R v BL [2015] NTSC 85

R v BL [2015] NTSC 85 | Case summary | Zoe

[45]

[1] The accused, BL, is charged with one count of having sexual intercourse without the consent of the complainant, AX, contrary to s 192(3) of the Criminal Code. In the alternative, he is charged with one count of performing an act of gross indecency without the consent of AX contrary s 192(4) of the Criminal Code. The date of the alleged offending is between 1 June 2014 and 3 November 2014.

[2] On behalf of the accused, an application was made to exclude a record of conversation conducted by investigating police officers on 9 January 2015. BL made certain admissions during the course of that interview. The record of interview of 9 January 2015 was the second record of interview conducted by police with BL in relation to the same alleged offending. He had previously participated in an interview with police about the same subject matter on 18 November 2014. During the course of that interview he declined to speak to police about involvement in any offending. On that occasion, he was accompanied by his grandfather GR who acted as a support person and who had initially contacted police and advised them BL may be involved or may have information about the alleged offending.

[3] Counsel for the Crown, in broad terms, argued that there was nothing about the circumstances in which the admissions were made that tended to show the truth of any admission obtained was adversely affected. In other words, the various issues raised on behalf of the accused were not sufficient to justify exclusion of the record of interview pursuant to s 85 of the Evidence (National Uniform Legislation) Act. Alternatively, if any answers were found to be unreliable because of the way the questioning was conducted, the relevant questions and answers could be excised. Further, it was argued that if there was found to be non-compliance with any relevant law or practice, the Court should not exclude the admissions in accordance with s 138 of the Evidence (National Uniform Legislation) Act on any basis that non-compliance amounted to improperly or illegally obtained evidence.

[4] In general terms, on behalf of BL it was argued s 85 of the Evidence (National Uniform Legislation) Act was enlivened and consequently the record of interview was not admissible as it could not be shown the circumstances in which the admissions were made were such as to make it unlikely that the truth of any admission was adversely affected. The relevant conditions or characteristics the Court was asked to consider with reference to s 85(3) were as follows: the accused was an Aboriginal youth; he was 17 at the time of the interview; English was not his first language; no interpreter was provided; the s 140 Police Administration Act caution took place after the interview; the allegations were not put to him; a number of significant responses were preceded by substantially leading questions; and the support person was inappropriate. Additionally, matters relevant to the Anunga Guidelines and Police General Orders were raised, particularly with reference to whether the accused understood the caution, the appropriateness of the support person/prisoner's friend, the suggested lack of a sufficient explanation of the allegations and the use of leading questions in some parts of the record of interview.

[5] Further, it was argued ss 18 and 35 of the Youth Justice Act were not complied with. The effect of those sections require police officers to refrain from interviewing a suspect who is a youth unless reasonable attempts to have a responsible adult present have been made. Finally, the Court was asked to exclude the admissions on the basis of the factors already mentioned pursuant to s 138 of the Evidence (National Uniform Legislation) Act.

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[6] I will not summarise all of the evidence given on the voir dire, however some history of what occurred is necessary in order to understand the relevant findings.

[7] A police investigation commenced on or about 1 November 2014 into allegations the accused committed an offence of a sexual nature against the complainant, who was seven years old. At the time the complainant lived with her mother and siblings. BL also lived with her family from about June 2014. It appears this was part of a broader investigation into how a number of children had contracted sexually transmitted infections.

[8] On or about 8 November 2014, the accused's grandfather, GR, heard that BL may have been involved in an incident at the complainant's residence. GR heard there was a possibility of sexual abuse or the commission of a sexual assault. The complainant's mother contacted GR and said that BL had been implicated in some way. GR then contacted BL and asked him whether he knew what had happened to AX. In GR's statement[1] he said BL was at first reluctant to talk about what had happened but then told GR he had done something when he and AX were in the house together. He said he had been smoking ice in the house. GR encouraged him to be honest about what had happened. BL told GR he was prepared to talk about what happened. BL and GR agreed they would go to the police station to make a statement about it. BL told GR about using ice with others and said words to the effect that he did not really know what he was doing. He did not speak at that time about the exact details of what had happened with AX. BL told GR that AX was acting stupidly too. BL also spoke about the sexual activity of other boys in the house but denied he had anything to do with that and said he was not involved. Consistent with BL's expressed wish to speak to police, GR attended the police station with BL on 18 November 2014, after contacting Officer Steve Hancock. In his evidence during the voir dire, GR said that BL was prepared to tell his side of what happened. At the time GR was speaking with BL, he said he understood there had been a lot of threats directed towards BL.

