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[1999] NTSC 46
mixed. Jako’s first unrecorded conversation and specified post-arrest statements were excluded, but her recorded 5 November interview was admitted; Marshall’s interview was excluded and she was found not...
This judgment dealt with whether statements made to police by three Aboriginal women accused of serious offences could be used at trial. The judge considered the context of each interview, whether police had to caution the person, whether the person understood the caution, and whether police conduct made a statement unfair or involuntary. One of Jako's recorded interviews was admitted because the judge found the investigation had not yet reached the stage where she was a suspect. Other statements were excluded, including Jako's formal interview after she had said she would not answer questions and Marshall's interview, where the judge was not satisfied that she understood the caution. The Crown then said it would call no evidence against Marshall, so the court entered a not-guilty finding with the effect of a jury verdict.
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In R v Jako & Ors [1999] NTSC 46, Mildren J heard separate voir dire applications under s 26L of the Evidence Act concerning alleged admissions by Emily Jako, Theresa Marshall and Mavis Robinson. Each had pleaded not guilty to charges of aggravated robbery, aggravated unlawful use of a motor vehicle and murder. The proceedings were about admissibility before trial, not a determination of the charges against Jako or Robinson. [1]-[2]
The charges arose from the death of Edie Thomas, whose body was found at Colyer Creek beside a Toyota Landcruiser on 4 November 1997. The Crown's proposed case was that the three women had been at the site, that Thomas was killed when her vehicle was reversed over her, and that property was taken afterwards. These were allegations presented by the Crown, not findings made after a trial. [3]-[6]
The rulings differed according to the circumstances of each conversation. Jako's first alleged statement, made to police in a roadside encounter, was excluded because the officers' evidence did not satisfactorily establish its context. Her recorded police-station interview later that day was admitted: the judge concluded that the investigation had not yet reached the accusatory stage and that she was not then a suspect on the evidence before him. [10]-[11], [21]-[27]
The court treated Jako's later statements differently. Her conversation at home after arrest was not voluntary because she had not been cautioned. Her formal recorded interview was excluded because police continued questioning after she had made clear that she did not wish to answer. The Crown did not press a ruling on some other conversations, and the judgment does not decide their admissibility. [28]-[37]
Marshall's interview was also excluded. The judge was not satisfied that she understood the caution or that her nominated prisoner's friend had been adequately briefed to support her. The court also found that police had used an outstanding mesne warrant to secure her detention for questioning about Thomas's death, rather than to bring her before the court as the warrant required. [40]-[52] The Crown then announced it would call no further evidence against Marshall. Applying s 348A(2) of the Criminal Code, the judge found her not guilty, with the same effect as a jury verdict. [38]-[39]
The judgment's central organising distinction is between investigating an unresolved event and questioning a person after the investigation has become accusatory. Until the accusatory stage, police may gather information, including by allowing possible suspects to give an account. Once that stage is reached, a caution is required. The court acknowledged that identifying the transition is difficult. [21]
For Jako's 5 November interview, the judge found the threshold had not been crossed. The evidence then available did not establish that a crime had been committed, much less that Jako had committed one. Police knew that Thomas had died in suspicious circumstances and that a vehicle was involved, but the cause and circumstances were not yet established. Applying the suspect test discussed in Raso and Grimley, the judge required more than speculation: there had to be a factual foundation for an apprehension that the person might have committed an offence. [20]-[22]
That conclusion did not dispose of the separate fairness objection to Jako's roadside conversation. The officers could not give a clear account of what had been said, when it had been said, or what had prompted it. The conversation was not recorded, notes were not tendered, and the later interview did not confirm it. The judge reasoned that a jury might treat the words as a spontaneous admission even though the context could not be proved. He excluded it in the exercise of discretion, despite finding no evidence that the words were involuntary. [9]-[11]
The recorded 5 November interview was not excluded simply because the first conversation had been excluded. The judge treated the two conversations as independent. He also rejected the argument that s 142 required the later interview to confirm an earlier statement that had itself been recorded. His reading was that the statutory recording obligation applied to an admission made by a suspect and that the provision was concerned with recording the fact and substance of the admission. [23]-[24]
A distinct fairness principle addressed disclosure of the nature of the investigation. Drawing on the discussion in Szach, the judge said that, once police are satisfied about the nature of the crime and believe a particular person committed it, fairness requires that person be told what crime is under investigation before the stage at which a caution is required. He found that point had not been reached in Jako's 5 November interview. [25]-[27]
The later Jako rulings turned on the circumstances at the time of questioning. On 6 November she had been arrested for murder, but Detective Kelly accepted that he had forgotten to caution her before the conversation at her home. The judge found her statements in that conversation involuntary and inadmissible. [28]-[29] In the evening formal interview, Jako repeatedly indicated she would not answer questions. The judge considered that continuing to put allegations to her breached guideline eight of the Anunga guidelines. In his assessment, the disregard of her expressed wish created oppression, particularly given the vulnerability to subtle pressure which the guideline recognises. [31]-[36]
Marshall's circumstances combined language, support-person and police-power concerns. She spoke very limited English, and the judge was not satisfied that the caution had been understood. The interview did include an interpreter, but that did not by itself resolve the problem: the judge emphasised that legal concepts may not translate readily, and that an interpreter's presence is not proof of comprehension. [44], [47]-[51]
The prisoner's friend was meant to support Marshall's ability to choose freely whether to speak. Yet the friend was not adequately advised about the role, there was no demonstrated opportunity for private consultation, and his attempted involvement was curtailed. The judge concluded that the steps taken left him unable to play a useful role. [44]-[46]
The warrant issue added to the discretionary analysis. Police knew Marshall was a suspect, but arrested her on a mesne warrant without telling her she was suspected of murder. The warrant was not shown to her, and clothing was taken for the murder investigation without lawful authority. The judge found the warrant had been used to hold her for interrogation, and described that as a misuse of police power. [40]-[43] Although he found the interview had been completed before the unlawful post-10.00am detention became relevant to the questioning, the other defects supported exclusion. [43], [52]
The judgment does not purport to change the law generally. It applies statutory provisions and previously stated principles to the particular police conduct and evidence before the court. It is therefore more accurate to describe its contribution as an application and explanation of existing rules in a detailed factual setting.
On the accusatory stage, the judgment draws on Murphy, Van der Meer, Raso and Grimley. It explains that police may conduct general enquiries and give possible suspects an opportunity to clear themselves, but must caution once the investigation has passed the required threshold. The court's application stresses that a person is not a suspect merely because police are interested in them or because their account appears suspicious. The court looked for a factual foundation beyond mere speculation. [21]-[22]
On fairness, the judgment separates failure to caution from failure to disclose what crime is under investigation. It states that disclosure can be required at a stage earlier than the point when a caution is required, once police have reached the specified view about the crime and the person thought responsible. The court did not find that threshold met in Jako's case at the relevant time. [26]
On recording, the judgment interprets s 142 of the Police Administration Act in the setting before it. It distinguishes the requirement to record an admission from a supposed requirement that a later interview confirm an earlier, already recorded conversation. The judgment also discusses Charlie, explaining that confirmation of the relevant admitted facts may be sufficient, without confirming every word of the earlier conversation. [23]
On Aboriginal suspects, the judgment applies the Anunga guidelines to the concrete question of whether an expressed wish not to answer was respected, and to the adequacy of a caution and support-person arrangement. It makes clear that an interpreter does not automatically ensure understanding, and that a prisoner's friend must be able to perform a meaningful supportive function. [36], [44]-[51]
Finally, the judgment applies s 348A of the Criminal Code to the Crown's announcement that it would adduce no evidence against Marshall. The statutory consequence was a finding of not guilty with the effect of a jury verdict. [38]-[39] The excerpt supplies no subsequent legislative history or later judicial treatment of this decision.
At [11], the judge said the context of Jako's roadside words had not been satisfactorily proved and could no longer be established. In plain English, the problem was not simply whether she had uttered the words attributed to her. It was that the court could not reliably tell the jury what had happened around those words, creating a risk of a misleading impression.
At [22], the judge described a suspect as requiring an apprehension based on “some factual foundation”, not mere speculation. The practical point in this ruling was that police interest in a person, or an account that seems doubtful, does not alone establish that the person has become a suspect for the relevant caution analysis.
At [26], the judge said that fairness may require police to tell a person the nature of the crime under investigation before the formal caution stage. In plain English, the court recognised that the duty to explain what police are investigating and the duty to caution are related but not identical questions.
