R v Lawrence [2016] NTSC 65

CRIMINAL LAW - OFFENCES AGAINST THE PERSON - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - CONFESSIONS AND ADMISSIONS - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS

Whether admissions should be excluded because obtained improperly within the meaning of s 139(1) of the ENULA - impropriety said to flow from fact police failed to give caution in a language in which accused able to communicate with "reasonable fluency" - burden on party seeking exclusion of evidence to establish it was improperly obtained - nothing to suggest accused's fluency in the English language was inadequate for the purpose - unable to find accused's fluency in English was insufficient to enable him to understand the caution and its underlying concept and function.

CRIMINAL LAW - OFFENCES AGAINST THE PERSON - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - CONFESSIONS AND ADMISSIONS - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS

Whether evidence of admissions should be excluded because obtained improperly within the meaning of s 138(1) of the ENULA - method or conduct only "improper" in the relevant sense if "not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong" - method or conduct need not be intentionally improper - must be capable of characterisation as clearly and significantly inconsistent with minimum standards expected of those entrusted with powers of law enforcement - question of exclusion governed by the ENULA - ultimate focus of the inquiry concerning impropriety not whether breach of the Anunga Guidelines or General Order Q2 - focus on whether conduct in question inconsistent with minimum standards - not established that evidence of admissions "obtained improperly".

CRIMINAL LAW - OFFENCES AGAINST THE PERSON - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - CONFESSIONS AND ADMISSIONS - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS

Whether admissions should be excluded because unfair to admit the evidence having regard to the circumstances in which made within the meaning of s 90 of the ENULA - considerations informing the exercise of discretion not restricted to conduct of investigating authorities and reliability of admission in question - unnecessary to identify lack of voluntariness in order to found unfairness - may be unfairness arising without any breach of the standards of behaviour required of law enforcement authorities - accused legally represented -matter known to police in a general sense - no attempt to advise accused's legal representatives of intention to interview him again - no attempt to afford accused opportunity to take legal advice - evidence excluded on basis of unfairness.

Criminal Code (NT) s 188(1), s 192(3); Evidence Act (Cth) s 138_; Evidence (National Uniform Legislation) Act_ (NT) s 56, s 85, s 90, s 137, s 138, s 139, s 142; Police Administration Act (NT) s 14A, s 137, s 140

Gudabiv R [1984] FCA 16; (1984) 12 A Crim R 70, Parker v Comptroller-General of Customs (2009) 83 ALJR 494, R v Deng [2001] NSWCCA 153, Robinson v Woolworths Ltd [2005] NSWCCA 426; (2005) 158 A Crim R 546, applied.

Bin Sulaeman v R [2013] NSWCCA 283, Collins v R [1980] FCA 72; (1980) 31 ALR 257, Em v R [2007] HCA 46; (2007) 232 CLR 67, Foster v R (1993) 67 ALJR 550, McDermott v R (1948) 76 CLR 501, Murphy v R [1989] HCA 28; (1989) 167 CLR 94, R v Amad [1962] VicRp 75; [1962] VR 545, R v Bosman (1988) 50 SASR 365, R v Dixon (1992) 28 NSWLR 215, R v Echo [1997] NTSC 5; (1997) 136 FLR 451, R v Esposito (1998) 45 NSWLR 442, R v GP [2015] NTSC 53, R v Grant [2007] NTSC 50, R v Horton (1998) 45 NSWLR 426, R v Lee [1950] HCA 25; (1950) 82 CLR 133, R v Naa [2009] NSWSC 851; (2009) 76 NSWLR 271, R v Nagawalli [2009] NTSC 25, R v Noakes (1986) 42 SASR 489, R v Ostojic (1978) 18 SASR 188, R v Rooke (unreported, NSW Court of Criminal Appeal, 2 September 1997), R v RR [2009] NTSC 44, R v Smith (1992) 58 SASR 491, R v Suckling [1999] NSWCCA 36, R v Swaffield [1998] HCA 1; (1998) 192 CLR 159, Ridgeway v R [1995] HCA 66; (1995) 184 CLR 19, Sparks v R [1964] AC 964, referred to.

Les McCrimmon: The Uniform Evidence Act and the Anunga Guidelines: Accommodation or Annihilation? (2011) 2 NTLJ 91.

Thomson Reuters, The Laws of Australia (at 18 December 2016), 16 Evidence, "16.3 Proof in Criminal Cases" [16.3.860].

Prosecution: Office of the Director of Public Prosecutions

R v Lawrence [2016] NTSC 65

[1] A voir dire hearing was conducted on 5 and 7 September 2016 to determine the admissibility of evidence of admissions made by the accused during the course of interviews with police. On 8 September 2016 the evidence was ruled to be inadmissible. As the trial was due to commence the following week, brief ex tempore reasons were given on that day with written reasons to be delivered at a later date.

[2] The accused is charged with one count of unlawful assault contrary to s 188(1) of the Criminal Code (NT) and two counts of sexual intercourse without consent contrary to s 192(3) of the Criminal Code. The offences are alleged to have occurred on 8 July 2015 at Katherine.

[3] The accused participated in electronic records of interview with police on 15 July 2015 and 21 August 2015, during which he made certain admissions concerning the circumstances of the alleged offending. Counsel for the accused seeks to have those records of interview, and any evidence of their content, excluded from evidence. The grounds on which those exclusions are sought may be summarised as follows.

[4] As to the record of interview conducted on 15 July 2015, counsel for the accused contends:-

• (a) Evidence of the admissions is not admissible because the circumstances in which they were made were not such as to make it unlikely that the truth of the admissions were adversely affected within the meaning of s 85(2) of the Evidence (National Uniform Legislation) Act (NT) ("ENULA"). The relevant circumstances for these purposes are said to include:

  • (i) the caution required by s 140 of the Police Administration Act (NT) was administered while the accused was under the influence of alcohol, incorrectly described the alleged offending as an assault rather than a sexual assault, and incorrectly identified the date of the alleged offence as occurring "a couple of weeks ago" rather than one week prior to the arrest and administration of the caution;
  • (ii) at the time the accused was apprehended police induced him to participate in a record of interview by telling him words the effect that they "would sort it all out";
  • (iii) the accused's proficiency in the English language was inadequate for the purpose of a police interview, and he was not offered an interpreter;
  • (iv) the accused was not provided with a prisoner's friend, and was not provided with an explanation of the role and purpose of a prisoner's friend;
  • (v) the accused was not given the opportunity to take legal advice;
  • (vi) the accused was unable to demonstrate his understanding of the caution administered at the commencement of the interview;
  • (vii) the caution included a warning that the interview would be recorded and a "magistrate" and "lawyers" would hear it, but made no reference to a judge and jury as would properly denote the gravity of the charges he was potentially facing;
  • (viii) the caution included a warning that the "magistrate" who heard the evidence might release the accused or might fine him or might send him to prison, which had the real potential to mislead the accused in relation to the gravity of the charges he was facing;
  • (ix) after the caution was administered the accused was not offered the opportunity to remain silent;
  • (x) the caution was administered and the interview was conducted in circumstances where the accused had a blood alcohol content of 0.014 per cent, and had registered a blood alcohol content of 0.09 per cent less than two hours previously; and
  • (xi) interviewing police approached the interview on the basis that they wanted to "get it over and done with quickly".

• (b) Evidence of the admissions should not be admitted because it was obtained improperly within the meaning of ss 138(1) and 139(1) of the ENULA. The impropriety is said to flow from the fact that police constructively failed to caution the accused by failing to give that caution in, or translated into, a language in which the accused was able to communicate with "reasonable fluency".

• (c) Further, or in the alternative to the specific breach of s 139(1) of the ENULA concerning the caution, evidence of the admissions should not be admitted because it was obtained improperly within the meaning of s 138(1) of the ENULA having regard to the combination of circumstances described in (a) above.

