we've received, okay, from the victim. Okay - Um - we've got the clarification that - with you is regarding your clothes. Okay. And the - the truck and - and what actually happened in the truck. Do you understand that? ECHO: Yes. BAIRD: Okay. Now, are you happy or do you want to tell us about the - some other things that happened? ECHO: (inaudible). BAIRD: Partake in a - in another interview? ECHO: Yeah. BAIRD: Sorry? ECHO: Yeah. BAIRD: Okay. Aright (sic). Well again - um - Howard, we'll have to inform you that - that you don't have to because as - as - as Senior Constable Blanch did. Okay. Anything you do say will be recorded and may later be used in evidence. Do you understand that? ECHO: Yes. BAIRD: Okay. So you understand your rights? ECHO: Yeah. BAIRD: Okay. So what will happen if you say anything? ECHO: Judge you'll - judge will hear me in court aye. BAIRD: Judge will hear you in court? ECHO: Yeah. BAIRD: Okay. Alright. Now - also Howard as a result of you being in custody on a ch - on remand - um - before we can speak to you also we've got to offer you the opportunity to contact anyone. Okay. Do you want to - you wish to contact or notify anyone of your whereabouts? ECHO: Nuh'. BAIRD: You don't? ECHO: Nuh'. BAIRD: Okay. Alright. Now, in a short time we'll - we'll prepare ourselves for this interview. Okay. And you're Aboriginal, is that right? ECHO: Yes. BAIRD: Okay. You full blood? ECHO: Yeah. BAIRD: Alright. Now, I'd like the opportunity to speak to you as you've - as you've agreed and you're entitled to have someone sit with you, you realise that? ECHO: Yep. BAIRD: Okay. And at Borroloola you didn't want anyone to sit with you, is that right? ECHO: Yes.

BAIRD: Okay - Um - do you want anyone to sit with you while we have a talk? ECHO: Nuh'. BAIRD: You're happy to talk to me on your own? ECHO: Yeah. BAIRD: Okay. And do you feel comfortable with Elio and I? ECHO: Yeah. BAIRD: Okay. Alright. So we'll conclude this conversation. The time is now 7:22pm." 7. The person referred to as "Elio" is identified as being Detective Senior Constable Valenti. It will be noted that at the commencement of this interview the accused committed himself to a further interview and that the attempted caution, given after that, was quite unsatisfactory. 8. The substantive interview commenced at 7.35pm. There is no suggestion that the accused was not otherwise well treated by the police in the physical sense. He did not appear to be tired, he was not affected by alcohol, and he had slept during the course of the day. 9. He disclosed that he was born in July 1975, and thus was nearly 21 at the time of the interview. He was a full blood Aboriginal who normally lived at Robinson River, a pastoral property which he described as being not far away from Borroloola. He worked at CDEP and said he had gone to school to the level of year 7 in Katherine, he could read and write English only a little bit. It was demonstrated that he had difficulty reading the words on a Kleenex tissue box. He affirmed that he spoke English and understood the police when talking to him. He said that Garrowa was his first language, and after some further formalities, the interview continued as follows: "BAIRD: Okay. Alright now ah do you also agree Howard that prior to commencing the interview okay, um I asked whether you wanted to have

someone sit with you. ECHO: No. BAIRD: And what did you say? ECHO: I'm alright. BAIRD: Alright. Alright you understand your Aboriginal and you can have someone sit with you if you wanted to. You understood that is that right? ECHO: Yeah. BAIRD: Okay. And I also asked you whether you wanted to contact anyone you said you didn't want to is that right? ECHO: Yeah. BAIRD: Okay so your happy to continue? ECHO: Yeah. BAIRD: Okay. Alright so you understand - you also understand Howard that your in custody ah and you've been remanded to appear um Monday at the Katherine court house on charges do you understand? ECHO: Yes. BAIRD: Okay. Well thats what I want to speak to you about Howard is you agreed to take in a further interview. I want to clarify some issues that have arisen as a result of your interview and other information we've received from the victim of the current or attempted sexual assault that occurred at Daly Waters Wednesday night or early Thursday morning. Do you understand that? ECHO: Yes. BAIRD: Okay. Before I ask you or say more about that I have to inform you that you don't have to say anything or answer any questions if you don't want to. Do you understand that? ECHO: Yes. BAIRD: So can you tell me in your own words what I just said to you? Do you have to answer any of my questions if you don't want to? If you don't want to can I force you to answer any questions? ECHO: Yeah. BAIRD: Sorry. ECHO: Yes. BAIRD: How can I do that? Your your own man. Your your own man and you give answers for yourself, is that right? ECHO: Yeah. BAIRD: Okay. So can I if you don't want to say anything do you have to say anything? ECHO: No. BAIRD: So you understand your right you don't have to say anything if you don't want to is that right? ECHO: Yes." 10. In cross-examination Detective Baird expressed the opinion that the accused did not appear to have had any difficulties in understanding what he said to him, he was capable of speaking in both languages, and it was not necessary to engage the services of an interpreter. The