At [36], the judge said that few Aboriginal people would be able to resist answering where their express wish to remain silent was ignored. This was the court's explanation for treating continued questioning as oppressive in Jako's case, despite the absence of evidence that police used an express threat or inducement.
At [47]-[50], the judgment explains why interpretation is not merely a matter of translating the caution's words. The interviewee must understand the concepts. The judge criticised reliance on “yes” or “I hear you” where the surrounding exchanges did not demonstrate comprehension.
At [52], the judge listed the combined grounds for excluding Marshall's interview: misuse of the mesne warrant, inadequate explanation of the prisoner's friend's role, and failure to comply with the caution guideline. The judge also weighed those matters against the admissions' “dubious evidentiary value”, which he described as mainly exculpatory. In plain English, the court considered both how the evidence was obtained and what it was likely to prove.
The judgment is most directly relevant to voir dire disputes where the admissibility of a police statement depends on the point at which a person became a suspect. It illustrates the importance of identifying what police knew, when they knew it, and whether those facts supported more than a speculative connection to an offence. The court assessed the state of the investigation at the time of each interview, rather than treating the entire investigation as having one fixed status. [20]-[22]
It is also relevant where an alleged admission is unrecorded and police witnesses cannot reliably establish its context. The reasoning at [10]-[11] turns on the evidentiary uncertainty and the risk that a jury might infer guilt from words stripped of their setting.
For interviews involving an Aboriginal person, the decision addresses continued questioning after a wish to remain silent has been expressed, difficulties in understanding the caution, and the practical role of an interpreter and prisoner's friend. The specific facts matter: Jako had expressly resisted further questioning; Marshall spoke very limited English and the judge was not satisfied she understood the caution or had meaningful support from her nominated friend. [36], [44]-[51]
The judgment also concerns police reliance on an outstanding warrant to bring a person into custody for questioning about a separate investigation. The court examined the purpose for which the warrant was used, whether it was shown to the person, the seizure of clothing, and the failure to bring Marshall before the court as required. [41]-[43]
These are examples of issues the decision considered, not a substitute for assessing the relevant statute, evidence and later authorities in another matter.
The supplied judgment text does not identify any later court decisions applying, following, distinguishing or criticising R v Jako & Ors. It is therefore not possible, from this source alone, to describe how later courts have treated the case or to state its present precedential status.
The judgment itself identifies and uses earlier authorities. It refers to Murphy and Van der Meer on the accusatory stage, follows Raso in discussing the meaning of suspect, and applies Grimley to the factual threshold. [21]-[22] It follows Anunga in applying the questioning guidelines, and discusses Charlie on the recording of admissions. [23], [36] It also applies authorities concerning the prisoner's friend, including Butler, Weetra and Dumoo, and refers to Collins for the supportive purpose of that role. [44]-[46]
Those citations explain the legal material the judge considered at the time. They do not supply evidence of what subsequent courts did with Jako itself. Any account of later treatment would need additional judgments or a later citator, neither of which is included in the supplied material.
The judgment leaves several matters undecided or dependent on facts beyond those presented. First, it does not set a universal point at which an investigation becomes accusatory. It acknowledges the difficulty of defining that point and applies a factual assessment to what police knew about Thomas's death and Jako's possible involvement at particular times. [21]-[22]
Second, the court did not need to rule on the admissibility of Jako's fourth conversation, and the Crown did not press the sixth conversation. The judge expressed a view that the sixth statement would not have been admissible, but that view was not necessary to the disposition. [30], [37] The judgment also did not decide Robinson's admissions, because the Crown no longer proposed to lead evidence with substantially the same defects identified in Marshall's case. [53]
Third, the interpretation of s 142 concerned the particular sequence of an already recorded statement followed by later questioning. The judge's reasoning addresses the statutory text as he understood it in 1999; the supplied extract does not provide later amendments or subsequent judicial interpretation. [23]
Fourth, the decision identifies a fairness threshold for informing a person about the nature of an investigation, but does not determine precisely how police belief must be established in every case. It found only that the relevant stage had not been reached during Jako's interview. [26]
Finally, the judgment's practical concerns about caution wording, interpretation and the prisoner's friend are tied to its evidence about Jako and Marshall. The source does not set out later police policies or subsequent legal developments. It therefore cannot establish whether the procedures criticised in 1999 were later changed or how courts have since evaluated similar arrangements.
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Criminal law � S.26L voir dire application � inadmissibility of evidence �
conversation between accused and police officers not satisfactorily
Criminal law � S.26L voir dire application - seizure of evidence without
accused being arrested � when police investigation changed from
Criminal law � S.26L application � voir dire � evidence � accused arrested
and not informed of right to silence � conversation inadmissible as
Criminal law � S.26L application � evidence � subsequent electronic
recording confirming prior unrecorded statement � does a prior
inadmissible statement taint a second admissible statement.
Criminal law � voir dire � evidence � police must inform person of nature
of crime under investigation at stage earlier than administration of
caution once police have determined who may have committed a
Criminal law � voir dire � evidence � Anunga Rules � statement
inadmissible � Aboriginal people have particular vulnerability
amounting to oppression when police questioning continues after
interviewee has stated he will not answer questions.
Criminal law � evidence � voir dire � where crown intends to adduce no
evidence � Court must make finding that accused not guilty � effect
Criminal law � evidence � voir dire � failure to caution offender upon
arrest � failure to explain that offender was suspect in murder �
arrest made on outstanding warrant not part of current investigation �
unlawful seizure of clothing following arrest � failure to show
warrant to offender upon arrest � misuse of police power.
Criminal law � evidence � voir dire � unlawful detention � failure to bring
person arrested on mesne warrant before Court of Summary
Criminal law � void dire � evidence � Anunga Rules � initial lack of
interpreter and prison's friend at interview with police � failure to
explain role of prisoner's friend � failure of police to understand an
Aboriginal response of "yes I hear you" does not mean "yes I
Criminal Law � voir dire � evidence � inadmissible record of interview �
exercise judicial discretion where public interest outweighed by
NT Police Administration Act, S124; s137(2); s140; s142;
and s143.
Sentencing Act, S.26L
Redressing the Imbalance Against Aboriginals in the Criminal Justice
The Queen v. Murphy (1996) 66 SASR 406, referred.
Van der Meer v. The Queen [1988] HCA 56; (1988) 62 ALJR 656, referred.
The Queen v. Raso (1993) 115 FLR 319, followed.
The Queen v. Grimley [1994] NTSC 64; (1994) 121 FLR 236, applied.
The Queen v. Anunga (1976) 11 ALR 412, followed.
The Queen v. Charlie [1995] NTSC 153; (1995) 121 FLR 306, discussed.
The Queen v. Szach (1980) 23 SASR 504, referred.
Jabarula (1984) 11 A Crim R 132, referred.
Duke v. The Queen [1989] HCA 1; (1988-89) 180 CLR 508, discussed.
Williams v. The Queen [1986] HCA 88; (1986) 161 CLR 278, distinguished.
The Queen v. Butler (No. 1 1991) 57 A Crim R 451, applied.
The Queen v. Weetra [1993] NTSC 103; (1993) 93 NTR 8, applied.
Dumoo v. Garner [1998] NTSC 8; (1998) 7 NTLR 129, applied.
Collins v. The Queen [1980] FCA 72; (1980) 31 ALR 257, applied,
The Queen v. Swaffield [1998] HCA 1; (1997) 192 CLR 159, referred.
R v Jako & Ors [1999] NTSC 46
These applications are brought pursuant to s26L of the Evidence Act,
objections having been taken to the admissibility of certain alleged
admissions made to the police by each of the accused. For reasons of
convenience, the applications were heard separately, although the accused
The indictment, to which each of the defendants have entered pleas of not
guilty, alleges one count of aggravated robbery, one count of aggravated
unlawful use of a motor vehicle and one count of murder.
Certain background facts are common to each application, and it is
convenient to mention them at this stage. At 21.13 hours on Tuesday 4
November 1997, the police at Alice Springs were advised by St John`s
Ambulance that there was a deceased female at the Col yer Creek roadside
stop, a few miles north of Alice Springs along the Stuart Highway. The
ambulance had been requested by a telephone call made earlier that evening
by a person who gave his name as Russell Marshall from Tennant Creek.