• (d) The accused's lack of understanding of the caution, together with those other circumstances described in (a) above bearing on the reliability of the admissions, were such that the Court should refuse to admit evidence of the admissions in the exercise of the discretion under s 90 of the ENULA because it would be unfair to the accused to use the evidence.

[5] As to the record of interview conducted on 21 August 2015, counsel for the accused contends:-

• (a) Evidence of the admissions is not admissible because the circumstances in which they were made were not such as to make it unlikely that the truth of the admissions was adversely affected within the meaning of s 85(2) of the ENULA. The relevant circumstances for these purposes are said to include:
  • (i) having received further evidence in relation to the circumstances of the alleged offending, police induced the accused to participate in a further interview with the prospect that he would be apprised of the nature of that further evidence, and on the basis that police "needed" the accused to tell them his side of the story;
  • (ii) the accused's proficiency in the English language was inadequate for the purpose of a police interview, and he was not offered an interpreter;
  • (iii) the accused was not provided with a prisoner's friend, and was not provided with an explanation of the role and purpose of a prisoner's friend;
  • (iv) the accused was not given the opportunity to take legal advice for the purpose of determining whether to participate in the record of interview, despite the fact that he had been legally represented on two occasions before the Court of Summary Jurisdiction following his arrest on 15 July 2015;
  • (v) having received further evidence in relation to the circumstances of the alleged offending, police circumvented the accused's legal practitioners and approached the accused directly to request that he participate in a further record of interview in circumstances where they might reasonably be expected to know that had the accused taken legal advice in relation to the issue he would likely have declined the request; and
  • (vi) during the course of the interview police indicated to the accused that they had evidence showing that the account given during the interview on 15 July 2015 was untrue, and invited the accused "to tell us the real story".
• (b) Evidence of the admissions should not be admitted because it was obtained improperly within the meaning of ss 138(1) and 139(1) of the ENULA. The impropriety is again said to flow from the fact that police constructively failed to caution the accused by failing to give that caution in, or translated into, a language in which the accused was able to communicate with "reasonable fluency".
• (c) Further, or in the alternative to the specific breach of s 139(1) of the ENULA concerning the caution, evidence of the admissions should not be admitted because it was obtained improperly within the meaning of ss 138(1) of the ENULA having regard to the combination of circumstances described in (a) above.
• (d) The accused's lack of understanding of the caution, together with those other circumstances described in (a) above bearing on the reliability of the admissions, are such that the Court should refuse to admit evidence of the admissions in the exercise of the discretion under s 90 of the ENULA because it would be unfair to the accused to use the evidence.

The circumstances of the accused's arrest and the subsequent interviews

[6] The allegation is that on 8 July 2015 the accused grabbed the complainant from behind, punched her to the right side of the face causing her to fall to the ground, removed her clothing, and had sexual intercourse without her consent. The complainant was heavily intoxicated at the time, and in the course of walking back to her bush camp in the Katherine environs.

[7] The following afternoon the complainant reported that she had been raped, both to a member of a Police Force and to a medical practitioner at the Katherine Hospital. On 10 July 2015, Constable Brooke Miller took a statement from the complainant in relation to the matter. On 14 July 2015, Constable Miller took a second statement from the complainant in order to clarify precisely how it was alleged the assault took place and what happened in its aftermath.

[8] At 11:52 am on 15 July 2015, Constable Miller and Constable Steven Whiteside went to Kirby's Bar at the Katherine Hotel and located the accused in the outdoor bar area. They were in plain clothes at the time, and were accompanied by two general duties officers in uniform. The accused was advised that he was under arrest for the assault of the complainant and placed in the back of a police van. The caution required by s 140 of the Police Administration Act was administered and recorded at that time, and the accused was then taken to the Katherine Watch House.

[9] Section 140 of the Police Administration Act provides:

140 Person to be warned and given opportunity to inform friend or relative of person's whereabouts

Before any questioning or investigation under section 137(2) commences, the investigating member must inform the person in custody that the person:

(a) does not have to say anything but that anything the person does say or do may be given in evidence; and

(b) may communicate with or attempt to communicate with a friend or relative to inform the friend or relative of the person's whereabouts,

and, unless the investigating member believes on reasonable grounds that:

(c) the communication would result in the escape of an accomplice or the fabrication or destruction of evidence; or

(d) the questioning or investigation is so urgent, having regard to the safety of other people, that it should not be delayed,

the investigating member must defer any questioning or investigation that involves the direct participation of the person for a time that is reasonable in the circumstances and afford the person reasonable facilities to enable the person to make or attempt to make the communication.

[10] A video recording of the caution administered in accordance with that provision was received into evidence during the course of the voir dire hearing. The accused identified himself, gave his date of birth and said he was from Bulman. The arresting officer advised him that he was under arrest for an assault on Vicky Robinson committed "a couple of weeks ago". Although the offence was alleged to have occurred on 8 July 2015, a week prior to that time, that particular estimation or inaccuracy was not of a character which invalidated the warning. The arresting officer then advised the accused he was not obliged to make any statement, and that anything he said might be recorded and given in evidence against him.

[11] In the recording the accused speaks quietly, reluctantly and somewhat indistinctly. He does not appear obviously intoxicated. He is non-responsive to the question whether he wanted anybody contacted. He gives some non-verbal responses by nodding and shaking his head. Those matters notwithstanding, the warning was given in compliance with the statutory requirement and, as will be seen, the accused was subsequently given opportunity to inform a friend or relative of his whereabouts.

[12] On arrival at the Katherine Watch House the accused was tested to determine his blood alcohol content. The breath test disclosed that the accused had a blood alcohol content of 0.09 per cent. As a result of that test Constable Whiteside formed the view that the accused was intoxicated and he was held in custody until police could be satisfied that he was no longer intoxicated and able to be questioned. To that end, the accused was breath tested again at 1:27 pm. That test returned a reading of 0.058 per cent. Police determined that the level of that reading was such that it was not appropriate to attempt to interview the accused at that stage. The accused was tested again at 3:38 pm, and returned a result of 0.014 per cent.

[13] The interview commenced at 3:39 pm on that same day. During the course of that interview the accused admitted to slapping the complainant in the face and pushing her to the ground. He denied any sexual contact with the complainant.

[14] It is common ground that the accused did not speak to a lawyer between the time of his arrest and the time the interview was conducted. It is also common ground that the accused did not have a prisoner's friend with him during the course of the interview, and that there was no interpreter present.

[15] The accused is an Aboriginal man who has lived variously in Bulman, Beswick and Katherine. He was 30 years old at the time the first interview was conducted. When questioned during the course of the interview he indicated that he had attended Katherine High School to year 10 level; that he generally spoke English with his associates; and that he could read and write a "little bit" of English. It is plain from a viewing of the electronic record of interview that the accused's English is Aboriginal English.

[16] The first interview was conducted by Constable Miller with Constable Whiteside in attendance. During the course of the voir dire hearing Constable Miller gave evidence that she had spoken to the accused prior to the conduct of the interview. She had a number of purposes in doing so. First, she wanted to ascertain whether the accused wished to proceed with the interview at that time or to defer it to a later time. The accused indicated that he wanted to proceed without further delay. Secondly, she wanted to assess whether the accused was rested, sober and healthy, and whether he needed to go to the toilet. She was satisfied of those matters. Thirdly, she wanted to ascertain his level of schooling and assess his general comprehension prior to the interview for the purpose of determining whether an interpreter was required. She determined that an interpreter was not required. Her conclusions were consistent with those drawn by Constable Whiteside at or about the same time. In particular, he assessed the accused as being sober and in good physical condition.

