BUNDAMURRA -v- THE STATE OF WESTERN AUSTRALIA [2008] WASC 106 (3 June 2008)

BUNDAMURRA -v- THE STATE OF WESTERN AUSTRALIA [2008] WASC 106 (3 June 2008)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : BUNDAMURRA -v- THE STATE OF WESTERN AUSTRALIA [2008] WASC 106

Criminal law and procedure - Anunga Rule - Commissioner's Orders and Procedures Manual whether interview voluntary - Inappropriate questions - Pressure

Criminal Procedure Act 2004 (WA), s 98

Applicant : Mr L Carter & Mr J Kelly & Mr M Gumbleton

1 McKECHNIE J: The applicant ('accused') applies for orders excluding the video record of interview on the grounds that it is involuntary or alternatively that it would be unfair to admit it. If admitted, the accused seeks the deletion of certain material.

2 This is one of many matters handed by a special judicial task force to deal with charges laid relating to alleged sexual offences in Aboriginal communities in the Kimberley. As a result, these cases have been managed somewhat differently from others.

3 At an early directions hearing the parties were required to submit detailed written outlines of argument well in advance of the commencement of these hearings. Each party has done this and I pause to commend the parties on the helpfulness and comprehensiveness of their respective submissions.

4 As a result, before the circuit started, I have been able to reflect on the cases which have recently been the subject of decision in the High Court, particularly Tofilau v The Queen [2007] HCA 39; (2007) 238 ALR 650, and to refresh my memory with cases I have not studied for some time. The principles are generally familiar to me though, having recently co-edited a text on criminal law with a specific chapter devoted to the topic Questioning and Confessions.

5 In the present series of directions hearings, of which this is one, the accused's counsel have prepared submissions with reference back to the submissions in respect of Wayne Bundamurra where the detailed legal argument is to be found. I have taken account of those submissions, as well as the specific written submissions and of course oral submissions made in relation to Neil Bundamurra, the present accused.

6 On analysis, it seems to me there is little significant difference between the submissions of the prosecution and the defence on the legal principles applicable, such differences tending to be ones of emphasis in respect of application of fact, in particular decided cases.

7 The fundamental principle is that set out in R v Lee [1950] HCA 25; (1950) 82 CLR 133, 144. Broadly, an accused must speak in the knowledge of a free choice to speak or remain silent in order for any admission to be classified as voluntary. An accused who speaks while overborne is not speaking voluntarily, nor is an accused who is induced to speak through promise of advantage which is not removed.

8 The onus is on the prosecution to satisfy a judge on the balance of probabilities that a confession or admission was made voluntarily. The burden in Australia is different from the burden in some Commonwealth countries in times gone by, including England.

9 Although there is a suggestion in R v Hagan [1966] Qd R 219 that the criminal standard may in reality apply because of the seriousness of matters in consideration, the standard of proof remains as proof on the balance of probabilities, bearing in mind the seriousness of the matter under consideration: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170.

10 I now turn to the facts of this case and the matters specifically raised by the parties.

Was the accused in custody at the time of interview?

11 The prosecution accepts that at the time of interview persons could not be taken into custody for the purpose of being questioned. The prosecution also concedes that the accused's right to leave the interview at any time could not be inferred from the caution that was given. There is no evidence that he was told he could leave.

12 As to the first, it is part of the circumstances to be taken into account, particularly when assessing whether he spoke voluntarily or whether his unlawful custody had an impact on him. There is no affirmative evidence that it did have any particular impact and nothing is particularly observable on the video record of interview. The interview lasted some two hours, partly as a result of lengthy pauses from time to time before questions were answered, but there is no indication that his ability to answer was affected by his detention.

13 The accused is a senior warden at Kalumburu and assists police. He has been involved in interviews earlier to the extent of sitting in with a suspect while being interviewed. However, Sergeant Greatorex noted (ts 55) the accused has no education or training in respect to the rights of an accused person in custody. I take into account the unlawful detention in assessing voluntariness but of itself it does not persuade me that the interview was involuntary.

14 At the commencement of the video record of interview the accused was asked whether he wanted another person present and he said he did. The nomination of his mother was queried by police and he appears to have agreed subsequently, in view of the subject matter under discussion, namely, sex. His request for his brother Wayne was refused, as he was also the subject of investigation. He settled on his brother Charles, who has not previously performed the role. Charles Bundamurra had not previously sat in on an interview between a person and a police officer (ts 11).