Police attended at the scene at approximately 9.25pm and were shown the
body of the deceased, one Edeltraud (Edie) Thomas, who appeared to be
about sixty years of age. The deceased was found in close proximity to a
Toyota Landcruiser station wagon. Subsequently a Sergeant Eaton attended
the scene, and shortly after that the officer in charge of the CIB was
advised. A number of detectives were then called on duty and attended the
The following observations were made at the scene. The deceased was lying
on her back about two metres from the front left passenger side of the
vehicle, her head facing towards the vehicle. She had an obvious injury to
her left arm which was lying across her chest. She was wearing a singlet
and shorts, but was barefooted. There were what appeared to be drag-marks
from the front of the vehicle to where the deceased was lying. There was a
large amount of personal property spread in a haphazard manner around the
scene. There were some indications that someone had attempted to move the
The Crown alleges that fingerprints located on the vehicle included one from
the accused Emily Jako located on the outside of the vehicle, and one from
Mavis Robinson located on the passenger door. According to the opinion of
Dr Kevin Lee, forensic pathologist, the deceased`s death was consistent with
The case which the Crown intends to prove at the trial was explained by the
From enquiries it seemed that the deceased had been living at Colyer
Creek for a period of some weeks prior to her death and a second
person, a Mr John Malanut, had also been residing at Colyer Creek
during this time. As a result of the police enquiries, it would seem
that during the afternoon of Tuesday 4 November 1997, Emily Jako,
Theresa Marshall, Mavis Robinson and Jacob Blau, travelled to
Colyer Creek roadside stop. They went in Mr Blau`s vehicle which
When they arrived there they sat under a sheltered area where the
women began to drink some wine. At about 5.30pm, Mr Malanut
returned to Colyer Creek where he`d been camping, and parked his
vehicle, which was a red Ford station wagon. He was parked about
fifty metres from the group and he also had a view of the deceased`s
vehicle. At some time after his arrival, he was approached by Mr
Blau who spoke to him for a short time, and at around sunset they
were joined by Emily Jako, Mavis Robinson and Theresa Marshall.
All three women were intoxicated, but Marshall and Robinson
appeared to be more affected than Emily Jako. After a short period
of time, Emily Jako called out to the deceased claiming that she had
a message for her from the Red Centre Resort, and she then walked
down towards the deceased. As she walked down to the deceased,
she was then joined by Marshall and Robinson. There was some
yelling in the group which continued for approximately fifteen
The group then walked up towards the vehicle where Mr Blau and
Malanut were and there continued some argument about the message
from the Red Centre Resort. A short time after that, Mr Malanut
decided he was going to go back to Alice Springs, and offered the
The deceased said to him that, They have taken my keys. One of
the women said, No, we`ve just thrown them away in the bushes.
He again offered the deceased a lift into town and she said, No, I
can`t leave my camp and car. He then drove back into town alone.
It`s then alleged that Ms Jako demanded money from the deceased,
punched her and took her purse. The women then went down to the
vehicle and one of the women started the vehicle. The deceased was
standing behind it, yelling out, Leave my car alone. The vehicle
was reversed directly over the deceased, and it continued reversing
until it hit a barbed wire fence and became bogged.
The deceased was killed and her body ended up near the front of the
vehicle towards the passenger side. She was then dragged from
under the vehicle by Marshall with the assistance of either Jako or
Robinson, and she was dragged approximately one metre from the
vehicle. The three accused then went through the deceased`s
possessions in the vehicle, taking an amount of property and money,
which was put in Mr Blau`s vehicle, the other property left scattered
They then drove back to Alice Springs, leaving the deceased at
Colyer Creek. On arrival at Alice Springs, Mr Blau drove to the
truckstop, the Shell Truckstop, north of Alice Springs. Mr Malanut
was at the stop and spoke to Mr Blau who told him that she`d been
injured by her dog and required an ambulance. Mr Blau then
contacted St John`s Ambulance, advising that a woman needed
Some items were then purchased at the truckstop and the group
returned to house number six at Karnte Camp here in Alice Springs,
and some of the property was placed in Emily Jako`s house. On
Wednesday 5 November, Mr Blau and Ms Jako were located by the
police in the Alice Springs town area where they subsequently
attended the police station and statements were taken from them. Mr
Blau`s vehicle was taken possession of by the police for some
Following their attendance at the police station, Mr Blau and Ms
Jako returned to Karnte Camp and it`s alleged they removed some of
the property from a house, hiding it in the bushes some seven
hundred metres from the home. Ms Jako gave a short-wave radio
belonging to the deceased to her sister, Betty Jako. She also hid an
eight millimetre camera belonging to the deceased in the yard
As a result of the information provided by Emily Jako and Mr Blau
to the police, Mavis Robinson was arrested on 5 November and
Theresa Marshall was arrested in the early hours of 6 November.
Following further investigation by the police, a warrant was executed
... And there was property located. There was also property found in
the bushes, as was the short-wave radio. Whilst the police were
executing the warrant, Ms Jako and Mr Blau had returned to their
residence where they were subsequently arrested and taken to the
Alice Springs Police Station. And it`s the conversations that took
place in the town area as well as during the course of the
investigation by the police that my friend takes issue with, Your
Mr Birch indicated that the Crown would seek to rely upon the following
a conversation between Ms Jako and Detective Brayshaw in the
presence of Detective Dooley-McDonnell on 5 November 1997
at 1.30pm. This conversation was not recorded electronically,
but notes were made of it by Detective Dooley-McDonnell
(b) a tape recorded conversation between Constable Dooley-
McDonnell and Ms Jako at Alice Springs Police Station on 5
a tape recorded conversation between Detective Brayshaw and
Ms Jako outside house 6, Karnte Camp on 6 November 1997
(d) a tape recorded conversation between Detective Brayshaw and
Ms Jako at the Alice Springs Police Watchhouse on 6 November
a video taped and tape recorded conversation between Detective
Senior Constable Michael Kelly and Ms Jako in the presence of
Senior Constable Garry Smith at the Alice Springs Police
Station on 6 November 1997 commencing at 6.55pm (Ext P7);
a tape-recorded conversation between Detective Kelly and Ms
Jako in the presence of Detective Dooley-McDonnell at Alice
Springs Gaol commencing at 9.50am on 18 November 1997.
Each of these conversations is objected to by Mr Hartnett, counsel for Ms
According to the evidence of both Detectives Brayshaw and Dooley-
McDonnell, both were called on duty at 5.30 and 6.00am respectively on 5
November 1997. On arrival they were briefed by Detective Kelly
concerning the death of Ms Thomas. According to Detective Dooley-
McDonnell, at this stage of the investigation little was known about how Ms
Thomas had been killed. The cause of death was not yet established. The
police at that stage thought the death was suspicious, that a vehicle was
involved and that Ms Thomas may have been run over by the vehicle. At the
briefing they were also informed about the call to the St John`s Ambulance,
and were tasked to check the roadside stops and Abbott`s Camp, and to see
if a person called Russell Marshall could be located. They pro ceeded first
to check the roadside stops; then went to Abbott`s Camp where a trailer
belonging to the deceased had been located. Certain further enquiries
having been made at the Camp, they returned to their vehicle and returned to
the police station, where they were tasked to attend at an area surrounding
Master Path, which is presumably an Alice Springs business of some kind.
As they drove north along the Stuart Highway through the intersection with
Wills Terrace, Detective Brayshaw saw a yellow Ford Falcon station wagon
bearing South Australia registration plates heading south, with three
occupants. Brayshaw claims to have seen a green sheet to the affect that a
yellow-orange coloured station wagon had been seen in the vicinity of
Colyer Creek. (The green sheets are pieces of paper on which the
investigators were individually tasked by their superiors during this
investigation). Detective Brayshaw, who was driving, told Detective
Dooley-McDonnell what he had read, and turned his vehicle around to
follow along the Stuart Highway. The station wagon stopped outside the
toilets on the Stuart Terrace service lane; it is not clear why the driver did
so. It was not suggested that the station wagon had been pulled over by the
police, who were driving an unmarked car. The police stopped nearby and
As the police approached the station wagon, the occupants were alighting
from the vehicle. Detective Brayshaw introduced himself as a police
officer. Precisely what happened next is confused. Acco rding to Detective
Dooley-McDonnell, Detective Brayshaw spoke to the male occupant of the
vehicle, Mr Jacob Blau who was the driver, whilst she spoke to a female
passenger, Emily Jako. The evidence is unclear as to what the police said to
Mr Blau or Ms Jako. According to Detective Brayshaw, he said You must
be Russell Marshall. Blau said his name was Jacob Blau, that he was the
person who had rung the St John`s Ambulance about Ms Thomas the
previous evening. According to Detective Brayshaw, Mr Blau insisted that
he had given the name Blau to the St John`s Ambulance. According to
Detective Dooley-McDonnell, Ms Jako said: I already know about that
woman. She`s dead. We went to pass [on a] message [from] relatives and
rang 000. I heard it on the news at six o`clock. What, if anything,
prompted Ms Jako to say this, is a mystery. According to the police
statements, Jako spoke first, and said this after Brayshaw had identified
himself. Detective Dooley-McDonnell in her evidence said that her
statement was incorrect in that she spoke with Jako after Brayshaw had
spoken to Blau. According to both officers neither Blau or Jako were
suspects at this stage. They were asked to come to the police station to
provide statements and agreed to come. They were driven by the police, the
Ford being left where it was. They were not under arrest.