[9] On 18 November 2014, as a result of arrangements made by GR and Officer Hancock, BL participated in a record of interview with police. BL also voluntarily gave a sample to police for DNA testing.[2] GR was present during the interview as BL's support person. After dealing with the preliminaries in the interview, BL declined to answer questions.

[10] Later on the same day at the police station, BL participated in another interview. The subject of that interview concerned an unrelated matter. GR was present in a similar capacity. Officer Hancock conducted that interview. BL was cautioned. He answered questions. He was asked about whether he had sexual intercourse with a student at his school and whether he had fathered her child. Although he agreed with a number of suggestions about conduct of a sexual nature, he denied other particular allegations in respect of the girl concerned and did not accept that he could be the father of the child.

[11] In his evidence during the voir dire GR said he thought BL made it clear when he arrived at the police station that he did not particularly want to talk but that he was happy to give a swab if that was required. GR was not sure whether BL said anything about not speaking in relation to the particular charges that have now been laid, but he said he had a feeling BL did not want to speak about it. GR gave evidence of his own motivation for taking BL to the police station. He said he wanted to clear up any misunderstandings and if there had been any wrongdoing, to find out about it. He said he encouraged BL to be honest about it and drove him to the police station.

[12] In relation to the interview of 9 January 2015, it is somewhat unusual that BL was interviewed again, given the first interview had been concluded with respect to the same subject matter because BL said he did not want to answer questions. The reason for conducting the second interview is not completely clear. I am not suggesting anything untoward, but it seems more likely than not that, contrary to the belief of investigating officers, BL had not sought out police wanting to speak about the matter again.

[13] GR said he was "pretty sure" that he did not speak to BL about speaking to the police again. He told the Court he was surprised when he became aware BL was arrested. In fact, there was no formal arrest prior to the interview of 9 January 2015. Although GR did not know this, attending police officers arranged for BL to voluntarily attend the police station and police drove him to the station.

[14] GR said he knew that police had attended Bagot Community and picked BL up. GR later received a phone message or realised he had a phone message to the effect he was being contacted, possibly to attend the police station to attend another interview. He thought BL's auntie attended with BL because he did not receive the message in time. GR said that he thought he may have had a call from BL on the day he was arrested. GR said as far as he knew, he did not call police seven days earlier to tell them BL wanted to go to the police station. He said he had no recollection of a phone call with police along those lines. He did not phone police and say BL wanted to speak to them again. Although GR could not be certain that he did not speak to police again during the relevant period, he was confident that he did not say BL wanted to talk to police again. He did not have a conversation with BL in which BL had told him he wanted to speak to police again. GR said he was surprised BL was arrested as he thought he would be contacted if that was to occur.

[15] In re-examination GR said it was possible he had a message from police but his recollection was BL tried to contact him, possibly from his auntie's phone. By the time he received the message it was too late. He had understood BL's auntie acted as his support person. In fact this was not the case during the 9 January record of interview.

[16] Officer Adams recorded in her statement that on 2 January 2015 she received advice from GR that BL wished to speak with police, however he would not disclose what he wished to say to females.[3] She said this information was from a phone call, but she could not remember the details. As a result, she requested Senior Constable Dwyer contact BL to provide him with another opportunity to speak to police. Officer Dwyer advised her that he had spoken to BL and made an appointment for him to participate in a record of interview the next day. Officer Adams briefed Officer Dwyer about the case. She also said she told him that GR had been a support person for BL. She thought she gave GR's contact numbers to Officer Dwyer and that Officer Dwyer had GR's details in any event. She said she mentioned that GR would be an appropriate support person because he had been used before. She did not recall speaking about issues of interpreters or legal assistance to Officer Dwyer. She advised Officer Dwyer that BL had already spoken to them once and had attended voluntarily. She said her understanding was BL still wanted to tell police a story but not speak to a female officer. She said she had not ever indicated that GR would not be an appropriate person to be a support person.