15 The relevant Anunga Rule is r 2: R v Anunga (1976) 11 ALR 412. The rule is in some respects patronising because it takes no account of the occupation, education, intellectual capacity or personality of a particular Aboriginal person and purports to be a blanket guideline. It provides, relevantly:

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.

16 The extract from the Commissioner's Orders and Procedures Manual (COPS Manual) in operation at the time says the following:

Interview friend. For children and those with physical, intellectual or psychiatric disability, and where necessary Aboriginals, depending on their proficiency in English and understanding of the court system, it is highly desirable that members conduct such interviews in the presence of an independent party or interview friend. Members are to ensure that interview friends are aware of the respective rights and duties of the police officer and the suspect.

17 The Commissioner's Guidelines note what is obvious, namely, that Aboriginal persons are as different in their overall capacities as persons of any other race. This is not to deny the important principle of the necessity of an interview friend in appropriate circumstances. Moreover, in appropriate circumstances the lack of a suitable friend might well reinforce a conclusion that an interview was involuntary. In the present case, having regard to the evidence of the accused's background, his position as a senior warden, albeit without training in the rights of suspects, his age and my observation of him on the video record of interview, I conclude that the interview was not an involuntary interview by reason of the fact that Charles Bundamurra had no appreciation of his task.

18 Nor was the interview relevantly unfair for that reason, such as to exercise my discretion to exclude it. The police response to the interview friend was inadequate but did not causally result in an involuntary interview and was not sufficiently unfair as to justify the exercise of the discretion.

19 The accused's principal language is English and I find that the accused displayed no want of understanding or lack of comprehension in the interview. There is nothing to suggest he is below normal intelligence and his work as a warden would seem to belie such a suggestion anyway.

20 The accused's counsel has made specific submissions as to why I cannot be satisfied as to the accused's understanding of the caution. Some of these have substance. However, on a review of the whole of the video record of interview, including reminders about answers given from time to time and the last part of the interview, I am satisfied on the balance of probabilities that the accused understood the caution. Necessarily, such a finding is in part impressionistic, based on the record of interview.

21 In saying that, I am not diminishing the burden of proof on the prosecution but pointing out that the video record of interview needs to be seen in its entirety. Not only the verbal communication is important but the non-verbal communication, including nods and shakes of the head and other gestures, are also to be taken into account. The answers given to the interviewer by the accused in relation to the caution indicate to me that he understood both limbs of the caution and there is nothing in his body language at the time or later to negate that conclusion on the balance of probabilities.

22 The defence directly raised the question of inducement and the question by Detective Sergeant Doyle:

I am offering you, I suppose, an opportunity, without me saying what it is, to say it from your heart.

23 The accused's counsel does not limit the inducement to that statement alone but includes particularly all that is said between page 8 and page 11 of the transcript. Mr Carter points out that a lot of time passes; some eight minutes. He puts it this way:

What in our submission happens in this period is that the accused is told in effect that it is best to speak and tell the truth, rather than not answer questions or be silent. He is told that in any event the police will not think less of him. He is told that if he doesn't speak, things will get a lot worse.

The implicit threat is that if he does not speak, he will get into trouble. He will have all the files that Detective Doyle seems to make a habit of touching from time to time read out and no longer be respected. (ts 73)

24 I have set out this passage from argument because it captures the essence of the submission. In Tofilau one of the significant issues for decision was the question of inducement particularly whether held out by a person in authority. A very lengthy examination of all the historical and current authorities was undertaken by the court and it is not necessary for me to repeat it. Callinan, Heydon and Crennan JJ in their joint judgment were chiefly focusing on the question of the person in authority but nevertheless conducted a comprehensive review of all the authorities on the point. Counsel before me helpfully referred to Dixon & Smith v The Queen (1992) 28 NSWLR 215, a case also analysed in Tofilau in the joint judgment to which I have referred. Wood J concluded his summary of the cases by saying, and I quote:

The inquiry to be made in a case concerning a person in authority accordingly seems to involve first the question whether the words used by the person, viewed in a commonsense way and according to their natural meaning, were capable of amounting to a threat, promise or offer of advantage; secondly, whether the accused understood them as such; and thirdly, whether his confession was in fact the result of the threat, promise or offer of advantage. Unless the prosecution discharges the onus, on a balance of probabilities, of establishing that the words used were not an inducement, in one or more of these ways, then the confession which follows it will be inadmissible. (227)

I respectfully adopt that as a correct statement of the law.