The state of the evidence about this conversation is most unsatisfactory.
Neither officer has a clear recollection of what was said or by whom. It is
hard to believe that the words attributed to Ms Jako were simply blurted out,
the moment Brayshaw identified himself, without more having been said.
The conversation was not recorded. According to the evidence, Detective
Dooley-McDonnell made notes of the conversation subsequently. The notes
were not tendered in evidence, but do not seem to have been of much
assistance to the police whose evidence concerning this conversation was
vague and unsatisfactory. None of the conversation was confirmed when the
Mr Birch, for the Crown, submitted that the conversation is voluntary, and
therefore admissible. I agree. Ms Jako did not give evidence. On the facts,
there is nothing to suggest that whatever Ms Jako said was involuntary. Mr
Hartnett, for Ms Jako, submitted that I should find that Ms Jako was a
suspect and should have been cautioned. I do not consider it necessary to
decide that question. In my opinion this conversation should not be
admitted because it would be unfair to do so, as the context of the words
uttered by Ms Jako has not been satisfactorily proven, and cannot now be
established and without that context, it may lead a jury to infer, possibly
wrongly, that Ms Jako had blurted something out, which was indicative of
her guilt. I therefore reject the first conversation in the exercise of my
After the police, Mr Blau and Ms Jako had arrived at the police station, Mr
Blau and Ms Jako were taken to separate interview rooms, with the intention
of interviewing them separately. Mr Blau was provided with refreshments
whilst the police spoke to Ms Jako. According to the police, before the
interview got under way, there was a preliminary conversation in which Ms
Jako said that the deceased had been living with a man called John Russell
who drove a red XD and who may be at the lawns of the Alice Springs
For some reason which was not satisfactorily explained, the police were
apparently directed by their superior officer to try to locate this Mr Russell.
Ms Jako was left in the interview room in the meantime. Detective
Brayshaw could not explain why she was not asked to wait in the public
area, or asked to return later and there appears to be a diary note that Blau
and Jako were being looked after by a Detective Skennar. However,
neither Blau nor Jako had any special needs. The inference that I am invited
to draw is that Jako was not free to leave the police station. Nevertheless
Detective Brayshaw maintained that Ms Jako was not being guarded.
Detective Skennar was not called to give evidence; nor was the person who
made the note. In any event, the police went to the Council lawns, located a
red XD Ford Falcon station wagon, and the registered owner thereof, a Mr
John Malanut, who agreed to return with them to the police station to
It appears that Malanut was interviewed first, his interview commencing at
12.26 hours, nearly one and a quarter hours after the police had left the
station in order to locate him. His interview lasted until 1.08pm. According
to Malanut, he had been camping at Colyer Creek for the past two weeks.
He had met Ms Thomas, and had spoken to her, and on occasions she had
asked him to mind her belongings if she left her camp. On 4 November, he
said he had driven out to Colyer Creek at a little after 5pm. He was unable
to camp at his usual spot where there are tables and chairs as there were
three Aboriginal women drinking there with a white man, so he parked at a
spot further down the creek. The description he gave of the man fitted that
of Jacob Blau. He related a conversation he had had with Blau to the effect
that they did not intend staying long; and that they had been at the Red
Centre and had received a message to relay to Ms Th omas. He also gave a
description of the white man`s vehicle which was consistent with that of
Blau`s yellow Falcon station wagon. He said that the women yelled out to
Ms Thomas who was inside of her vehicle to ring the Red Centre; Ms
Thomas, who did not trust them, became abusive and told them to keep away
from her. He gave an account of how Ms Thomas had got out of her vehicle
to get some water, and the Aboriginal women approached the side of her
vehicle. After that, he heard Ms Thomas yelling at the women to get away
from her car, and complaining about one of the women throwing a container
at her, and of another having a pocket knife. After that, the Aboriginal
women came back and he saw that one woman had a small cut on her arm
which she claimed had been done to her by Ms Thomas. After that, he said
there was some more conversation between Ms Thomas and those present,
and after Ms Thomas had asked him to come over he started to walk towards
her camp. The others came as well, but Ms Thomas kept sayin g that she did
not trust them. Later she came running up to him, complaining that she
could not find her car keys, which she said the others had thrown away. He
asked Ms Thomas if she wanted to leave Colyer Creek with him, but she
said she did not want to leave her belongings behind as they might be stolen.
She asked him to go to the police, but later, changed her mind. He left at a
little after 8pm and stopped near a Shell service station where he used the
toilet. About half to three quarters of an hour later, the others arrived. He
spoke to the man who said that Ms Thomas had been bitten by her dog, had
fallen on some rocks and hurt her leg, and he was going to ring the
ambulance. He saw one of the Aboriginal women, whom he described as
fatter than the others, sitting in the vehicle counting her money who told
him the same story. He saw the man make a telephone call, and overheard
him asking for an ambulance to be sent to Colyer Creek. He then gave a
description of the women. His description of the fatter woman was
Detective Dooley-McDonnell said that by the time the interview with Mr
Malanut had commenced, she believed that she was investigating a possible
homicide, but she did not believe that anythin g in Malanut`s statement lead
her to suspect at that time that either Blau or Jako, whose descriptions she
recognised, were involved in the unlawful killing of Ms Thomas. Detective
Dooley-McDonnell conceded that if Ms Jako had then declined to give a
statement, whilst she would not have formally arrested her she would have
detained her until more enquiries were complete. She explained later that
she meant by this, that she would have asked her to remain, but she would
not have arrested her. This supports the conclusion, so Mr Hartnett
submitted, that by this stage at least, if not earlier, Ms Jako was not free to
leave and was under de facto arrest, and was a suspect.
Detective Brayshaw`s evidence was similar to that of Detective Dooley-
McDonnell. He could not explain why he was tasked to interview Malanut
first; he said this was the decision of his superior officer, Sergeant Pryce.
He agreed that the descriptions given by Malanut fitted Blau and Jako, and
that he realised this during the course of the interview. He said that nothing
in the interview raised any suspicions against Blau and Jako as to their
having some role in the death of Ms Thomas. I find it hard to believe that
he did not consider their behaviour suspicious. By this time Detective
Brayshaw knew that Ms Thomas had been afraid of Blau, Jako and the
others, whom she did not trust; that there had been a complaint of some sort
of violence used between Ms Thomas and one of the women, and that
whatever had happened to Ms Thomas to bring about her death, Blau and
Jako must have known about it, as they were the only ones there apart from
the other two Aboriginal women; and that Blau and Jako`s story to Malanut
that she had been bitten by her dog and fallen over and hurt her leg seemed
an unlikely explanation for the cause of her death. Clearly Blau and Jako
either had something to do with Ms Thomas`s death, or knew who did.
Detective Dooley-McDonnell`s interview with Jako commenced at 1.30pm
about twenty minutes after the interview with Malanut had concluded.
Although Detective Brayshaw could not recall, it is likely that during this
period the effect of Malanut`s statement was conveyed to Sergeant Pryce. In
any event, Ms Jako was interviewed by Detective Dooley-McDonnell in the
presence of Detective Brayshaw. Almost immediately into the interview,
Ms Jako gave an account which was totally at odds with Malanut`s
statement, because she claimed that when they arrived at Colyer Camp they
found Ms Thomas lying beside her vehicle, already dead. On her account,
Malanut was not there then; they had passed him going the other way as they
drove in. She said that she had gone to see Ms Thomas to convey a message
to her, which she had got from the resort. She said that someone had
covered Ms Thomas with a sheet. She checked her pulse and breathing, but
she was dead. She got back into the car with Jako, and they turned around
to call for an ambulance. Later, she said that she thought Ms Thomas was
still alive. She said no one else was at the camp when she and Blau arrived.