[17] When asked whether she had given any consideration to the applicability of General Order Q2 in relation to questioning people who have difficulties with the English language, and in particular the applicability of the Anunga Guidelines, she said that she had considered the requirements of the guidelines before interviewing the accused. She was satisfied that he was relatively confident in the situation, that he was making appropriate eye contact, and that his body language did not indicate any level of distress. She was also satisfied that his English language comprehension was adequate for the purpose of understanding the caution concerning the right to remain silent. She also stated that the accused had been asked whether he wanted somebody to accompany him during the course of the interview, and he had declined.

[18] In response to questions put to her Constable Miller indicated that during her time in the Police Force she had interacted with a large number of Aboriginal people with varying degrees of fluency in English. Her assessment was that while the accused may not have spoken English as fluently as some people of English descent, she did not doubt his understanding of English generally or of the matters arising during the course of the interview specifically. Although she did not ask what language the accused spoke with his family or while in Bulman, her assessment was that he had an understanding of high concepts such as the right to silence but not the ability to articulate them in any technical way, and that it was apparent from his responses that he did not misinterpret the matters under discussion during the course of the interview.

[19] She stated that she had in other situations arranged for interpreters for the purpose of conducting electronic records of interview; that she had on prior occasions terminated interviews on the basis that the subject did not have sufficient comprehension of the caution and/or questions being asked and needed an interpreter for that purpose; and that she had in other situations arranged for a prisoner's friend to accompany a subject during the course of an interview where she had assessed the subject as lacking in confidence or requiring additional support.

[20] Constable Miller said that once the recording commenced the accused presented quite differently to the manner in which he had been interacting with police leading up to that time. He appeared more withdrawn. Constable Miller gave evidence that she was satisfied the accused was aware of the right to remain silent. She did not require him to repeat the caution because she was satisfied he understood. The accused never gave any indication that he did not understand the questions that were being asked of him. The accused did not provide any answer that made Constable Miller doubt that he understood the question. The accused did not at any time ask for opportunity to consult with a legal representative or otherwise to seek legal assistance.

[21] The accused was kept in custody following the interview and not granted bail. On 16 July 2015, police laid a charge of aggravated assault against the accused. He was taken before the Court of Summary Jurisdiction on that same day, and remanded in custody. On 23 July 2015, the accused again appeared before the Court of Summary Jurisdiction and was granted bail on condition that he attend a residential rehabilitation facility. On both occasions the accused was represented by the Northern Territory Legal Aid Commission.

[22] At some time following the grant of bail to the accused, police received the results of DNA testing which indicated that the accused and the complainant had engaged in penile/vaginal intercourse at some stage in the 48 hours prior to the swabs being taken from the complainant on the morning of 10 July 2015. Police had also conducted a review and analysis of CCTV footage from various cameras situated around Katherine which cast some doubt on the account given by the accused during the first interview.

[23] Constable Miller gave evidence that she wanted to speak to the accused again because she had received the further information described above in relation to the circumstances of the alleged offending. She wanted to discuss the analysis of the CCTV footage and the DNA test results which appeared to confirm sexual contact between the accused and the complainant. Constable Miller also gave evidence that she was aware that the accused had already appeared in court by that time and that he had been legally represented on those occasions.

[24] At that point in time the accused had only been charged with aggravated assault. After she received the DNA test results, it was Constable Miller's intention to charge the accused with sexual assault, and she was hoping to interview the accused again prior to laying that charge. Constable Whiteside's evidence was that he was indifferent to whether or not the accused agreed to participate in a further interview. Nothing turns on that difference.

[25] On the morning of 21 August 2015, Constables Miller and Whiteside attended the residential rehabilitation facility at which the accused was residing in accordance with the conditions of his bail. They told him in general terms that there were further matters about which they would like to talk with him. Constable Miller had no recollection of telling the accused that she intended to lay further charges in relation to those matters. She did have a recollection of informing the accused about the DNA test results at some time prior to the conduct of the second interview.[1]

[26] Constable Miller invited the accused to accompany them to the police station for the purpose of participating in an interview. Constable Miller advised the accused that he was under no compulsion to participate in a further interview. The accused consented to that course and participated in an electronic record of interview which commenced at 7:26 am that morning. It may be noted that s 140 of the Police Administration Act had no application in the circumstances as the accused was not in custody for the purpose of questioning pursuant to s 137 of that Act.

[27] At the commencement of the interview the accused was again given a caution. Constable Miller's evidence was that there remained nothing which caused her any concern in relation to the accused's ability to understand the caution or any of the questions asked of him, or in relation to any language or communication difficulties. Constable Miller's evidence was also that the accused did not ask for an opportunity to take legal advice prior to the interview, and did not ask for any other person to be notified of his whereabouts or to be present during the course of the interview. She said that the purpose of the second interview was to direct the accused to the fact that the first version of events he gave was implausible having regard to the objective evidence, and to provide him with an opportunity to address the new evidence that had been received by police.

[28] During the course of cross-examination, counsel for the accused drew Constable Miller's attention to a number of passages in the record of interview in which there were substantial delays between the posing of the question and the accused's answer. Constable Miller's evidence is that her perception of the time was that the accused was using the pauses to carefully consider and formulate his responses.

[29] During the course of that interview the accused reiterated the account given during the course of the first interview that he had slapped the complaint in the face and pushed her to the ground. However, he went on to say that he and the complainant then engaged in consensual sexual intercourse.

[30] The charges of sexual assault were laid on 24 August 2015.

[31] The provisions of the ENULA on which the accused relies in the application for exclusion operate largely in relation to "admissions" (although s 138 of the ENULA has a more expansive operation). The term "admission" is defined in the Dictionary to the ENULA in the following terms:

admission means a previous representation that is:

(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and

(b) adverse to the person's interest in the outcome of the proceeding.

[32] An obvious example in criminal proceedings of a representation which would constitute an admission would be an outright confession made to police. However, under the terms of the definition any acknowledgment of some relevant fact which tends to establish guilt is an admission.[2]

[33] As noted above, the admission made by the accused during the course of the first interview was that he slapped the complainant in the face and pushed her to the ground. That conduct is subject to a number of passages of questioning in the course of the interview, but it was initially made in the following terms:

MILLER: Ok. So Shaun, what I'd like you to do now is to think back to last week and tell me everything that you can about what happened last Wednesday.

LAWRENCE: Hmm. I remember she's swearing at me. I remember she started swearing at me and I slapped her and pushed her into ground. And that's all I know. I just pushed her and she fell. That's all I know. And, and they came that next day and I heard Aunty Joyce, Vicky's sister, say, 'Remember what you did? You went hit your aunty.' I said, 'Yeah, I only slapped her and pushed her.' And I said sorry that next day. I said, 'I'm sorry, Aunty, I shouldn't slap you and push you (inaudible).' That's all I know. That's what I told her. She accept my apology when I said I'm sorry. Said, 'Ah, that's alright. It's ok.' And when she got drunk and she started talkin' everything. She saying all different things then, and I don't know. I remember I just slapped her and push her. That's all I know.

MILLER: Ok, so just going back to the start of your story. On, last Wednesday, you said she was swearing at you.

LAWRENCE: Don't know. Them bad words, saying bad, you know (inaudible), in bad way.

LAWRENCE: With me and my family (inaudible). And that mob that's what I told her. I just slapped and pushed her, and she fell to the ground.

LAWRENCE: I slapped her, and then push her. She's right now.

MILLER: Yep, can you just show me with your hand - - -

LAWRENCE: I don't know, I just did, I remember I slapped her.

LAWRENCE: Just pushed her to the ground. We were standing up.

LAWRENCE: On her body, on her chest here, pushed her.

MILLER: So you're showing me two hands on the front of her chest.

MILLER: So your two hands pushed her on the front of her chest?

LAWRENCE: They only, they too drunk they just fall down, and push somebody when they're drunk they fall down.

LAWRENCE: That's how she fell. On her back like she fell down. She was too drunk too. Swearing, and I push her.

MILLER: So you, you saw her fall backwards. How, how did she land?

MILLER: Yep. And what happened after you saw her sideways?

