by s 137(3)(d) and s 138(2)(d).
There was no reasonable excuse for not recording the initial interview. The recording equipment was readily to hand and the decision to treat the accused as a witness and not a suspect was plainly wrong.
There was no reasonable excuse for not obtaining the assistance of an interpreter. All the objective indications were that an interpreter was required. Such inquiries as were made to determine the English language proficiency of the accused were inadequate. There is no reason to think that suitably qualified interpreters could not have been located - several were called as witnesses in these proceedings.
There is no sufficient reason to exercise the discretion to admit the evidence notwithstanding the breaches, pursuant to s 155 CIA. That is because the breaches were serious and put into significant doubt the reliability and, therefore, the probative value of the evidence. I take into account the seriousness of the alleged offence and that the breaches were not intentional, but they do not outweigh the other factors. In any event, as I have noted above, the evidence does not satisfy me that the interviews were voluntary.
Even if I was wrong in regards to the questions of voluntariness and breaches of the CIA, I would exclude the interview on fairness grounds. In my view, it would be unfair to the accused to admit evidence of the interviews. I come to that conclusion for the following reasons:
1.the accused did not have the benefit of an independent interpreter;
2.his ability to comprehend and communicate in English was severely limited. This raises doubts as to the reliability of any answers given by the accused;
3.the efforts by the police to determine whether the accused had an adequate understanding of English and needed an interpreter were inadequate;
4.the accused did not have an interview friend of his choosing. He did not want Mr Butler to be present and Mr Butler did not provide the support and assistance that would be expected of an interview friend;
5.as noted above, the accused was placed under pressure by Mr Butler. This also increases the possibility that answers given by the accused were unreliable;
6.the interview continued after the police had been informed by the accused's lawyer that he did not wish to answer any further questions. It was inappropriate for the police to continue with the interview in these circumstances.
In my view it is unlikely that the admissions of the accused would have been made at all if the interview had been properly conducted. All the indications are that if the accused had been treated as a suspect from the outset and had his rights explained to him by a qualified interpreter he would have exercised the right to silence.
In the event the interviews that did occur were unfair to the accused because he was at a serious disadvantage given his limited understanding of English. This was compounded by the power imbalance between a shy young Aboriginal man on the one hand and several police officers and an older male relative of the accused on the other. Added to these factors were the length of time that the interviews continued and the circumstances in which they occurred. There is a significant possibility that answers given by the accused are unreliable because he did not understand what he was being asked, could not communicate his own thoughts adequately in English or gave false answers in order to appear agreeable.
For these reasons the interviews between the accused and the police on 16 and 17 August 2012 are not admissible. Those interviews were not voluntary, were obtained in breach of the CIA and to admit them would, in any event, be unfair to the accused.