She said she knew Ms Thomas had a German Shepherd, but the dog had
been poisoned. She doubted if the dog had caused her death. At no stage
did the police put any part of Malanut`s version to Ms Jako. The only
explanation offered for this is that Ms Jako was not a suspect.
After the conclusion of the interview at 1.50pm the detectives probably
reported to Sergeant Pryce what had transpired and it appears that he
directed them to seize Ms Jako`s clothing. Detective Dooley-McDonnell
agreed that Ms Jako`s clothing was seized in the sense that she had no
choice, but she maintained, nevertheless, that she was not a suspect. After
this, she was taken home. On arrival she was asked to open her purse, for
the purpose of seeing if it contained Ms Thomas`s missing car keys, and the
clothing which Ms Jako said she was wearing was also taken. Detective
Brayshaw`s evidence on this topic was less than satisfactory. Although he
uses the word seized in his own statement, he tried to explain this away by
saying that it was a poor choice of words, and what was meant was a request
to voluntarily hand the clothes over. Then he said he was not present when
the request was made by Detective Dooley-McDonnell as this occurred in
the women`s toilet. He conceded that, without an arrest, neither officer had
any authority to seize the clothing, and that the usual practice is to record
The Crown called no evidence from Sergeant Pryce. Detective Kelly who
was the officer in charge of the investigation was called to give evidence.
He was engaged with other duties during this time, and the job of tasking
individual officers was left to Sergeant Pryce, the officer in charge of the
CIB at Alice Springs. He said he was consulted by Sergeant Pryce and kept
informed as to what was happening. For most of the time that Blau and Jako
were at the police station, he was at the mortuary whilst Dr Lee carried out a
Mr Hartnett submitted that on the evidence I should find that Jako was a
suspect at the time of the interview and held in de facto arrest. Both
detectives have denied that she was a suspect. One of the difficulties for Mr
Hartnett`s submission is that, at that stage, the police had not established the
cause of death, or, if they had, this was not known to Detectives Dooley-
McDonnell and Brayshaw at the time of Ms Jako`s interview. What the
police knew was, as Detective Kelly said, that Ms Thomas had been run over
by her own vehicle, but they had no idea how that had come to pass,
although the circumstances were suspicious, and it was a possible homicide.
At that stage, there was no evidence of a robbery, or of any of Ms Thomas`
belongings missing. Clearly the behaviour of Jacob Blau was suspicious, in
that he had given a false name to the ambulance officers, and had lied about
not using the false name to the police. But there was still no evidence of
what had happened, and if any crime had been committed.
The difficult question is whether the investigation had reached the
accusatory stage or not. Until then, the police are permitted to conduct a
general enquiry into an unsolved crime until the stage is reached when the
accusatory stage begins, at which time, the police are obliged to administer
a caution to a suspect. Until then, the police are entitled to gather
information � including giving possible suspects the opportunity to clear
themselves � without administering a caution: see R v Murphy (1996) 66
SASR 406 at 411 � 412. The beginning of the accusatory stage is
notoriously difficult to define: see Mason CJ in Van der Meer v The
Queen [1988] HCA 56; (1988) 62 ALJR 656 at 661. The Judges Rules attempted to meet this
difficulty by imposing the obligation to administer a caution at one of three
possible stages: (1) when a police officer had decided to charge a suspect
with a crime; (2) when a suspect is taken into custody; or (3) when a
suspect was in fact charged. In addition, if the police have sufficient
evidence in their possession to warrant a charge, the same stage is reached
even if the police have not yet decided to lay a charge: Van der Meer,
(supra), at 661; R v Murphy, (supra), at 412. Until the accusatory stage is
reached, there can be no question of involuntariness or unfairness arising
Mr Hartnett`s submission that Ms Jako was a suspect was based upon the
following main considerations: the police were clearly interested in locating
Russell Marshall. Initially he was the only lead they had. When Detectives
Brayshaw and Dooley-McDonnell first spoke to Blau, he admitted that he
had called the police, but denied he had used the name Marshall. Brayshaw
had listened to the tape recording of the phone call and had heard the caller
use the name Marshall. Blau and Jako were taken to the police station in a
police vehicle and put into separate interview rooms. Having been told of
John Russell (who happened to be John Malanut) the police decided to
locate him and interview him first. The purpose of this is to gather
information concerning Blau and Jako`s involvement. They were left
waiting in the interview room under the watchful eye of Mr Skenner. By the
time Malanut has been interviewed, the only inference is that the police have
decided that Blau and Jako are both suspects. Mr Hartnett also made a
number of forceful submissions concerning the credibility of the account
given by both officers. Nevertheless I do not consider that Ms Jako was a
suspect at this stage. For a person to be considered a suspect`, there must
be at least some evidence that a crime has been committed, beyond that of
mere speculation, based on some factual foundation: see R v Raso (1993)
115 FLR 319 at 350, per Ormiston J. At this stage, this was very doubtful.
In R v Grimley [1994] NTSC 64; (1994) 121 FLR 236 at 258 � 259, Kearney J discussed the
notion of what is a suspect, and concluded that it is a state of mind arising
from a consideration of known facts, less than that required for a belief,
... resulting in an apprehension that the person might possibly have
committed the offence. It requires a degree of conviction which is
beyond mere speculation, and based upon some factual foundation.
If this be the correct test, I am satisfied that neither Detective Dooley -
McDonnell nor Detective Brayshaw had got past the stage of speculation, so
far as Jako is concerned. Even at the end of the interview with Jako, the
police had no evidence that a crime had been committed, and no evidence
that Jako had anything to do with Ms Thomas` death, albeit that her story
strongly suggested that her account to the police was untrue. In my view,
the stage had been reached where there was only reason for investigating
whether or not a crime had been committed, and if so, by whom: cf. R v
Raso (1993) 115 FLR 319 at 329 per Phillips CJ and Marks J. I have
considered Detective Dooley-McDonnell`s evidence at tr. pps 39 � 40, as to
the course she would have taken if Ms Jako had refused to answer any
questions. I am satisfied that Ms Jako was not under de facto arrest. Ms
Jako did not give evidence that she felt compelled to stay at the police
station and was not free to go. Detective Dooley-McDonnell`s evidence
made it clear that she did not feel there was enough evidence to arrest her on
the evidence of Malanut alone. This is supported by the fact that she was
not in fact arrested after the interview. I have also considered the
implications flowing from the circumstance that Detectives Dooley -
McDonnell and Brayshaw were carrying out instructions from Sergeant
Pryce who was not called to give evidence and that Sergeant Pryce
instructed Detective Dooley-McDonnell to seize Ms Jako`s clothing. Mr
Hartnett suggested that the police, through Sergeant Pryce, adopted a
deliberate policy of closing their eyes to reality, hoping to give Ms Jako
enough rope to hang herself (to use a vernacular expression), and so as to
avoid having to administer a caution, or otherwise comply with the
guidelines laid down in R v Anunga (1976) 11 ALR 412. I have given this
submission careful consideration. The main problem that I find with it is
the lack of any objective evidence available to the police at the stage of the
commencement of the record of interview sufficient to have justified a
charge. In the end I have reached the conclusion, notwithstanding the
unsatisfactory nature of the police evidence on a number of matters, that the
investigatory stage of the investigation had not reached the accusatory stage
at any time before or during the interview with Ms Jako. In those
circumstance, I find that Ms Jako`s statement was voluntary and that there
are no reasons for declining to admit it in the exercise of my discretion
based on the failure to caution or comply with the Anunga guidelines.