LAWRENCE: What happened after, I just stand there and, and I told her, 'You right? Sorry.'

[34] The admission made by the accused during the course of the second interview was to reiterate that he had pushed the complainant, but to say in addition that he and the complainant possibly then engaged in consensual sexual intercourse. Again, that admission is subject to a number of passages of questioning during the course of the interview, but it was initially made in the following terms:

MILLER: Yep. This is your chance to tell your story, so I need you to tell me about having sex with Vicky. What do you remember happening?

LAWRENCE: I don't know, maybe we just had it. Maybe we, we just had sex and then she went off to bed and then probably I walked off in town.

LAWRENCE: She think that I raped her, that's what she thinking. She wanna' put me on this thing. I don't know, probably, yeah, she said that. 'Oh, he raped me.' Telling police and everywhere, CIB and everything, telling, telling that me I raped her. I won't do that, I got my thing, girlfriend.

[35] The first admission is clearly adverse to the accused's interests. It was sufficient to ground a charge of assault, although perhaps not of the same nature and severity as alleged by the prosecution. As such, it is properly characterised as an "admission" in the relevant sense.

[36] The second admission is less clearly adverse to the accused's interests. That the accused may have had sexual intercourse with the complainant was not an admission of conduct constituting a crime. During the course of the interview the accused made the express contention that the sexual intercourse was consensual in nature. In some ways that contention was advantageous to the accused in the sense that if the record of interview is played to the jury the exculpatory statement would be put before it without the accused having to give evidence.

[37] That possible characterisation notwithstanding, counsel for the accused contended that the account was adverse to the accused's interests because, in conjunction with the admission concerning the slap and push, the fact that the act of sexual intercourse was preceded by an assault on the complainant might militate against a finding that the sexual intercourse was consensual. That contention should be accepted. For that reason, the admission concerning sexual contact in the second interview is also properly characterised as an "admission" in the relevant sense. The second interview is so permeated by the admission of assault made in the first record of interview that the two may not be disentwined.

[38] It is also irrelevant for these purposes whether the accused's admission in relation to consensual sexual intercourse was or was not true. The meaning of the word "admission" extends to a lie by the defendant which is relied on by the prosecution as an implied admission. That is the case in the present circumstances.

[39] As noted at the outset, the accused's first contention is that evidence of the admissions is not admissible because the circumstances in which they were made were not such as to make it unlikely that the truth of the admission was adversely affected within the meaning of s 85(2) of the ENULA.

[40] Section 85 of the ENULA provides:

85 Criminal proceedings - reliability of admissions by defendants

(1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant:

(a) to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence; or

(b) as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.

Subsection (1) is inserted as a response to the decision of the High Court of Australia in Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216.

(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.

(3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account:

(a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject; and

(b) if the admission was made in response to questioning:

(i) the nature of the questions and the manner in which they were put; and

(ii) the nature of any threat, promise or other inducement made to the person questioned.

[41] There is no doubt that the provision has application to these admissions as they were clearly made in the presence of investigating police who were performing functions in connection with the investigation of the commission, or possible commission, of an offence. So much is apparent from the fact that the admissions were recorded in accordance with the requirements which govern the performance of those functions.

[42] It may also be noted that s 85 of the ENULA is concerned with whether the circumstances adversely affected the "truth of the admission". It is not directly concerned with whether the evidence has been improperly or illegally obtained, or general considerations of fairness. Those matters are the subject of other provisions in the legislation which are considered separately below. Nor is the provision concerned with the voluntariness of the confession, except to the extent that it might bear on the assessment of truth in the relevant sense.

[43] The operation of the provision and the relevant factors and considerations were identified by Barr J in R v GP in the following terms:

The prosecution in the present case must satisfy the court on the balance of probabilities that the admissions relied on were made in circumstances that were not likely to affect their truth adversely [Bin Sulaeman v R [2013] NSWCCA 283 at [81]]. As trial judge, I must determine whether the reliability of the admissions may have been impaired by the way in which they were obtained. In this exercise, I need to consider all the circumstances. Those circumstances include the characteristics of the accused person making the admission, including age, personality, education and any mental, intellectual or physical disability affecting him. The circumstances would also include, where they exist, misconduct by those interrogating, the procedural safeguards adopted, and whether there was any impairment of the ability of the person making the admission to make a rational decision.[3]

[44] The relevant enquiry is whether the circumstances may have affected the truth of the confession. In other words, were these circumstances such that it was unlikely that the accused had made a false confession.[4] It is necessary then to deal with each of the matters said by the accused to constitute circumstances which, alone or in combination, were likely to bear on the reliability of the admissions made in the first and second interviews.

[45] So far as the first interview is concerned, the accused's first complaint is in relation to the caution required by s 140 of the Police Administration Act. The contention is that it was administered while the accused was under the influence of alcohol, it incorrectly described the alleged offending as an assault rather than a sexual assault, and it incorrectly identified the date of the alleged offence as occurring "a couple of weeks ago" rather than one week prior to the arrest and administration of the initial caution. As has already been observed, those inaccuracies were not of a quality which operated to invalidate the warning.

[46] So far as the accused's intoxication is concerned, police took care not to question or interview the accused until he was sober and rested, and he was administered with a formal caution at the commencement of the interview (discussed further below). Given the progression of events, and the effluxion of time between the accused's apprehension and the conduct of the interview, it is difficult to see how this matter could be said to bear on the reliability of the admission subsequently made. This contention should be rejected.

[47] The accused's second complaint is that at the time he was apprehended police induced him to participate in a record of interview by telling him words the effect that they "would sort it all out". This contention must be rejected for a number of reasons.

[48] First, in order to qualify as an inducement it must be established that "the words used by the person, viewed in a common sense way and according to the natural meaning, were capable of amounting to a threat, promise or offer of advantage".[5] These words were not of that character.

[49] Secondly, even if they were capable of the characterisation, the accused was subsequently subjected to a formal caution which would have alerted him to the fact that he was at risk of criminal charge.[6] There is nothing to suggest that in the application of the normal principles of legal causation that the "inducement" actually induced the admissions that were made during the course of the interview.[7]

[50] The accused's third complaint is that his proficiency in the English language was inadequate for the purpose of a police interview, and he was not offered an interpreter. Constable Miller's evidence in relation to this issue has been detailed above. There is nothing to gainsay the conclusions she reached in that respect, and a viewing of the electronic record of interview does not disclose any admission made in response to a question by which the accused was manifestly confused or misled, or any suggestion that an answer containing an admission was given as the result of any form of gratuitous concurrence.

[51] The next contention is that the accused was not provided with a prisoner's friend, and was not provided with an explanation of the role and purpose of a prisoner's friend. Constable Miller's clear evidence was that she asked the accused whether he wished to have another person present, or whether he wished anybody to be informed of his whereabouts. He indicated that he did not.[8] There is nothing to suggest that the accused did not understand the role and purpose of a prisoner's friend. There is nothing to suggest that the absence of a prisoner's friend bore on the reliability of the admissions subsequently made. The contention should be rejected.

[52] The next contention is that the accused was not given the opportunity to take legal advice. Constable Miller's clear evidence was that the accused did not request opportunity to consult with a legal representative or otherwise seek legal assistance. There was no relevant failure on the part of police. Although the accused's failure to seek legal assistance was no doubt operative in his decision to proceed with the interview, there is nothing to suggest that his failure to do so bore on the reliability of the admission subsequently made. The contention should be rejected.

[53] There is then a series of contentions concerning the caution that was administered to the accused, viz:

• (a) the accused was unable to demonstrate his understanding of the caution;

• (b) the caution made no reference to a judge and jury as would properly denote the gravity of the charges he was potentially facing;

• (c) the caution included the misleading warning that the "magistrate" who heard the evidence might release the accused or might fine him or might send him to prison; and

• (d) after the caution was administered the accused was not offered the opportunity to remain silent.