Detective was aware of the Anunga guidelines, saying they were always in the back of his mind when dealing with Aboriginal people. His justification for carrying out the further interview was the other information received. He asked the accused whether he wanted to partake in a further interview and having received a positive response proceeded. The transcript shows that the Detective informed the accused that he wanted to speak to him and the accused had agreed. The attempted caution was cast in the mould of an afterthought, some formality that must be undertaken. The accused having given conflicting answers regarding his understanding of his right to remain silent should have caused the Detective to immediately apply the rule. 11. Mr Dixon, a relation of the accused, says that he had heard the accused conversing "mobs of times" with shop keepers in the English language, but it is unclear from his evidence whether he was asserting that the accused did or did not have difficulty in communicating. In cross-examination he was clearly of the view that the accused might have difficulty understanding what was being said to him by police in the English language, and that he may have a better understanding if there was an interpreter. Detective Senior Constable Brown gave evidence that in 1994 she interviewed the accused in relation to a matter, and upon his being advised that he could have somebody with him, he nominated his father who attended. According to her, the accused's father said in the accused's presence that they usually spoke English at home, and that during the course of the interview when they spoke to each other, they did so in the English language. A Mr Nelson, a security guard, had been sitting in Court as part of his normal duties during the course of the evidence and it is apparent that he spoke to the learned prosecutor at some stage concerning his knowledge of the accused. He was called. He had been previously engaged as a Juvenile Justice officer working at Juvenile Detention Centres in the Territory, during the course of which he got to know the accused in about mid 1992 over a period of about six months. He dealt with him all the time, and spoke frequently with him. He suggested that the accused's English was perfect. He said that there was no difficulty in understanding as between himself and the accused when communicating in the English language; that he had been present during school classes where English was the language and overheard communications between the teacher and the accused. According to Mr Nelson, the accused did not have any difficulty in that situation. Mr Nelson claimed to have had ample opportunity to observe and talk to the accused. In cross-examination Mr Nelson qualified his opinion that the accused could speak perfect English, indicating that he meant that he could converse satisfactorily in every day English. 12. As part of the evidence of Senior Constable Wendy Brown there was tendered a copy of part of a transcript of an interview which she conducted with the accused on 26 February 1994. There is nothing in that which would assist me in determining the accused's understanding of English, and it is apparent from that record that he did not express any understanding of his right to remain silent in the face of questioning concerning an alleged offence. 13. It is not enough that an Aboriginal suspect being interrogated have an understanding and an ability to converse in the English language, particularly if he or she has apparently lived a more traditional lifestyle. To such a person the standard caution may well be bewildering, as the accused's conflicting answers to questions testing his understanding show. There is no evidence to show that notwithstanding his frequent contact with police prior to this occasion, the accused has ever indicated his understanding of the right to remain silent. It certainly does not appear from the transcript of the 1994 interview. An understanding of everyday English may not be enough when concepts such as those lying behind the caution are a consideration and that is why application of the rule is important. The difficulty was compounded by the accused's commitment to take part in the interview prior to any proper attempt being made to caution him on that occasion. Had the rule been applied, and the accused's responses not demonstrated his understanding of his right, then it would have been opportune to seek the services of an interpreter. There was no reason for haste. 14. I am not satisfied that the accused's participation in the interview at Katherine was with an understanding of his right to remain silent. 15. Although it is unnecessary to do so, I will consider the other ground advanced in support of the application to hold inadmissible the content of the interview at the Katherine Police Station. It raises an import issue. 