Mr Hartnett`s alternative submission was based on s142 of the Police
Administration Act. Mr Hartnett submitted that Ms Jako was a person
suspected of having committed an offence, within the meaning of that
section. I have difficulty in understanding this submission. The section
provides that, if a confession or admission is made to a police officer by a
person suspected of having committed a relevant offence, the confession or
admission is inadmissible unless it is electronically recorded. Assuming
that Ms Jako was a suspect, the fact is that what she said was electronically
recorded. If she was not a suspect at the time of the statement, as I have
held, in my opinion s142 does not apply. Mr Hartnett submitted that, in fact
there was a questioning by the police during the fifth conversation at 6.55pm
on 6 November 1997, and that, because the second conversation was not
confirmed in that conversation, the evidence was inadmissible. I reject this
submission. The submission suggests that if a statement, which is recorded,
is made before the commencement of questioning, it is inadmissible if
there is subsequently questioning, but the substance of the conversation is
not confirmed electronically during the questioning. I do not consider that
this is the true effect of s142(1). In the first place, the natural meaning to
be given to the language of s142(1)(a) is that it applies only to statements
made to police who were suspects at the time the statement was made. But
in any event, what would be the point of confirming electronically that
which is already recorded? I think it is implicit in s142(1)(a) that the
admission or confession referred to, is one which was not previously
recorded. If I am wrong in this view, I would admit the evidence anyway
under s143 of the Act on the basis that, the conversation having been
properly recorded and available to be tendered in evidence, the admission of
the evidence would not be contrary to the interests of justice. Mr Hartnett
suggested that the reason for confirming something already recorded is
that what is required to be confirmed, is, not what was said, but the truth of
what was said. There is some force to this submission. In R v Charlie
[1995] NTSC 153; (1995) 121 FLR 306 at 312 I said:
Counsel for the Crown submitted that the substance of the confession
was confirmed in the recorded interview between Detective Baird
and the accused. The Crown`s submission was that the section is
directed towards the substance of the admission, not the substance of
the conversation which contains the admission. Counsel for the
accused, Mr Davies, submitted that it is the conversation containing
In my view it is sufficient if the relevant facts which are admitted are
confirmed. It is not necessary to confirm the whole conversation.
Section 142(1)(a) specifically uses the words the substance of the
admission, indicating that it is the admitted facts which have to be
confirmed not necessarily the conversation during which the
admission is made. Contrast this with s142(1)(b) where the
questioning and anything said by the person must be electronically
However, that passage does not say that confirmation of the whole
conversation would not amount to compliance; only that confirmation of the
admitted facts is sufficient. Whilst it is true that if the suspect is asked to
not only confirm what was said, but also the truth of it, this adds weight to
the confession as well as gives the suspect an opportunity to offer any
explanation he may have for any change in his story, I do not think the
section requires this. It is not so much the truth of the admission or
confession which the section is primarily concerned with, but the fact that it
was made, and the substance of what exactly it was that was said, that needs
The submission has more force in relation to the admissibility of the first
conversation, but as I have rejected that conversation, I do not need to
consider it further. Mr Hartnett suggested, in a submission one hears not
infrequently these days, that if I rejected the first conversation, the second
should also be rejected as having been somehow tainted`. There is no
substance to this submission in the circumstances of this case. The two
Finally, Mr Hartnett suggested that the police had acted unfairly to the
accused in not telling her what information they already had. In other
words, he complained that the police should have put Malanut`s statement to
Ms Jako, and that the failure to do so acted unfairly towards her. In support
of his submission, Mr Hartnett relied upon a passage in the judgement of
Brennan J (as he then was) in Duke v The Queen [1989] HCA 1; (1988-89) 180 CLR 508 at
If, by reason of the manner of the investigation, i t is unfair to admit
evidence of the confession, whether because the reliability of the
confession has been made suspect or for any other reason, that
evidence should be excluded. Trickery, misrepresentation, omission
to inquire into material facts lest they be exculpatory, cross-
examination going beyond the clarification of information
voluntarily given, or detaining a suspect or keeping him in isolation
without lawful justification � to name but some improprieties � may
justify rejection of evidence of a confession if the impropriety had
some material effect on the confessionalist, albeit the confession is
reliable and was apparently made in the exercise of a free choice to
speak or to be silent. The fact that an impropriety occurred does not
by itself carry the consequence that evidence of a voluntary
confession procured in the course of the investigation must be
excluded. The effect of the impropriety in procuring the confession
must be evaluated in all the circumstances of the case.
The point is discussed in more detail in a passage in the judgement of King
CJ in The Queen v Szach (1980) 23 SASR 504 at 582 � 583. Without
quoting the whole passage, the nub of it is that the learned Chief Justice
considered that there is no unfairness or trickery involved in police
withholding information from a person who is not a suspect; but once the
investigation reaches the stage that the police are satisfied about the nature
of the crime that has been committed and believe that it was committed by a
particular person, fairness requires that the person be told of the nature of
the crime under investigation at an earlier stage than the police may be
required to give a caution. I do not consider that stage had been reached in
Accordingly, the record of interview, (Ext P2), will be admitted into
This conversation occurred on 6 November 1997 at 2.41pm when the police
arrived at Ms Jako`s house with a search warrant. By this time, the police
had interviewed Mavis Robinson and Theresa Marshall, the autopsy had
been completed and according to Detective Kelly, he had formed the opinion
based on those statements that he had sufficient evidence to arrest Ms Jako
for the murder of Ms Thomas. The conversation began betwee n Ms Jako
and Detective Brayshaw who told the accused that he had a search warrant.
Before anything else much was said, Detective Kelly interrupted the
conversation and informed the accused that she was under arrest for murder.
The accused protested her innocence. She was told that she would be
conveyed to the police station and spoken to further at a later time. She was
told she was being held under s140 of the Police Administration Act (sic)
and advised that she had the right to contact someone to let them know that
she had been arrested, and Ms Jako said she wanted to ring legal aid. She
was not advised of her right of silence. After this Detective Brayshaw
explained to her what the warrant was for and, in effect, asked for her
assistance to locate certain items. The conversation continued about certain
items, about which the accused told Brayshaw certain things about how
Detective Kelly conceded that he had an obligation to caution Ms Jako; he
said much to my embarrassment, it slipped my mind at the time. The
reference to s140 of the Police Administration Act is inaccurate; probably
Detective Kelly meant to refer to s137(2). Mr Birch, at the conclusion of
the voir dire, indicated that he does not intend to lead this conversation at
Ms Jako`s trial. A ruling is therefore strictly not necessary, but in any event
it is clear that whatever the accused said was not voluntary and is
At the conclusion of the voir dire, Mr Birch advised that the Crown does not
propose to lead this conversation either, so strictly speaking, it is not
The fourth conversation occurred on 6 November 1997 at 6.25pm at the
Alice Springs Watchhouse. It was concerned with obtaining Ms Jako`s
consent for a medical examination. No particular submission was made by
Mr Hartnett, perhaps because of the Crown`s attitude. In the circumstances
This was a video taped and tape recorded formal record of interview
conducted by Detective Senior Constable Michael Kelly in the presence of
Senior Constable Garry Smith at the Alice Springs Police Station at 6.55pm
on 6 November 1997. By this time, Ms Jako had already seen a lawyer from
the Central Australian Aboriginal Legal Aid Service.
It is apparent, right from the start of the interview, that Ms Jako was aware
of her right of silence and intended to exercise it, no doubt because she had
been advised to do so by her lawyer. Even before she was formally
cautioned, when asked if she was happy to proceed in the absence of a
prisoner`s friend, she initially did not reply, and when the matter was
pressed by Detective Kelly, she said Yes, because I`m not saying a word.
Later, after Detective Kelly has explained to her what the purpose of the
interview was, and asked her if she understood what it was all about, the
KELLY: Okay. Before I ask you any questions about that matter I
have to tell you that you do not have to answer any of my
questions or any of the questions of Detective Smith unless
KELLY: Alright. Anything you do say will be recorded and may
later be used in court. Do you understand that Emily?
KELLY: Okay. You`ve indicated you don`t wish to answer any
questions but due to the nature of the allegations I wish to
put a number of things to you. If you don`t wish to make
any comment that`s fine. Okay Emily? Do you understand
KELLY: Alright. Alright. As I said, I`ve got information that you
were involved in the death of a lady by the name of Edie
Thomas, where she was run over by a motor vehicle. Her
own motor vehicle, at Colyer Creek on Tuesday night. Do
KELLY: Okay. I`ve been told by one of the women, Mavis
Robinson, that you were the driver of that motor vehicle.
No, I`m sorry, because I don`t drive. I don`t touch the cars.
Cause was, it was Theresa and her, Therese was driving
KELLY: Okay. Did you go near that lady`s motor car at all?
KELLY: Alright. I`ve also been told that after that lady died, you
stole her key card and some tape recorders and fifty dollars
KELLY: Mmhmm. So other than the fact that Th eresa and, you say
Theresa or Mavis was driving that car. Do you wish to say
Because Mavis told me they was going to kill that old lady.