[17] Referring to her diary entries, Officer Adams said she did not have a diary entry of 2 January 2015. After checking PROMIS case note entries, diary note entries, phone messages and emails, she told the Court she took leave from 16 December until 29 December 2014. When she returned to work on 29 December 2014 she was working for the Australian Federal Police, not the Northern Territory Police. Her first day back working for the Northern Territory Police was on 2 January 2015. She produced an email that she received on 2 January 2015 that had been sent to her by Officer Hancock during her leave on 24 December 2014. She said the information in her statement was received on 2 January 2015 in that email. She said the email referred to BL still wishing to speak with police but not with a female. She could not recall if she did speak directly to GR about BL's concerns. The email produced reads as follows:[4]

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[18] The email suggests it is GR, if anyone, who wanted to speak to police. It also seems clear that the sentence "I have cleared BL of involvement in my job" refers to the unrelated matter in the second interview on 18 November 2014. Officer Adams did not recall speaking to GR on the phone in relation to that email. She agreed after reflecting on the email that earlier evidence about having a further conversation with GR was not correct in relation to these issues. Officer Adams said she did not think she had spoken to GR on 2 January 2015. She could not remember the source of the information contained in her statement to the effect that BL wanted to speak to police again. She agreed that the particular point about BL wanting to speak to police again was not in the email. Officer Adams did not agree that she had confused the information about BL wanting to speak to police.

[19] Officer Adams recorded that she had left a call card for GR on 29 January and that GR and OR attended the police station on 30 January to provide statements. She agreed GR was likely to be a relevant witness. Asked whether she had told Officer Dwyer that GR would no longer be an appropriate support person because he would be a witness, she said she did not remember saying that. She recalled she had said in evidence that GR would be an appropriate support person.

[20] As a result of Officer Adam's request that a male officer speak to BL, Officer Dwyer spoke to BL at Bagot Community on 5 January 2015. He arranged to meet BL again on 9 January 2015 and told him he would take him to the police station and conduct a record of interview.[5] He said between 5 January and 9 January 2015 BL would consider who he wanted to sit with him as a support person during the interview. He showed BL a list of persons he wanted to speak to him about. He told him it was about children with STIs, and BL said "I only did it with AX". Officer Dwyer regarded this as a spontaneous remark. When he returned on 9 January, BL could not nominate a support person and Officer Dwyer suggested a person from the Red Cross. He said BL agreed to this course and agreed to voluntarily go to the police station and participate in a record of interview. He told BL he could not have GR as a support person as GR could potentially be a witness.

[21] Officer Dwyer asked the Red Cross to supply a support person. When the support person from the Red Cross, BS, attended, police spoke to her, and introduced her to BL. Officer Dwyer said he then spoke about legal aid, an interpreter and said that BL was not under arrest and was free to leave. He said he left BS and BL alone together while he set up the interview room. He said he told BL that BS's role was to be a support person during the interview and that BL was happy to continue.

[22] After the record of interview BL was arrested and Officer Dwyer conducted the s 140 conversation. During that conversation BL asked EW, his auntie, be contacted. BL was at EW's house when he was taken to the police station. EW saw police speak to BL at her house.

[23] Officer Dwyer agreed that he did not say prior to taking BL to the police station, that, depending on what he said, he may be charged with serious offences. He also agreed BL had said he wanted GR present. Officer Dwyer was not sure if he explained BL's options in respect of a support person. He agreed EW opened the door of the house when he went to pick up BL. He agreed he did not tell EW about the subject matter of the interview or where he was taking BL. He said he was not sure if EW was the responsible adult. He did not ask EW who the responsible adult for BL was. He did not make any independent inquiries about who the responsible adult was. As BL did not nominate EW, he assumed he did not want to get her involved. In terms of compliance with the Youth Justice Act, Officer Dwyer said he made reasonable attempts to have a person in one of the categories within s 35(1)(a),(b) or (c) of the Youth Justice Act attend as he asked BL on Monday 5 January to nominate someone. As BL did not nominate anyone on either 5 or 9 January, Officer Dwyer proceeded to obtain a support person from the Red Cross. Officer Dwyer agreed he could have asked an adult. He agreed the preliminary conversation with BL and BS was not recorded.