[54] It is convenient to deal with those contentions compendiously. The caution was administered during the first record of interview in the following terms:

MILLER: Ok. Ok, what we're gonna' talk to you about today is a sexual assault on Vicky Robinson, also known as Elizabeth Robinson. But before we can talk to you about that, I need to give you that caution again. Ok? So you don't have to say anything today, but if you do choose to say something, then that can be used as evidence in court. Ok?

MILLER: Yep. So do you have to answer our questions? So if we ask you a question, do you have to answer that, do you have to say anything?

MILLER: And you, what you've got is a, a right to silence. So if you don't want to answer any of our questions, you don't have to. Ok? So if we ask you something you can stay silent - ah - you could say, 'no comment'. So if you do choose to say something, then that's recorded on that machine and those disks then go to the courthouse, and the magistrate will listen to those disks, lawyers, and that's the evidence. Ok? So it's your choice whether you say something on this recording today. Ok, so if we ask you a question, do you have to answer that question? If we ask you a question today and you don't want to answer it, what could you say?

MILLER: Yep, so you could say, 'no comment' or you could just remain silent. Ok? Yep. So when these disks are heard in court, who would listen to those?

MILLER: Yep. And what can he do? 'Cos the, the magistrate will hear the police story and he'll hear your story. And he listens to both those stories and then he decides whether you're guilty or not guilty. Ok? And he can give a fine or he can let you go free, or he could send you to prison, that's the choices he has. Ok?

MILLER: Yep. Alright, do you think that Shaun understands the caution?

[55] The relevant part of the Anunga Guidelines provides:

Great care should be taken in administering the caution when the stage has been reached that it is appropriate to do so. The suspect should be asked to explain what is meant by the caution, phrase by phrase. Questioning should not proceed until it is apparent that the suspect understands the right to remain silent.[9]

[56] The accused was not asked to explain what was meant by the caution phrase by phrase. Rather, the caution was explained in plain English terms. The accused's response to the first part of the caution was equivocal. The response "[a]nything" might conceivably be taken to mean that the accused understood he was at liberty to respond or not; but it certainly does not suggest that he thought he was under a compulsion to answer the questions put to him. Three observations may be made in that respect. First, as was apparent from the evidence, Constable Miller had spent some time in the lead up to the interview and in its first part assessing the accused's level of education and English comprehension. Secondly, it is apparent from viewing the audio-visual record of the interview that the accused made various non-verbal responses which were also capable of conveying that he understood the caution. Thirdly, it would seem clear that the accused understood the second part of the caution in the sense that what he said might be placed before a court.

[57] It is also instructive to consider the accused's responses to the administration of the caution during the course of the second interview. That caution was given in the following terms:

MILLER: Do you, are you suffering any illness at the moment? Do you have any injuries? Are you drunk?

MILLER: No. You been taking any drugs, any medication? Ok, so if you need me to stop, just let me know and we can have a break. Do you agree that I unwrapped three brand new disks and put them in the machine? And you can see that that machine's now running now, it's recording? Ca, can you say yes or no, please? Ok, so today, Shaun, I need to tell you that you're not under arrest, so you're free to leave here at any time. You don't have to say anything or answer any of these questions during the interview, so it's your choice if you answer our questions. Do you understand that?

MILLER: Yep. Ok, so today I'm going to talk to you about an assault on Elizabeth Robinson or Vicky Robinson as she's known. Ah - and that's an assault and a sexual assault. But before we go onto that, I need to tell you the caution. So you do not have to say anything unless you wish to do so, but whatever you say or do will be recorded and used in evidence in court. Do you understand that? Yep? So do you have to answer our questions today? If you don't want to answer them, what could you say? So if we ask you something and, and you don't want to answer that, you could sit there quietly or what could you say if you don't wanna' answer the question?

MILLER: No comment. Yep, thanks. Now this recording, this goes to court and used as evidence, who would listen to this recording?

MILLER: Yep. Are you happy that Shaun understands the caution?

[58] Although that second interview obviously post-dated the first, it would seem that the accused understood his right to silence at that time. That provides at least some basis from which to infer that he also understood the concept at the time of the first interview.

[59] So far as the second limb of the caution is concerned, it was not incumbent on the interviewing police to make specific reference to a judge and jury. It may be accepted that the reference to a "magistrate" and a possible "fine" had the potential to mislead the accused in relation to the gravity of the allegations against him. However, it might be considered unlikely that the reference did in fact mislead the accused in circumstances where he had been expressly advised prior to the administration of the caution that the allegations were in relation to a sexual assault on the complainant. The exchange was as follows:

MILLER: Ok. Ok, what we're gonna' talk to you about today is a sexual assault on Vicky Robinson, also known as Elizabeth Robinson. But before we can talk to you about that, I need to give you that caution again. Ok? So you don't have to say anything today, but if you do choose to say something, then that can be used as evidence in court. Ok?

[60] There is at least some degree of internal inconsistency in the proposition that an accused who is able to understand the distinction between the relative gravity of charges that might be dealt with by a magistrate on the one hand and a judge and jury on the other hand, is at the same time unable to understand the gravity of an allegation of sexual assault.

[61] It is further asserted that after the caution was administered the accused was not offered the opportunity to remain silent. While it is correct to say that the accused was not expressly asked whether he wanted to answer any questions or to participate in the interview, it was not incumbent on the interviewing police to do so in circumstances where they had satisfied themselves of the accused's understanding of his right to silence.

[62] Leaving aside that matter, the submission that the accused was not provided opportunity to remain silent is based largely on the characterisation of delays and periods of silence following questions put by police as attempts by the accused to exercise his right to silence, which attempts were overborne by the persistence of police questioning. Counsel for the accused drew attention to a number of passages in the audio-visual record of interview which were said to demonstrate those attempts.

[63] Constable Miller's evidence in relation to that matter was that she had been trained to give people time to consider their answers during the course of an interview, and in her assessment the accused's eye movements and body language during those periods of silence indicated that he was giving careful consideration to what response, if any, he should give. Whatever the correctness or otherwise of Constable Miller's subjective assessment might be, a viewing of the audio-visual record of interview discloses that the accused was at no stage compelled to answer any questions, and on many occasions did in fact give the appearance of carefully ordering his thoughts before providing an answer.

[64] That is consistent with the general observation that Aboriginal people may during the course of interlocution lapse into long periods of silence from time to time, even in everyday speech. In response to direct questioning Aboriginal interviewees often take opportunity to think carefully before talking about serious matters and before imparting information.

[65] It must be remembered that the focus of s 85 of the ENULA is on the question of reliability. Even accepting the accused's contentions in relation to the administration of the caution at their highest, it does not follow that the admissions were made in circumstances which cast doubt on their reliability. The matters identified concerning the accused's comprehension of the caution are more directly relevant to the question of fairness. That matter is addressed further below in the context of s 90 of the ENULA.

[66] The next contention is that the caution was administered and the interview was conducted in circumstances where the accused had a blood alcohol content of 0.014 per cent, and had registered a blood alcohol content of 0.09 per cent less than two hours previously. The assertion is wrong in fact. The accused registered a blood alcohol content of 0.09 per cent at 12:08 pm. The interview commenced at 3:39 pm.

[67] Leaving that inaccuracy aside, it is correct to say that an interviewee's state of intoxication may be such that any statement made cannot be said to be voluntary, and that disinhibition as a result of intoxication may lead to inaccuracy.[10] The accused's blood alcohol content at the time the interview commenced was not such as to give rise to that concern, nor does a viewing of the audio-visual record suggest otherwise. The contention should be rejected.

[68] The accused's final contention in relation to the first interview is that interviewing police approached the interview on the basis that they wanted to "get it over and done with quickly". The precise purpose of this assertion is unclear. It is not suggestive of either unreliability or impropriety; and nor does a viewing of the electronic record of interview lead to the conclusion that the interviewing police were unduly hasty in its conduct or that they brought inappropriate pressure to bear on the accused on that account. The contention should be rejected.