25 I return to the video record of interview. There is no question that any words spoken emanated from a person in authority. However, I do not consider that the words can be construed as an inducement. In context, I do not think that the words amount to an offer, direct or implicit, of an advantage or benefit. Properly seen, they are an offer for the accused to speak, if he wishes, from his heart but without any reward, express or implicit, attached. Moreover, there is no evidence that the accused understood the words spoken as an inducement or that his subsequent admission were the result of those words spoken. This does not suggest there is an onus on the accused to establish those matters affirmatively, but in circumstances where the words do not on their face amount to an inducement, the absence of any direct evidence as to the effect on the accused makes the proposition that the subsequent admissions were involuntary improbable. I have taken account of Greatorex's intervention, particularly when he said:

You know how the system works. It's the same thing for you. It's no good just sitting there. (ts 53)

26 In the circumstances, had Doyle not intervened immediately as he did and reminded the accused, 'If you don't want to answer, just say, "I'm not going to answer it,"' then Greatorex's comments would have significantly impaired the prosecution case on this point. As it is, I have found that the accused understood and appreciated the caution, was reminded about it during the interview, and I accept that the words spoken by Greatorex, though wrong, do not at this point render the interview involuntary. I do not accept that there was an inducement in the circumstances.

27 I have considered the submissions on basal involuntariness. Cases will differ and it is always important to look at the whole video record of interview. There is from time to time an infelicity of expression by the interviewer Doyle. Such infelicities can assume inflated importance when divorced from the whole of the interview, which is, after all, an interchange or dialogue, albeit one where the accused has lengthy pauses on occasions. I note that there does not seem to be a passive acquiescence in the accused, he steadfastly denying certain allegations put to him. I pause to note that I do not confuse an ability to deny with voluntariness to participate.

28 Up until the intervention of Greatorex, I consider that the accused's participation was voluntary. Shortly following that intervention the interview takes a different turn. There is overt pressure, inappropriate questions and irrelevant expressions of opinion. I note that, despite this, no admission of any substance was forthcoming.

29 The question and tone become accusatory - as an example: 'Is that fun? Is that what you class as fun?' and questions such as, 'Why do you think someone would tell us that they saw you and [Z] in the toilet?' Such questions are always inappropriate and wrong.

30 Some parts of the questioning under Greatorex may have been voluntary. Certainly all parts of the interview dealing with the alleged offence following the question on transcript page 29 - 'I don't believe you and I'm sure Detective Doyle doesn't believe you' - are involuntary.

31 In the exercise of discretion in relation to fairness, I rule as inadmissible the questions from the time Greatorex commences at page 30, 'Um, just a couple', until the end of the interview on the allegations.

32 Once the interview as to the allegations was completed, Doyle asked concluding questions concerning the accused's understanding of his rights. I am satisfied that the responses, sometimes only by way of nod or shake of the head, are voluntary and admissible. The bulk of the interview therefore I hold to be admissible with the exception of those parts I have just ruled inadmissible.

33 I turn to the exercise of the discretion. Except for the ruling I have just given, I am not persuaded that any other part of the interview has been conducted so unfairly as to exercise my discretion to rule it inadmissible.

34 There remains the question of the unlawful custody. As I said, this clearly enlivens the discretion. It involves a balancing exercise taking into account the matters mentioned in the authorities, including the seriousness of the charge, whether the detention was deliberate or inadvertent, the length of detention and the effect on the suspect.

35 In this case, the unlawful detention proceeded no further than the time taken for interview. I am not persuaded that it was a deliberate breach of law. I accept that Doyle was mistaken about his powers. It should not be assumed that a violation of a person's rights will always be tolerated by the courts, simply because the violation was inadvertent and the charges were serious. Every case requires a balance to determine where the interests of justice lie.

36 In this case, having regard to the short nature of the detention, its lack of effect on voluntariness of the interview and the lack of deliberations, I have reached the conclusion that the discretion should not be exercised to render the video record of interview inadmissible.

37 Finally, I turn to the alternative orders sought in relation to specific questions and answers. There are a number of questions which although not affecting the voluntariness of the interview are obviously irrelevant, prejudicial or otherwise inadmissible. I will leave it to the parties at first instance to resolve the issue and will only rule on any unresolved issues. It is my long experience that generally the parties reach agreement without judicial intervention but I will rule on any contentious matter.