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[25] Once the criteria in s 85(1) has been met, it is for the accused to show "[a] question legitimately arises as to whether the circumstances were such that the truth (or untruth) of the admission might have been adversely affected".[6]

[26] To establish a preliminary point or whether there is a "real question" or "legitimate issue" to be tried, requires assessing whether the ultimate fact or conclusion may be open as a matter of reason. In the context of s 84 of the Evidence Act (NSW), employing a similar test for admissions alleged to be influenced by violence and other conduct, Odgers cites Habib v Nationwide News Pty Ltd[7] to the effect that "there must be some evidence that indicates through legitimate reasoning that there is a reasonable possibility an admission or its making were influenced by prescribed conduct".

[27] Applying similar reasoning adapted to s 85, in this case it was concluded on the primary facts ascertained at the commencement of the voir dire, including the somewhat unusual sequence of events leading up to the challenged record of interview, that there was a reasonable possibility the reliability of the admissions may be impaired.

[28] It was readily found that a question legitimately arose under s 85, consequently the voir dire proceeded on the basis that the Crown bore the burden of proving on the balance of probabilities[8] that the circumstances surrounding the making of the admission were such as to make it unlikely that the truth of the admission was adversely affected.

[29] The authorities indicate that generally a court does not consider the question of the truth or otherwise of an admission when determining admissibility.[9] This is because of the operation of s 189(3) of the Evidence (National Uniform Legislation) Act that relevantly provides: "[t]he issue of the admission's truth or untruth is to be disregarded unless the issue is introduced by the defendant". This question was not raised on behalf of BL, hence the truth or otherwise of the alleged admissions are to be disregarded.[10] In R v Ye Zhang,[11] Simpson J determined s 189(3) was designed to obviate a "bootstraps" argument to the effect that evidence of an admission should not be admitted because the evidence can be shown by other evidence to be truthful. It was emphasized that the attention of the court is to be directed to the circumstances in which the admission was made "excluding evidence that would substantiate or contradict the admission".

[30] The phrase "the circumstances in which the admission made" has been held to mean the circumstances of and surrounding the making of the admission, rather than the offence and that "[t]he section may be said to be intended to require courts to enquire, where appropriate, into the process by which official questioning produces evidence tendered at trial".[12]

[31] A number of authorities discuss whether the circumstances contemplated by s 85(2) require either a subjective or objective test.[13] Reviewing those authorities, Odgers observes that despite there being authority which supports an objective approach, "the trend of authority involves a subjective analysis, in the sense of a focus on the impact of the circumstances in which the admission was made on the actual reliability of the admission. As a result, the actual contents of the particular admission have been used to support a conclusion that the admission is reliable".[14]

[32] The relevant conditions or characteristics listed in s 85(3) appear more amenable to subjective analysis, particularly the physical and mental characteristics of the interviewee.[15] The matters a court may take into account are not however limited. In my view there is no reason to read s 85(2) as exclusively applying to either subjective or objective matters. In this instance the voir dire has proceeded on the basis that the relevant characteristics of the accused, including his vulnerabilities, should be assessed according to s 85(2) Evidence (National Uniform Legislation) Act.

[33] Since the introduction of the Evidence (National Uniform Legislation) Act, R v Anunga[16] and other common law cases have been displaced. As noted however by Professor McCrimmon, although no longer binding precedent, as guidelines for the conduct of police in the interrogation of Indigenous persons, they will continue to apply.[17] I proceed on the basis that both the Police General Orders (eg. General Order Q2 "Questioning People Who Have Difficulties With the English Language - the Anunga Guidelines") and the Anunga Guidelines remain useful in assessing certain of the characteristics that may be required to be addressed in the context of s 85 of the Evidence (National Uniform Legislation) Act. The Anunga Guidelines and Police General Orders with respect to questioning Aboriginal suspects for whom English was not a first language in certain situations are not and never have been absolute rules. Their relevance to questions under the Evidence (National Uniform Legislation) Act are readily accommodated or associated with s 138(2)(a) (improperly or illegally obtained evidence) or s 139 (cautioning of persons) or the general discretion to exclude under s 90. They also have some relevance to s 85. Both the Guidelines and General Orders remain useful in a discussion of any relevant "condition" or "characteristic" bearing on reliability, as they signal certain issues that require particular attention. As with many of the common law cases, the Anunga Guidelines and Police General Orders were intended to ensure vulnerable suspects were not disadvantaged and unreliable admissions were not admitted. They especially, but not exclusively, address vulnerabilities resulting from deficiencies in language or the inability to properly explain or to guard against gratuitous concurrence in the face of leading questions. In large part, the Anunga Guidelines and Police General Orders expressed in similar terms assist to prevent the unreliability that readily flows from miscommunication. Both the Anunga Guidelines and the Police General Orders represent a pragmatic approach to assist with ensuring fairness and reliability concerning suspects who are vulnerable because of language difficulties.