16. It is unfortunate, but the circumstances surrounding the bail application referred to by Senior Constable Blanch is unclear. There is an obligation upon the member of the Police Force who has taken a person into lawful custody to bring him before a Justice or a Court as soon as is practicable after being taken into custody unless he or she is granted bail under the Bail Act 1995 (NT) or is released from custody. The accused was taken into custody upon being arrested at the conclusion of the interview at Borroloola. It is provided in s16(2) of the Bail Act that a member may, as an alternative to bringing a person he has arrested before a justice or a court, subject to conditions set out in that subsection, inform the person charged of his right to apply for bail. There is no evidence as to whether either of the members present at the interview at Borroloola were in charge of the police station and authorised to grant bail under Part III of the Bail Act (s16(5)), but if that authority existed, then it was not exercised favourably to the accused. Presumably, the accused was informed that he had a right to apply to a Justice, he indicated that he wished to make such an application, whereupon it was arranged for him to make an application to the Magistrate by telephone (Bail Act s33(4)). Where such an application is made, the magistrate or justice may, after affording an opportunity for submissions to be made, in his discretion, grant or refuse to grant bail and may make such other orders as he thinks fit (s33(5) Bail Act). 17. His Worship's records are not in evidence The basis upon which his Worship refused to grant bail, and the precise details of the orders made are not to hand. It was suggested by counsel for the prosecution that the accused was not being held by police after being arrested for any purpose other than to enable him to be questioned, or investigations to be carried out to obtain evidence in relation to the offence involving the woman, pursuant to s137(2) of the Police Administration Act. That subsection provides that a person shall not be granted bail by the police or by a Magistrate or a Justice while detained under those powers, whether or not he has been charged with an offence. It will be necessary to return to consider that submission in the light of the evidence at the voire dire. 18. Senior Constable Blanch informed Detective Baird, prior to the accused being delivered into his custody at the Highway Inn, of what had transpired at Borroloola. Detective Baird said that he was aware that a bail application had been made by telephone to the Magistrate in Katherine, and that it had resulted in the accused being remanded in custody. It seems to me to be a different thing to bail being refused because of the operation of s137(2) of the Police Administration Act. In accordance with normal practice, since the Court only sits in Borroloola every three or four months, those in custody were brought to the nearest Court, which at that time was in Katherine. In his interview with the accused, Detective Baird told the accused that he was in custody remanded to appear on Monday at the Katherine Court. 19. It was never suggested during the evidence-in-chief of Detective Baird that he understood that he was acting or purporting to act pursuant to the powers in s137(2) of the Police Administration Act; he was not asked for the usual record which, in the experience of this Court, is kept by police when exercising those powers. He denied that that was the position in cross-examination. 20. To remand a person means to adjourn a hearing to a future date and order the defendant, unless admitted to bail, to be taken into custody in the meantime. 21. In Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278 at 305, Wilson and Dawson JJ. said: "A person who is arrested may be detained only for the purpose of bringing him before a justice (or nowadays before some other person with power to deal with him) to be dealt with according to law. For arrest is the beginning of imprisonment and, whilst it is recognized that imprisonment before trial may be necessary in the administration of criminal justice, it must be justified in accordance with the law. There must be a charge and if the person charged can establish his entitlement to bail and can furnish it, the law requires that he be released subject to any conditions which

might be imposed upon him. The function of the justice in granting or withholding bail is an ancient one: 1, 2 Philip and Mary c. 13; Holdsworth, History of English Law, 5th ed. (1931), vol.I, p.296. The point at which an arrested person is brought before a justice upon a charge is the point at which the machinery of the law leading to trial is put into operation. It is the point from which the judicial process commences and purely ministerial functions cease." 22. What has to be distinguished in this case is not the position in regard to a person in police custody under arrest pursuant to police powers, but a person who is in custody, supervised by police, by reason of the order of a Magistrate remanding that person to a date and place fixed by him as part of the judicial process. There is a question of high public policy involved where a person charged with an offence but in police custody pursuant to an order of a Magistrate or Court is questioned by police for investigative purposes. One of the purposes of compelling police to take a person in their custody before a Justice or Court, is to provide the opportunity for a decision as to whether or not he should be remanded in custody or upon bail. It is an abuse of an order of remand in custody of a person for police to utilise the occasion for further interrogation of that person. He or she would not have been in custody had it not been for the order made for the purpose of ensuring that the person is brought to the Court on the fixed date. 23. The law has a strong bias in favour of personal liberty and the Writ of Habeas Corpus, civil remedies for false imprisonment and statutes relating to bail, all reinforce it. The requirement to bring an arrested person before a Justice or a Court of competent jurisdiction as soon as is practicable after a person has been taken into custody under s137(4) of the Police Administration Act, or provide the opportunity for an application for bail as here, is a significant part of the laws armory to safeguard the liberty of the subject, and ensure that such a person has the protection under law through the Court. Such a person is brought within the jurisdiction of the Court which assumes responsibility for the person's release or continued detention whilst the process of prosecution is undertaken. 