[69] Turning then to the second record of interview, the first complaint is that police induced the accused to participate in another interview with the prospect that he would be apprised of the nature of further evidence they had gathered, and on the basis that police "needed" the accused "to tell us the real story".

[70] As has already been canvassed, Constable Miller's evidence was that she told the accused about the DNA test results prior to the second interview. The first relevant passage in the record of interview appears immediately following the administration of the caution, and is as follows:

MILLER: Ok, so what we wanna' talk to you today is a problem that happened with Vicky. Now we've already spoken to you about this on the fifteenth of July 2015, where we had an interview like this and you told us your story and what happened that day. But now we've got some further evidence, so we'd like to give this chance for you to tell your story about what's happened.

MILLER: Yeah, so you told us one story on an interview, in an interview like this on the fifteenth of July, but police now have some other evidence that, that's not the right story. So this is your chance to tell us the real story.

[71] Following that exchange, the accused launched immediately into an exculpatory account in which the complainant had been importuning him for sex, and in which they engaged in consensual sexual intercourse. The second relevant passage in the record of interview is as follows:

LAWRENCE: I think maybe I just remember we havin' sex and I don't know what happened there. Story just made up or something.

LAWRENCE: She probably made up the story and I saw this, that next day.

MILLER: Yep. This is your chance to tell your story, so I need you to tell me about having sex with Vicky. What do you remember happening?

LAWRENCE: I don't know, maybe we just had it. Maybe we, we just had sex and then she went off to bed and then probably I walked off in town.

[72] For the reasons given in the context of the first record of interview, the representations made by Constable Miller are not properly characterised as inducements in the relevant sense. Moreover, the manner in which she addressed those questions to the accused did not result in any unfair advantage being taken of his position. Her approach and persistence in the matter did not render it unfair to use the answers in evidence, and did not constitute a circumstance which impaired at the reliability of the admission. Whether the admission made by the accused was in fact true is quite a different matter, and irrelevant for this purpose.

[73] I have already dealt in the context of the first interview with the contentions concerning the accused's proficiency in the English language, and the absence of an interpreter and a prisoner's friend. The same contentions are made in relation to the second interview, and should be rejected for the same reasons.

[74] The final contention in relation to the second interview is that police circumvented the accused's legal practitioners and approached the accused directly to request that he participate in a further record of interview without giving him opportunity to take legal advice in relation to the matter. As already noted, Constable Miller gave evidence that she was aware that the accused had already appeared in court and that he had been legally represented at that time.

[75] While it may be accepted that the accused would likely not have participated in a further record of interview had he taken legal advice, the failure to do so did not bear on the reliability of the admission subsequently made. This is not to say that the circumstances in which that interview was conducted do not give rise to considerations of fairness. That matter is addressed further below in the context of s 90 of the ENULA.

[76] I am satisfied on the balance of probabilities that the accused's admissions in both interviews were made in circumstances that were not likely to adversely affect the truth of the admissions he made (again leaving aside the question whether they were in fact true). To the extent there may have been any failure to comply with the Anunga Guidelines, that failure was not a circumstance, or did not constitute circumstances, which would adversely affect the truth of the admissions made.

[77] It follows that evidence of the accused's admissions are not rendered inadmissible by s 85(2) of the ENULA.

The operation of s 139 of the ENULA

[78] As noted at the outset, it is the accused's further contention that the evidence of the admissions should not be admitted because it was obtained improperly within the meaning of s 139(1) of the ENULA. The impropriety is said to flow from the fact that police constructively failed to caution the accused by failing to give that caution in, or translated into, a language in which the accused was able to communicate with "reasonable fluency".

[79] Section 138(1)(a) of the ENULA provides:

(a) improperly or in contravention of an Australian law; or

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

[80] That provision is given a specific and relevant operation by s 139 of the ENULA, which provides relevantly:

1. Cautioning of persons

(1) For the purposes of section 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if:

(a) the person was under arrest for an offence at the time; and

(b) the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person; and

(c) before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.

(3) The caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency, but need not be given in writing unless the person cannot hear adequately.

(5) A reference in subsection (1) to a person who is under arrest includes a reference to a person who is in the company of an investigating official for the purpose of being questioned, if:

(a) the official believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning; or

[81] The first interview took place in the circumstances contemplated by s 139(1). The second interview took place in the circumstances contemplated by s 139(5).

[82] The accused contends in essence that English is not a language in which he was able to communicate with reasonable fluency, and that evidence of the admissions made by him is therefore deemed to have been obtained improperly.

[83] The requirement of reasonable fluency in s 139(3) requires more than fluency in an accused's general language ability. In R v Deng, James J made the following observation in relation to the analogue provision in the Evidence Act 1995 (NSW):

In my view the section is purposive. It does not operate on an accused's general language ability. It operates on the ability to understand the concept underlying the caution and the function of a caution. The caution is meant to convey to an arrested person that he/she has the right to choose to speak or to remain silent. It is meant to ensure that the person is aware that if he/she speaks, what he/she says may be given in evidence.[11]

[84] In the same case, Ipp AJA observed as follows:

In my opinion the phrase "reasonable fluency" in s 139(3) of the Evidence Act 1995 means fluency sufficient to enable the person concerned to understand the caution.[12]

[85] The burden is on the party seeking exclusion of the evidence to establish that it was improperly obtained.[13] It is only where the party seeking exclusion of the evidence has established that it was obtained improperly that the provision requires the court to balance or weigh those considerations supporting exclusion of the evidence against those supporting its admission in the particular circumstances of the case.

[86] In order to make good his contention, the accused must establish that he did not have a fluency in the English language sufficient to understand the concept underlying the caution and the function of a caution.

[87] I am satisfied that the accused was "able to communicate with reasonable fluency" in English, at least in terms of his general language ability. The relevant evidence has already been addressed. First, when questioned during the course of the interview he indicated that he had attended Katherine High School to year 10 level; that he generally spoke English with his associates; and that he could read and write a "little bit" of English. Secondly, it is clear from a viewing of the electronic records of interview that although the accused's English is Aboriginal English, he was able to communicate in that language with reasonable fluency. Thirdly, I accept Constable Miller's assessment that the accused's English language comprehension was of a sufficient level that he did not require an interpreter.

[88] It is less certain whether the accused had a fluency in the English language sufficient to understand the concept underlying the caution and the function of a caution. There are certain indications that he did. As already noted, at the commencement of the first interview the caution was explained in plain English terms but he was not asked to explain in any detail what was meant by the caution. His response to the first part of the caution was equivocal, but there was nothing to indicate he thought he was under a compulsion to answer the questions put to him. The accused certainly understood the second part of the caution in the sense that what he said might be placed before a court. The accused's response to the administration of the caution at the commencement of the second interview more clearly demonstrated an understanding of the right to silence.

[89] Ranged against that, there is nothing that would establish to the requisite standard that the accused's fluency in the English language was inadequate for the purpose. The accused did not give evidence in the voir dire as to whether he had a proper understanding of the caution. No other witness gave evidence to describe any relevant limitation in the accused's English language fluency or comprehension, either generally or in relation to his understanding of the caution. Bearing in mind the fact that the accused bears the relevant burden, I am unable to find that the accused's fluency in English was insufficient to enable him to understand the caution and its underlying concept and function.

[90] For these reasons, the accused has not established that evidence of admissions made by him during the interviews was "obtained improperly" within the meaning of s 139(1) of the ENULA and should therefore be excluded on that basis.

The operation of s 138 of the ENULA

[91] As noted at the outset, it is the accused's further contention, in the alternative to the specific breach of s 139(1) of the ENULA concerning the caution, that evidence of the admissions should not be admitted because it was obtained improperly within the meaning of s 138(1) of the ENULA having regard to that combination of circumstances already considered in the context of s 85 of the ENULA.