[34] Although the question of admissibility on the basis of unreliability is to be determined according to s 85 of the Evidence (National Uniform Legislation) Act, issues concerning language, comprehension, miscommunication and other factors that were directly relevant to the Anunga Guidelines and other common law cases as well as Police General Orders such as Q2 are not irrelevant to the question of unreliability in s 85.

[35] Additional statutory protections were relevant to BL because he was still a youth for the purposes of the Youth Justice Act. At 17 years he was an older youth but nevertheless enjoyed additional protections. Section 15(1) of the Youth Justice Act requires that an explanation must be made to a youth of matters relevant to an investigation "in a language and manner the youth is likely to understand having regard to the youth's age, maturity, cultural background and English language skills". This provision is also included in Northern Territory Police General Order Youth, promulgated 22 February 2007.

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[36] In my view BL should have been provided with an interpreter, particularly in the circumstances of the second interview when he did not have a support person of the calibre of GR who had a thorough understanding of BL's particular communication mode. The subject of the interview was very serious criminal offending. BS, the support person from the Red Cross, appeared to speak only English and was not from the same cultural background. Police officers investigating had been endeavouring to avoid the participation of female police officers, however, no such concern seemed evident with respect to the selection of the support person from the Red Cross.

[37] Tiwi is BL's first language. His spoken English, although it may appear to be reasonable for social conversations, as was evident when speaking to BS during a break in the interview, could not be described as standard English. He speaks some English and is perhaps better described as a partial English speaker. Whatever is the appropriate expression, BL's responses in the record of interview are not those of a fluent English speaker. This is well evident from the record of interview itself, particularly the silences in response to important but seemingly simple questions, the large number of monosyllabic answers and occasional examples of obvious miscommunication.

[38] In his evidence GR did not agree he had a discussion with police about the need for BL to have an interpreter at the earlier interview of 11 November 2014. He said there might have been some mention in passing. He said he thought of it during the interview. At some points he interpreted or reformulated questions for BL. He also added the comment "so, don't underestimate the potential for misunderstanding".

[39] GR told the Court BL was from the Tiwi Islands. GR explained he was married to BL's grandmother. BL had stayed with them when he was a baby, he grew up on the Tiwi Islands and then would visit during school holidays with his brother. At various other stages BL stayed with GR and his wife. During 2013/2014 BL stayed in the MM household to study at Kormilda College. He had been at Tiwi College on Melville Island, then was a boarder at Kormilda and then a day student. He stayed with the MM family and later with an auntie at Bagot Community.

[40] GR said that in his household they speak Tiwi English most of the time, meaning Aboriginal English with a lot of Tiwi words. If there are Tiwi speakers around, his partner speaks Tiwi with them. He said they move between different languages. He said with BL they speak mainly Aboriginal English, "but with a fair amount of Tiwi language laced through it".

[41] Although GR does not speak the Tiwi language fluently, GR said he understands a fair bit and speaks Tiwi English with Tiwi people. He is able to make himself understood to Tiwi speakers.

[42] The record of interview of 18 November 2014[18] shows that on a number of occasions BL was assisted by GR. GR reformulated a number of questions in English. This was to make some of the questions comprehensible to BL. Although there were not many interventions of this kind by GR, in my opinion it signalled a lack of English language proficiency on the part of BL. During the course of questioning, BL indicated he did not want to speak to police. After BL indicated that he did not want to speak to police, Officer Olney asked "so you're saying you don't want to talk to us at all?" No audible response follows and GR says to BL "you can say that, BL, if that's what you think". BL stated "just don't want to talk, er, just don't want to talk". When Officer Adams asked BL if he could tell her in his words the meaning of "[y]ou don't have to say anything but if you do, it could be used in court", there is no audible response. BL then says "Just don't want to talk".