That what we heard and when we heard that, soon as we
Then we was driving further up. [Pause] Then we come
back and saw (inaudible) old lady still alive. We came
back and they said oh, she`s gone. She fall on the rock.
KELLY: Well as I said, I have information that that`s in fact not true
and that you were involved in the death of that lady.
KELLY: Okay. Do you wish to say anything else about that?
KELLY: Okay. Do you wish to say anything else about that lady?
KELLY: If you don`t wish to say anything else about that lady I will
now er, terminate the interview. Time is 7.07pm. This
Detective Kelly conceded that he understood, right from the start, that Ms
Jako did not want to answer any questions, and that the guidelines in R v
Anunga (supra), state that in these circumstances the interrogation should
not continue, but, he said that in fairness to Ms Jako, he felt that he should
put the specific allegations made against her by Marshall and Robinson.
Counsel for the Crown, Mr Birch submitted that, although she had expressed
her desire not to say anything, when it was put to her that Mavis Robinson
had said that she had been the driver of Ms Thomas` vehicle, she exercised
her right to speak, and for a time she decided to answer Detective Kelly`s
questions, before she indicated that she was not going to answer any further
questions. Mr Birch submitted that in these circumstances, she acted
voluntarily, and there was no reason to exclude the interview on
Mr Hartnett submitted that Ms Jako`s decision to speak was not voluntary.
Having indicated her wish, this should have been respected. By putting the
allegations to her, and inviting comment, inappropriate pressure was
utilised, given her status as a tribal Aboriginal. In his submission the
statement was not voluntary; alternatively it should be excluded for breaking
guideline eight of the Anunga guidelines, which provides that if an
Aboriginal states he does not wish to answer further questions or any
In my opinion, this statement was not proved to be voluntary. The test is
whether the accused spoke in the exercise of a free choice to speak or
remain silent. Whilst there is no evidence of any inducement applied so as
to overbear her will, there is evidence of oppression. Although the
questioning was not lengthy, Ms Jako is an Aboriginal, and, as is apparent
from seeing her, ill-educated and living a traditional life style. The
questioning clearly breached guideline eight of the Anunga guidelines,
which recognises the particular vulnerability Aboriginal people have to
subtle pressure by persons in authority who persist in questioning after the
suspect has indicated his or her wish to remain silent: cf. Jabarula (1984) 11
A Crim R 132 per Muirhead J at 133. It is the experience of this Court that
few Aboriginal people would be able to resist answering questions in
circumstances such as these, where the express wish of the suspect is
ignored. The record of interview, Ext P7 is therefore inadmissible.
This conversation took place at the Alice Springs gaol, at 9.50am on 18
November 1997, some twelve days after her arrest. In the end, Mr Birch for
the Crown did not press it, so there is no need for any ruling on my part, but
it is my view that this statement would not have been admissible and that Mr
The evidence objected to by Counsel for Theresa Marshall
The only evidence sought to be led by the Crown which I have been asked to
rule upon is the admissibility of a record of interview conducted by
Detective Kelly at 8.30am on 6 November 1997 (Ext P8). It was submitted
by Mr Rozencwajg for Ms Marshall, that the record of interview was
inadmissible as it was involuntary; alternatively that I should reject it on
discretionary grounds. At the conclusion of the voir dire, I reserved my
decision. The following morning I was due to commence the voir dire
involving Mavis Robinson. Mr Rozencwajg appeared in relation to an
application concerning Ms Marshall`s bail. I advised Mr Rozencwajg and
Mr Birch that I had reached the conclusion that the record of interview was
inadmissible, and, that, if I were wrong about that, I would have in any
event excluded it on the exercise of my discretion. I said I would publish
my reasons at a later time, and now do so. Before doing so, I should also
record that later that day, the Crown prosecutor announced that he did not
intend to adduce any other evidence against Theresa Marshall, and he
directed my attention to a recent amendment to the Criminal Code in the
an accused person pleads not guilty of an offence; and
the Crown does not intend to adduce any evidence in
the Crown must, before a jury is empanelled, inform the court of its
On being informed by the Crown under subsection (1), the
court must make a finding that the accused is not guilty of
A finding of not guilty under subsection (2) has effect as if
it were a not guilty verdict of a jury on the offence.
Accordingly, I made a finding that the accused Theresa Marshall was not
guilty of the offences charged in the indictment in accordance with
By 2.34pm on 6 November 1997, Detectives Brayshaw and Dooley -
McDonnell had been tasked to locate and interview Ms Marshall. At that
time, they are made aware of the existence of an outstanding mesne warrant
for her arrest. Detective Brayshaw was also aware at that stage that Ms
Marshall was a suspect in the investigation of the murder of Ms Thomas.
From then on, Detective Brayshaw said that he and Detective Dooley -
McDonnell were mainly engaged in attempting to locate Ms Marshall. At
some stage later that day, Detective Brayshaw became aware that his task
had changed; he was now required to arrest Ms Marshall and bring her to the
Alice Springs Police Station, where she would be questioned by Detective
Kelly concerning the death of Ms Thomas. Detective Dooley -McDonnell
The following morning, shortly before 6.40am, the two detectives went to
Namatjira Camp, a relatively primitive Aboriginal camp located not far from
Alice Springs. Upon arrival, they were directed to a tin shed, banged on the
door, and when Ms Marshall emerged, she was promptly told that she was
being arrested on the outstanding warrant. She was not told that she was a
suspect in relation to the murder of Ms Thomas; nor was any formal caution
administered. Part of the conversation relating to her arrest was tape
recorded. However, the police also asked Ms Marshall to show her what
clothing she had worn the previous day, and this was seized. It is clear that
the purpose of this was to gather possible evidence in relation to the murder
investigation, even though the seized clothes could not have assisted that
enquiry. It is common ground that the police had no power to seize that
clothing, and acted unlawfully. It is also clear that the arrest warrant was
used to take Ms Marshall into custody so that she could be interrogated by
the police as to her involvement in Ms Thomas` death. I reject the
suggestion by Detective Kelly that it was a mere co-incidence that a warrant
was outstanding. The existence of the warrant would not, in the ordinary
course, have come to the attention of the CIB unless they activated the IJIS
system to see if there were any outstanding warrants in existence.
Outstanding mesne warrants are not normally enforced by the CIB.
Detective Kelly conceded that the warrant was never at any time shown to
Ms Marshall, as required by s124(2) of the Police Administration Act. It is
also clear that, at the time of her arrest, the police did not have enough
information to arrest her for any offence. I conclude that the warrant was
used for the sole purpose of holding Ms Marshall so that she could be
interrogated. This was clearly a misuse of police power.
It is also clear that the police did not do what the warrant authorised them to
do, namely, bring Ms Marshall before the Court of Summary Jur isdiction at
Alice Springs to be dealt with according to law. The day of Ms Marshall`s
arrest was a Thursday, a day when that Court is normally sitting in Alice
Springs. Ms Marshall was not taken to the Court; she was taken to the
police station and purportedly held under s137 of the Police Administration
Act. She was interviewed, and eventually arrested and charged with murder.
Her arrest for murder occurred at 1227 hours on 6 November 1997, ie at a
time well after she should have been taken to the Cou rt of Summary
Jurisdiction unless her further detention was otherwise lawful.
It is clear that the police had acted unlawfully in holding Ms Marshall after
10.00am. Subject to s137(2), s137(1) of the Police Administration Act
required the police to take her before the Court by no later than 10.00am.
S137(2) authorises the detention of a person taken into lawful custody to
continue to be held in custody for a reasonable time to enable the person to
be questioned to obtain evidence in or in relation to an offence that the
member believes on reasonable grounds involves the person, whether or not
it is the offence in respect of which the person has been taken into custody.
In my opinion this provision does not authorise detention where the arrest is
made pursuant to a mesne warrant. This is made clear by the words of
subparagraph (a) of s137(2), viz, whether or not it is the offence in respect
of which the person has been taken into custody. Clearly the draftsman of
the subsection envisaged that the original arrest would have been in relation
to an offence, not in relation to a failure to answer bail. It is a serious thing
to imply to the legislature that the police should have the power to avoid
compliance with an order of a Court, and unless the language is intractable,
I do not think s137(2) should be so interpreted. In any event, on the facts of
this case, there is no evidence that Detective Kelly believed on reasonable
grounds at this time that Ms Marshall was involved in any offence at all,
albeit she was a suspect. However, the challenged record of interview was
already completed by 9.55am. The Police Station is next door to the
Courthouse, and the police could easily have presented her to the Court
then. Any illegality in holding Ms Marshall after 10.00am is therefore not
relevant to the question of the proprietary of questioning her before that
time. Consequently, there is no discretionary basis to exclude the record of
interview on the grounds of any unlawful detention: c.f. Williams v The
Queen [1986] HCA 88; (1986) 161 CLR 278, where the records of interview were taken after
the time at which the accused should have been brought before a Justice.