[92] Section 138 of the ENULA provides relevantly:

1. Exclusion of improperly or illegally obtained evidence

(a) improperly or in contravention of an Australian law; or

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:

(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or

(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

[93] As already noted, the burden is on the party seeking exclusion of the evidence to establish that it was improperly obtained.[14] The ENULA contains no general or specific definition of "impropriety". The method or conduct will only be "improper" in the relevant sense if it is "not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong".[15]

[94] The meaning of the term "improperly" was described in Robinson v Woolworths Ltd in the following terms:

It follows that the identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as "the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement". Second, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be "quite inconsistent with" or "clearly inconsistent with" those standards ... [16]

[95] As suggested in that extract, the test is not materially different to the common law position that in order to warrant the exclusion of evidence on this basis the conduct in question must be "inconsistent with the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement".[17] Moreover, that conduct must be "clearly inconsistent" with those standards.

[96] Although it may be accepted for these purposes that the method or conduct in question need not have been intentionally improper, it must still be capable of characterisation as clearly and significantly inconsistent with minimum standards.

[97] The relevant impropriety in this case is said to arise from the circumstances already described and considered above in the context of s 85 of the ENULA. For the reasons already expressed, none of those matters, either alone or in combination, could be said to have adversely affected the reliability of the admissions. For those same general reasons, none of those matters constituted conduct which was inconsistent with the minimum standards expected of law enforcement officers, with the possible exception of compliance with the Anunga Guidelines and General Order Q2.

[98] Courts in the Northern Territory over many years have excluded evidence of admissions on the basis of non-compliance with the Anunga Guidelines, if such non-compliance resulted in confessions being involuntary,[18] or a breach of the common law discretions relating to fairness.[19] The question of exclusion is now governed by the ENULA. As Barr J observed in R v GP:

The effect of s 56(1) Evidence (National Uniform Legislation) Act 2011 (NT) is to displace Northern Territory law relating to the admissibility of evidence, unless the law is preserved elsewhere within the Act. The subsection provides that, if evidence is relevant, then it is admissible. Admissible evidence may, however, be excluded (1) by one of the exclusionary rules, (2) by exercise of judicial discretion, or (3) under one of the procedural provisions in the Act. Thus, although the Anunga guidelines for the conduct of police in the interrogation of indigenous persons will still apply via Police General Order Q2, R v Anunga is no longer (if it ever was) binding legal precedent in relation to the admissibility of evidence in court.[20]

[99] In the context of s 138 of the ENULA, the ultimate focus of the inquiry concerning impropriety is not whether there was a breach of the Anunga Guidelines or General Order Q2, but whether the conduct in question was inconsistent with the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement.

[100] General Order Q2 contains a number of qualifications.

[101] First it notes that although the guidelines are not strict rules of law "members should endeavour to comply with the guidelines so far as is possible".

[102] Secondly, although the guidelines apply to any person who is not as fluent in English as the average white person of English descent, not all Aborigines, or all persons of Aboriginal descent, fall into this category.

[103] Thirdly, in determining whether and to what extent the guidelines have application investigators may, and indeed must, have regard to the observations of and dealings with the suspect, and to answers given to questions concerning the suspect's level of education and ability to read and write in English. It is apparent from the matters recorded above that Constables Miller and Whiteside made enquiries of the accused in this case with a view to determining whether the guidelines applied to him, and made a reasoned decision based on those enquiries.

[104] It may be accepted that the interviewing police determined the guidelines did not apply to the accused, or at least that they did not apply them. So much is apparent from the fact that paragraph 3.1.1 of General Order Q2 requires the presence of an interpreter. As already described, Constable Miller formed the view that the accused did not require an interpreter. That suggests a determination that the guidelines did not apply, or at least that they did not require strict application in the circumstances. So much is also apparent from the fact that the accused was not asked to explain what was meant by the caution phrase by phrase as required by paragraph 3.1.3 of General Order Q2.

[105] There was in other respects compliance with the guidelines. Care was taken to ensure that the accused was offered water and the use of a toilet, and was not interviewed when intoxicated.

[106] As has already been noted, there was nothing to suggest to the requisite standard that the accused was not able to understand the caution and its underlying concept and function.

[107] The guidelines are expressed to have application "to any person being questioned as a suspect, if that person is not as fluent in English as the average white person of English descent". Their application is not limited to people of Aboriginal descent. A viewing of the audio-visual records of interview discloses that the accused speaks English in the argot used by many Aboriginal people in the top end of the Northern Territory. It discloses speech patterns with certain grammatical and syntactical quirks. It suggests that his vocabulary is probably not as extensive as that of the average white-collar worker.

[108] Even having regard to those matters, one might be hesitant to conclude that his level of fluency in English was below that of "the average white person of English descent". The concept of "fluency" in this context comprehends ease and accuracy of expression rather than grammatical exactitude and precision. The concept of an "average" in this context must comprehend a relatively broad range rather than a point. Were that not so, the guidelines would have application to half (or quite probably a greater proportion) of persons of English descent being questioned as suspects.

[109] Having regard to those considerations, it cannot be said that the failure by the interviewing officers to apply the Anunga Guidelines in the manner described was clearly inconsistent with the minimum standards required of law enforcement officers in that situation. In fact, it cannot be said with any certainty that a failure to apply the guidelines in the manner described was inconsistent with the guidelines at all.

[110] Although the accused did not expressly cast his case that way, there remains the question whether the evidence was obtained illegally in the sense that it was obtained in contravention of an Australian law or in consequence of a contravention of an Australian law.

[111] The ENULA defines an "Australian Law" to include a law of the Northern Territory. Clause 9 of Part 2 of the Dictionary to the ENULA provides that a reference to a law of the Northern Territory is a reference to a written or unwritten law of or in force in that place.

[112] The guidelines are not "an Australian law", or a rule of law. As the Federal Court in Gudabi v R observed:

In dealing with arguments based upon an alleged breach of the Anunga rules two matters must be borne in mind. The guidelines, which have as their object the assistance of investigating officers in conducting their inquiries in such a manner as to be fair to the person interviewed while at the same time serving the public interest by not unduly inhibiting the investigating process, are not rules of law. It would be wrong to treat what is said in Anunga as laying down principles or rules the breach of which in any respect will result in confessional material being rejected as inadmissible. Equally, it cannot properly be said that evidence of a confessional statement will always be admissible if it can be shown that the investigating officers did not in any way contravene those guidelines. The legal question will always be whether the confessional statement was voluntary in the sense in which that expression is used in the relevant authorities.[21]

[113] The fact that the guidelines have been incorporated into Northern Territory Police General Order Q2 does not lead to any different conclusion. Although s 14A of the Police Administration Act provides that the Commissioner may issue general orders to secure the good government and efficient working of the Police Force, the promulgation of such orders does not clothe them with the status of a law of the Northern Territory in the relevant sense.

[114] For these reasons, the accused has not established that evidence of admissions made by him during the interviews was "obtained improperly" or in contravention of an Australian law within the meaning of s 138 of the ENULA, and should therefore be excluded on that basis.

[115] That finding is subject to one qualification. Reference has already been made to the fact that the second interview was conducted in circumstances where the accused had been legally represented on the two occasions he had been before the court up to that point in time. That matter is addressed below in the context of s 90 of the ENULA. Given the findings made there, it is unnecessary to determine whether the evidence was "obtained improperly". This case is also not an appropriate vehicle in which to determine whether the police officers acted "improperly" in the relevant sense given the lack of evidence concerning the nature of the retainer, the police officers' precise understanding of the retainer, and what transpired on the two occasions on which the accused appeared before the court.

The operation of s 90 of the ENULA

[116] As noted at the outset, it is the accused's further contention that the circumstances discussed above in the context of s 85 were such that the Court should refuse to admit evidence of the admissions in the exercise of the discretion under s 90 of the ENULA.