[43] Officer Adams said on 18 November 2014 there had been a discussion about whether BL needed an interpreter. She said GR gave his opinion that BL would not require an interpreter. She did not recall the details of that conversation. She had no concerns about BL needing an interpreter as she said he was answering questions. She also observed BL and GR communicated with each other in English. She noted that BL changed his mind quite quickly and did not want to speak with the police. She was aware that he later spoke to police about an unrelated matter.

[44] In relation to not obtaining an interpreter, Officer Adams referred to the first interview and said there was no reason to obtain one as BL was conversing reasonably well and she thought he understood what they were saying. She did not remember the particulars of the conversation about an interpreter but recalled GR had said he would not need one. She did not recall speaking directly to BL prior to the interview. She agreed it was possible she made her assessment about whether BL needed an interpreter on the say so of GR. She did not recall the particulars of that conversation. She did not know and did not ask what BL's first language was.

[45] EW, who is BL's auntie, told the Court she speaks English and Aboriginal English, like a Pidgin or Kriol. BL had stayed with her. She said she speaks English to him but breaks it down. She described his English as "not well, not good". She agreed English or a form of Aboriginal English was spoken in her household. She agreed BL had attended Kormilda College as both a boarder and a day student.

[46] Officer Dwyer did not ask BL what his first language was. He said he could understand him perfectly and BL did not appear to misunderstand things. He said he appeared to speak fluent English and did not know if he spoke any other language. At the beginning of the record of interview of 9 January 2015, Officer Dwyer asked BL what languages he speaks. BL said "Um, half, half Tiwi". This was then followed up by Officer Dwyer asking "what's your main language that you use?" There is a long pause. Officer Dwyer then prompts BL saying "what language are we speaking now?" BL answers "English". Officer Dwyer agreed that in the interview, when asked how his English was, BL said "ah, pretty little bit". Officer Dwyer said this was a common answer. Asked whether when listening back to the record of interview when it was played in Court, he considered BL was heavily accented, Officer Dwyer said "yes he is rather soft in places". Asked whether with recurring frequency he agreed he had repeated back what BL said to confirm it, he said that was to help him as well to understand what he told him. He agreed that he had misheard BL on a number of occasions and that BL had corrected him. After the record of interview was in part replayed again to Officer Dwyer, he agreed that the BL shook his head in response to the question "do you want to talk? Tell me more about it". Officer Dwyer said that indicated the end of a first disclosure and that was what he could remember, not that he did not wish to say anything further. Officer Dwyer also indicated after some questioning that he misunderstood a response in relation to who BL was referring to when he said "and then really done that really stupid thing, like, doing that really stupid thing".

[47] There is very little clarity around the discussion of whether BL needed an interpreter. If there was some discussion with GR on the earlier occasion, it was not particularly prominent and it may be the situation with the first record of interview that although not ideal, GR was able to monitor the situation to avoid miscommunication. With the second record of interview, it is clear there was significant scope for miscommunication and there are some identified examples. This reflects adversely on the reliability of the admissions made. Officer Dwyer asked a question with many assertions contained in it about whether BL needed an interpreter, or was he "right to talk". BL answered "I'm all right". At a later point BL is asked "No, and you don't want an interpreter". No verbal response was indicated by BL. This was not satisfactory with respect to the interview under challenge.

[48] Although when the record of interview of 9 January was being conducted BL was not formally in custody, he was in the police station. In my opinion, given the lengthy silences, the many monosyllabic answers and some acknowledged miscommunication, this is not a record of interview that can be relied upon. An example highlighted that tends to show a lack of English proficiency is when Officer Dwyer asks "what time of day was it?" BL answers "like um Saturday or Sunday". A proficient English speaker would not answer this way.

[49] Of more direct concern, in answer to questions clearly intended to clarify whether BL is describing sexual intercourse, he responds in a manner illustrating lack of English proficiency. For example, he answers "ah, how you going to say it in English".

[50] These responses are indicative of lack of sufficient English proficiency to regard the interview as reliable. When I mention reliable in this context, I mean that the Crown has been unable to show that the circumstances in which the admissions were made were such as to make it unlikely that the truth of the admissions were adversely affected.