24. If a person is committed to the custody of a member of the police by the Magistrate or Court it is not with a view to enabling further investigation to be carried out. I note that the Katherine Police section was declared by the Minister to be a police prison pursuant to s10 of the Prisons (Correctional Services) Act in Government Gazette No 14 of 11 April 1990. However, no submissions were made upon this hearing as to the effect, if any, which that may have. 25. The requirement that a person arrested must be taken before a Justice has been described in the following terms by Justice M D Kirby, then Chairman of the Australian Law Reform Commission, in a paper delivered to the 20th Australian Legal Convention and reported at (1979) 53 ALJ 626 ("Controls Over Investigation of Offences and Pre-trial Treatment of Suspects, Criminal Investigation and The Rule of Law"). At p642: "The rule that once a person is arrested and charged, he must be promptly handed over to the uncommitted judicial arm of government by the committed executive, is itself an important control and check against lawless or wrongful action by police." 26. The rule is of no less importance where the person can not be promptly handed over in a physical sense, but applies for bail over the telephone. 27. Considerations such as these have been previously reflected upon by the Courts. In circumstances where police, without the authority of the Court, removed a defendant from the custody of a watchhouse keeper to which he had been remanded by Justices sitting in a Court of Petty Sessions in Queensland, for the purpose of taking up an offer he had previously made to take them to a place where he had dumped a rifle and clothing which he had been wearing at the time of the commission of the offence, they were held to have had no lawful authority upon the basis that once the accused had been remanded to a place under the effective legislation he was to be kept there until again brought before the Justices: "Police officers are not above the law, and the two detective sergeants had no more right than any other members of the public to remove the appellant from the place to which the Magistrate's warrant had committed him. Their action was unlawful, and the fact that they were acting in the course of their duties, or under the command of their superiors, did not justify or excuse it." 28. Per Gibbs J. (with whom Hanger J. and Douglas J. agreed) in Reg v Bruce (1965) Q.W.N. 48 at p61. Their Honours there referred to what had been said in Reg v Macecek (1960) Qd. Law R. 247 by Wanstall J. at 261 where the police had acted contrary to the terms of a warrant issued by the Magistrate remanding the accused in custody by taking the prisoner to a police station and interrogating him. Similar protection and principles can be seen from the case of James William Miller (1980) 1 A Crim R 188, even though the accused had not there even been brought before a Court, but was obliged by the statute to be delivered into the custody of a member of the police force in charge of the nearest police station: "in order that the person may be secured until he can be brought before a Justice to be dealt with according to law", or given bail. 29. In each of those cases it was not doubted that the Trial Judge had a discretion to reject the confessions or admissions obtained. What was under consideration was the principle to be applied in this case, that is, the weighing up of the competing requirements of public policy in seeking to resolve: "... the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law." 30. Per Stephen and Aickin JJ. in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 at 74. "Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price" per Barwick CJ. The Queen v Ireland [1970] HCA 21; (1970) 126 CLR 321 at 335. 31. It is not suggested or shown that the police at Katherine deliberately set out to flout the order of the learned Magistrate. There is nothing to show that they acted other than inadvertently, without considering the position. But they knew the position and should have recognised that the accused was no longer available for investigative purposes. Public confidence in the judicial role in the criminal justice system must be maintained. Had it been necessary to do so I would have ruled the contents of the interview at the Katherine Police Station inadmissible in the exercise of discretion. The confessions were obtained in circumstances where the police acted unfairly at least, and it would be unfair to the accused to permit them to be used at his trial.