Before the formal record of interview commenced, she was spoken to by
Detective Brayshaw concerning some hair samples, having already spoken to
a legal aid lawyer, and subsequently, at a little before 7.00am she was
spoken to by Detective Kelly for the first time. It is not in dispute that Ms
Marshall is a full blood Aboriginal who speaks very limited English.
During this conversation Detective Kelly administered the standard caution
to her in English. No attempt was made to obtain an interpreter at this
stage, and no attempt was made to comply with guideline three of the
Anunga Rules. It is clear that the Crown is unable to show on the balance of
probabilities that Ms Marshall understood the caution, and indeed, Detective
Kelly conceded that he did not believe that she did. Detective Kelly asked
her if she wanted someone to sit with you, to be your friend, to give you
some advice and Ms Marshall nominated Marcus Driffen. No attempt was
made at this stage to comply with the guidance offered by this Court in R v
Butler (No 1) (1991) 57 A Crim R 451 at 452 � 453 or R v Weetra (1993) 93
NTR 8 at 11 �12 which deal with the need to ensure that an adequate
explanation is given to an accused person of the role of a prisoner`s friend
to ensure that the prisoner`s choice is not an ill-informed and ill-advised
one: see also Police Standing Orders Q2 7.4.1.; Dumoo v Garner (1998) 7
Detective Kelly, to his credit, arranged for an interpreter to be obtained and
the formal record of interview commenced at 8.30am in the presence of Mr
Driffen, the interpreter Ms Swan, and Constable Gerry Smith. No effort was
made to advise Ms Marshall further as to the role of a prisoner`s friend.
Detective Kelly gave evidence that before the formal interview commenced,
he explained the role of a prisoner`s friend to Mr Driffen in general terms.
This explanation was not tape recorded, as required by Police Standing
Order Q2 10. When asked why this was not attended to, Detective Kelly
The role of the prisoner`s friend was discussed very briefly in the formal
record of interview. Not much more was said other than that Driffen was
there as a friend for Marshall, and to support her, and that he could speak to
her at any time in her own language. Not all of the matters required to be
explained by Police Standing Order Q2.9 were covered, especially the right
of the suspect to seek advice from or communicate with the friend at any
time. I am not satisfied that either the accused or Driffen properly
understood the role of prisoner`s friend, and watching the video tape of the
record of interview did nothing but to raise further doubts in my mind. For
most of the interview Mr Driffen did not get involved. On one occasion
early in the interview when he spoke to the accused in her own language, he
was stopped by Detective Kelly who explained that the interpreting was to
be done by Ms Swan. As a consequence, Driffen played no role in the
difficult process of explaining to Marshall her right of silence � yet, as
Brennan J pointed out in Collins v The Queen [1980] FCA 72; (1980) 31 ALR 257 at 322, a
prisoner`s friend is intended to enhance the suspect`s ability to choose freely
whether to speak or be silent. There was no suggestion that Ms Marshall
was offered an opportunity of private consultation with Driffen before the
interview started (or at any time during the interview). The steps taken � or
rather, not taken � by Detective Kelly had the effect, intended or not, that
Driffen was unable to play any useful role as a prisoner`s friend.
It is also apparent that, notwithstanding that an interpreter was available, Ms
Marshall did not understand the caution. It must not be thought by police,
that just because an interpreter is used, guideline (3) of the Anunga
Guidelines is otiose. As Forster J said in Anunga, supra, at p413:
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 Aboriginal languages at all
Probably one of the most difficult concepts to interpret or to explain is that
of the caution. One of the problems with the standard caution is that the
order in which the ideas and concepts are contained in the caution is liable
to create confusion. Another problem is that, in many Aboriginal cultures,
remaining silent is an indication of guilt. In an article Redressing the
Imbalance Against Aboriginals in the Criminal Justice System (1997) 21
Crim L.J. at 11 � 12, I set out a form of caution which I believe would be
more appropriate to be used with Aboriginal people, than the usual form. If
that formula, or something like it, is not used, police take the risk that the
caution will not be understood. As Forster J observed in Anunga, (supra), at
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
It is even more illogical and bewildering to tell some Aboriginal people, that
they are not obliged to answer any questions, and then insist on an answer to
the question, do you understand that? An intelligent person might think
that this is all some ritual being played out, by the police, which apparently
In the present case, Detective Kelly began by dividing the caution up into
segments as suggested by guideline (3). He began well enough, and after
telling Ms Marshall that she had a choice as to whether she spoke about
that trouble or whether she wanted to sit and be quiet, he asked her to
explain in her own words what was meant by choice`. Ms Marshall did not
respond. Ms Swan said I don`t think she understands. Detective Kelly
repeated his explanation, but this time he did not ask her to repeat back what
he had said, as suggested in guideline (3), but instead was told by the
interpreter that she had said, Yes, I hear you. He then proceeded with the
rest of the caution, by explaining it in segments, but falling into the very
trap which guideline (3) suggested he should avoid, by asking Do you
understand that? to which the inevitable response of Yes or Yeah. I hear
I do not know how many times judges of this Court have admonished police
for this ridiculous practice, and yet, it appears as resilient as ever. One
wonders what sort of training police are given by their superiors that such an
elementary error is repeated time and again by numerous police all over the
Territory, notwithstanding the frequency with which judges have pointed out
that this is a complete waste of time. No further attempt was made to get
Ms Marshall to repeat back what had been said to her.
It is plain that guidelines (2) and (3) of the Anunga Rules were not complied
with. I am not satisfied that the accused understood the caution, and spoke
in the exercise of a free choice to speak or remain silent. Ms Marshall`s
complete lack of understanding is exposed by her amusing, if not pathetic,
responses to the questions at the end of the interview:
When you talked to him today, did you wanted to talk
He didn`t say anything to make you tell these stories
He didn`t force you to say anything about the stories?
He didn`t force you to tell any stories to him, hey?
So, I didn`t make any threats or promise her anything
He didn`t promise you or said any threats to tell the
Accordingly, I was not satisfied that her admissions were voluntarily made,
and I found that therefore they were inadmissible. If it was wrong about
this, I concluded that I should not admit the record of interview in the
exercise of my discretion for the following reasons:
(1) the improper purpose of the use of the mesne warrant to arrest a
suspect for the purpose of holding the suspect under s137 of the
Police Administration Act, for the purpose of an interview;
(2) the failure to comply with the Police Commissioner`s guidelines
and the decisions of this Court in relation to giving appropriate
explanations to Ms Marshall and to Mr Driffen as to the role of
(3) the failure to comply with guideline (3) relating to t he
The combination of these factors, having regard to the dubious evidentiary
value to the prosecution of the admissions, which are mainly exculpatory,
and the seriousness of the charges faced, outweighs any public interest in
admitting it as a piece of evidence, (indeed the sole evidence), available to
the Crown in order to support the charge: see The Queen v Swaffield (1997)
[1998] HCA 1; 192 CLR 159 at 194 � 195; Dumoo v Garner, (supra), especially at 150.
The evidence objected to by counsel for Mavis Robinson
In the light of the ruling which I gave in respect of Theresa Marshall, I was
informed by counsel for the Crown that the Crown did not now propose to
lead evidence of any admissions made by Mavis Robinson which suffered
from precisely or substantially the same defects as applied in the case of
Marshall. No ruling was therefore required in relation to her admissions.
R
Jako & Ors [1999] NTSC 46
(1996) 66 SASR 406
(1988) 62 ALJR 656
(1993) 115 FLR 319
(1994) 121 FLR 236
(1976) 11 ALR 412
(1995) 121 FLR 306
(1980) 23 SASR 504
(1986) 161 CLR 278
(1998) 7 NTLR 129
(1980) 31 ALR 257
(1997) 192 CLR 159
(1996) 66
SASR 406
(1998) 7
NTLR 129
Jako’s first unrecorded conversation and specified post-arrest statements were excluded, but her recorded 5 November interview was admitted; Marshall’s interview was excluded and she was found not guilty of all charges under s 348A(2); no ruling was required on Robinson’s admissions.