[51] I am not here focusing on the caution, but rather whether there was likely to be unreliability in what followed, given all of the circumstances. In my view, the failure to obtain an interpreter for the second record of interview that came about in the unusual circumstance described, diminished the reliability of the whole record of conversation. The fact that BL spoke a form of English or some English does not mean it was sufficient to complete a reliable record of interview with police.

[52] Chief Justice French recently addressed the issue of fair communication in the justice system.[19] Although writing in respect of the judicial process and particularly of persons giving evidence, participating in a record of interview at a police station in my view raises similar issues. The following extract from his Honour's paper highlights the issues of significant relevance here:

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[54] In many respects, BL did not present as many problems for the interviewers that many speakers of non-standard English do. BL clearly has a first language which is Tiwi. Tiwi interpreters are regularly engaged by police officers and in the courts. There is no indication that a Tiwi language interpreter could not be engaged. Officer Dwyer was unaware that BL's first language was Tiwi. He may have placed too much reliance on the fact that BL had, as many remote area students do, attended Kormilda College for a part of his schooling. Even a cursory observation of the way he spoke in the record of interview demonstrates the high likelihood that English was not his first language. Although I am not here focusing on the caution, the fact that there was no "in your own words" explanation of the caution does not generate any confidence that BL's English was at a satisfactory level to participate without error in a record of conversation.

[55] The Anunga Guidelines in respect of the suspect explaining the caution back to the questioner in their own words is not solely relevant to demonstrating an understanding of the caution itself, but is also relevant to assessing whether the person has sufficient comprehension of English to participate without an interpreter, support person or other intermediary. In this instance, there is a gesture at the commencement of the record of interview that tends to indicate that BL did not wish to speak. There are inaudible responses and long silences. At one point during the introductory matters, BL is asked what he can do if he doesn't want to answer questions and he says "I'm not sure".

[56] The Anunga Guidelines suggest police ask a suspect to explain the caution in their own words as a mechanism for ensuring comprehension when a person is not a fluent English speaker. This a widely accepted form of language testing in respect of whether a person understands their rights.[21] If the suspect cannot explain the caution in their own words, that may indicate an interpreter or other measures will be required. Other simple mechanisms have been developed to assist in determining whether a person needs an interpreter.[22] Further, the Supreme Court Interpreter Protocols that provide an interpreter should be engaged "when a party or a witness speaks limited English or has difficulty communicating in English in a courtroom context."[23] This is very similar to what is required in other legal contexts such as police interviews.

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[57] In the course of the record of conversation Officer Dwyer told BL: "now I want to talk to you about the four kids I think it is four children. Let's see one, two, three, four children, yep four children at 49 xxxxx Crescent in xxxx that have turned up with STI's, sexually transmitted infection..." Later he asks: "alright so can you tell me your involvement with the children at 49 xxxx Crescent in xxxx. Tell me everything you can remember about these children and what happened when you were staying there?"

[58] On BL's behalf it was submitted that because he was not under arrest, the tenor of the questioning and the fact that he was not told that he was being investigated for a sexual offence against a child, BL was lulled into thinking he was providing information to police, possibly as a witness, without realising he had been accused of a crime.

[59] If this question was to be decided solely on the contents of the record of interview, there may have been some force in this point. It must be remembered however that Officer Dwyer spoke to BL when he first visited him, read out a series of names and noted BL said "only did it with AX". This part of the conversation was not repeated in full in the taped record of interview. It is unlikely to be admitted as an admission given the requirements of s 142 of the Police Administration Act to record the substance of such a conversation. It does, however, together with other factors, have relevance to the question of whether the allegations were known to BL.

[60] Although the first record of interview did not proceed past the commencement of the caution, BL had spoken to GR about the general allegations and whether he was involved or knew about it. Generally speaking, it is not necessary for police to specify the particular offence alleged to have been committed by the suspect. Rather, it is necessary that the suspect be provided with sufficient information to enable them to understand what they are being questioned about and to enable them to make an informed decision as to whether they should exercise any of their rights, including whether to speak or remain silent, or communicate with a support person or lawyer.[24]

[61] Although this record of interview is unreliable for other reasons, I do not find it was unreliable due to BL not knowing at least in substance what he was to be questioned about.

[62] Further, the s 140 Police Administration Act procedures are reserved for post-arrest questioning and additionally deal with custody issues and communication with family and legal representatives. Although BL was taken to the police station, he was not arrested until after questioning. Although there were certain protections, a matter of law, relevant to questioning BL, the s 140 conversation was not applicable prior to the challenged record of interview. I would not uphold this ground of objection.

[79]

[68] As was pointed out by Ms Oliver SM sitting in the Youth Justice Court,[25] s 35(5) limits the use of a support person from the register in s 35(1)(d) because such a person may only be called upon to act as a support person where reasonable attempts have been made to have a person mentioned in the categories in s 35(1)(a),(b) or (c) present unless it was not practicable for any such person to be present within two hours. The Northern Territory Police General Order Youth sets out the obligations of police officers in similar terms.

[69] BL had requested GR be present. He was told he could not have GR. EW, BL's auntie who appeared to exercise responsibility of a type over BL was present at the house when police picked BL up. It is likely she was inappropriate herself to be the support person given gender appeared to be a significant factor in relation to the interview. She would have clearly suggested other appropriate persons from her family, who had a similar cultural background as BL. In her evidence she particularly mentioned her own father who lived next door.

[70] There appeared to be no urgency with this aspect of the investigation given no steps had been taken since late 2014.

[71] In the circumstances, I do not think it can be said that reasonable steps were taken to locate an appropriate support person. Particularly with respect to a youth in the circumstances of BL, it could not be considered reasonable to simply leave the matter to him.

[72] The support person from the Register did not offer any of the support that might be expected, save that she was present. There was clearly ambiguity about BL's response to and comprehension of the caution. In the first record of interview by comparison, GR checked BL's response. There were no interventions by BS to ensure ambiguities present in BL's answers were clarified. Nothing was explained by BS when BL indicated he did not know an answer or how to say something. Nothing was said or done by BS to assist BL, save from speaking with him about general social or biographical matters during a break in questioning.

[73] The difference between the first interview when BL had an appropriate support person and the interview under challenge could not be starker.

[74] Although this breach of the Youth Justice Act could potentially be grounds leading to exclusion of the record of interview under s 138 of the Evidence (National Uniform Legislation) Act, in my view it is also a factor along with the language proficiency issue and failure to obtain an interpreter that contributes to the conclusion that the admissions are not reliable in the sense of s 85 of the Evidence (National Uniform Legislation) Act.

[80]

[75] On 18 November 2014 BL participated in two interviews with police. In one he declined to answer questions. In the other unrelated matter he answered questions and effectively denied the principal allegations, although some answers may have been considered to be partial or circumstantial admissions of a type. BL was, in any event, "cleared" of that allegation. I infer this was a result of a review of evidence unrelated to the interview. In both of those interviews GR was present.

[76] There was a stark contrast between those interviews and the challenged interview. In the November interviews BL had the active support of GR.

[77] In the circumstances, I would not be prepared to conclude that because BL positively exercised his rights in the November interviews with the support of GR, he therefore understood the caution on 9 January 2015. Because of the way the interview of 9 January 2015 came about, there needed to be a reasonable demonstration of BL's understanding that he did not need to speak to police if he chose not to. As was referred to in R v Anunga,[26] even if some suspects understand that they do not have to answer questions, it may still be bewildering because if they do not have to answer questions, why are the questions being asked?[27] This comment per Forster CJ is pertinent to these circumstances because there had already been one interview.

[78] In my opinion the fact this was the second interview, the language issues already dealt with and the lack of any demonstrated understanding of the caution, lead to the conclusion that BL did not in any real sense understand the caution. This is evident from his poor explanation of most parts of it in the record of conversation itself.

[79] As he was not formally in custody, s 139(3) of the Evidence (National Uniform Legislation) Act does not apply in relation to exclusion pursuant to s 138(1). Section 139(3) provides the caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency. A deficient caution can only be relevant to the public policy exclusion discretion if the suspect is in custody. Even though BL was not in custody, he was interviewed at the police station and a caution was required and given. I cannot be satisfied it was understood.

[80] Although the lack of understanding of the caution per se does not lead to the conclusion of unreliability for the purpose of s 85 of the Evidence (National Uniform Legislation) Act, in this instance, coupled with the other matters already discussed, the interview should be excluded pursuant to s 90 as in the overall circumstances it would be unfair to admit it.

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