[117] Section 90 of the ENULA provides:

1. Discretion to exclude admissions

In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:

(a) the evidence is adduced by the prosecution; and

(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

Note for section 90

Part 3.11 contains other exclusionary discretions that are applicable to admissions.

[118] Section 90, so far as it is relevant for these purposes, provides in essence that evidence of an admission may be excluded if it would be unfair to admit the evidence against the accused having regard to the circumstances in which it was made.

[119] The common law discretions to exclude evidence are directed most commonly to the standards of behaviour required of law enforcement authorities and/or whether circumstances may have brought about an unreliable admission. Those applications of the discretion are given statutory expression in ss 85 and 138 of the ENULA. The incorporation of discretionary powers of exclusion directed specifically to police conduct and the question of reliability suggests that s 90 has a broader operation. That is consistent with the fact that at common law there is also discretion to exclude evidence on grounds of "fairness"; and the considerations informing the exercise of that discretion are not restricted to the conduct of investigating authorities and the reliability of the admission in question.

[120] That the assessment of fairness at common law is not to be resolved by exclusive reference to considerations of voluntariness and reliability is apparent from the fact that an admission that is both reliable and entirely voluntary may be excluded if its reception would impair an accused's procedural rights or give rise to some unfair forensic disadvantage. In R v Swaffield[22] the plurality identified a number of circumstances which might give rise to unfairness in the nature of forensic disadvantage, including the admission of a statement made by an accused to another person if that person was not called as a witness;[23] where the manner in which the accused was questioned led to apparent inconsistencies which might be used to impair his credit as a witness;[24] and where the circumstances were such that the accused was unable to have his version of events corroborated.[25]

[121] Similarly, in Foster v R (1993) 67 ALJR 550 the majority reasons observe that the reliability of the admission is not the sole criterion of fairness, and that the issue of fairness must be resolved by reference to "the conduct of the police and all the circumstances of the case". Two points should be made in that respect. When considering the exercise of the "fairness" discretion, the relevant focus in this inquiry is not whether the police have acted unfairly or unlawfully. It is whether it would be unfair to the accused to admit the statement. Secondly, that assessment will depend upon the particular circumstances of the case and in which the admission was made, and is guided ultimately by the question whether the admission of the evidence would be unacceptable having regard to contemporary community standards of fairness.[26]

[122] These observations reflect the fact that voluntariness, reliability, unfairness to the accused and public policy considerations concerning the minimum standards expected of law enforcement authorities are not discrete issues.[27] They tend to overlap both in the factual circumstances that may be considered in determining whether to exercise a particular discretion to exclude evidence, and in the rationales underlying each ground of exclusion.

[123] Although Swaffield was concerned immediately with the position at common law, the majority observed (at [70]) that the relevant sections of the uniform evidence legislation, taken in combination, reflected the approach already inhering in the common law to the admission or rejection of confessional material. The majority considered that the correct approach was:

... to think of admissibility as turning first on the question of voluntariness, next on exclusion based on considerations of reliability and finally on an overall discretion which might take account of all the circumstances of the case to determine whether the admission of the evidence or the obtaining of a conviction on the basis of the evidence is bought at a price which is unacceptable, having regard to contemporary community standards.[28]

[124] That observation was subject to two qualifications. First, the uniform evidence legislation does not reproduce expressly the common law concept of voluntariness. That concept is subsumed by the provisions dealing with reliability, unlawfully or improperly obtained evidence and unfairness, in the sense that an involuntary confession would ordinarily be caught by one or other of those provisions. The second qualification is that, as already described, the unfairness discretion is also capable of operating in relation to procedural rights and forensic disadvantages.

[125] In Swaffield, the plurality went on to state:

[T]he notion of compulsion is not an integral part of the fairness discretion and it plays no part in the policy discretion. In the light of recent decisions of this Court, it is no great step to recognise, as the Canadian Supreme Court has done, an approach which looks to the accused's freedom to choose to speak to the police and the extent to which that freedom has been impugned. Where the freedom has been impugned the court has a discretion to reject the evidence. In deciding whether to exercise that discretion, which is a discretion to exclude not to admit, the court will look at all the circumstances. Those circumstances may point to unfairness to the accused if the confession is admitted. There may be no unfairness involved but the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards. This invests a broad discretion in the court but it does not prevent the development of rules to meet particular situations.[29]

[126] A number of points may be drawn from that passage, but bearing in mind that their Honours were there considering the position obtaining at common law. It is necessary to make certain adjustments to accommodate the prescriptions contained in the ENULA. First, it is unnecessary to identify a lack of voluntariness in order to found unfairness. Secondly, although compulsion is not an essential integer of unfairness, it would usually lead to a finding that an admission should be excluded on the grounds of fairness (were it not already caught by one of the other exclusionary provisions). Thirdly, there may be unfairness arising without any breach of the standards of behaviour required of law enforcement authorities. Finally, and conversely, a breach of the standards of behaviour required of law enforcement authorities may require the exclusion of an admission (under s 138) even where there is no unfairness.

[127] In Em v R[30] the High Court was called on to consider the admissibility of an admission secretly taped by police. In the course of that consideration Gummow and Hayne JJ deal with the interaction between the various exclusionary provisions in the ENULA in the following terms:

When it is 'unfair' to use evidence of an out-of-court admission at the trial of an accused person cannot be described exhaustively. 'Unfairness', whether for the purposes of the common law discretion or for the purposes of s 90 [of the Uniform Evidence Acts], may arise in different ways. But many cases in which the use of evidence of an out-of-court admission would be judged, in the exercise of the common law discretion, to be unfair to an accused are dealt with expressly by particular provisions of the Act[s] other than s 90. Thus although the discretion given by s 90 is generally similar to the common law discretion considered in [R v Lee [1950] HCA 25; (1950) 82 CLR 133], it is a discretion that will fall to be considered only after applying the other, more specific, provisions of the Act[s] referred to at the start of these reasons. The questions with which those other sections deal (most notably questions of the reliability of what was said to police or other persons in authority, and what consequences follow from illegal or improper conduct by investigating authorities) are not to be dealt with under s 90. The consequence is that the discretion given by s 90 will be engaged only as a final or 'safety net' provision.[31]

[128] Their Honours are not there to be taken as saying that circumstances which are relevant to determining whether an admission is reliable or whether there has been illegal or improper conduct by investigating authorities may not also be relevant to the assessment of fairness (either alone or in combination with other matters). Rather, the passage suggests that if circumstances are such as to lead to the conclusion that it was not unlikely that the truth of that the admission was adversely affected, or that the admission was obtained improperly or unlawfully, the matter should be dealt with in accordance with the provisions directed to those specific grounds for exclusion. However, if circumstances are not such as to lead to those specific conclusions, it nevertheless remains open to consider whether those circumstances call for exclusion on the grounds of fairness.

[129] That leaves the question of what may properly be said to constitute "unfairness" in the relevant sense. As the authors observe in The Laws of Australia:

Despite the fact that the fairness discretion has been in existence for over half a century, the discrete factors that are relevant to its application and the weight that should be accorded to them remain vague. "Fairness" by its very nature is an indistinct concept and courts have been slow to elaborate on its meaning.[32]

[130] Similarly, in Em, Gleeson CJ and Hayden observed:

The language in s 90 is so general that it would not be possible in any particular case to mark out the full extent of its meaning.[33]

[131] This Court gave some consideration to the exercise of the unfairness discretion at common law in R v Grant.[34] In that matter police had interviewed the accused in relation to an offence for which he was being held on remand at the Alice Springs Correctional Centre. He had already been interviewed by police on two previous occasions. He was legally represented by the time of the subsequent interview, but his legal representatives were not informed of the intention to interview him at that time. His participation in the subsequent interview was entirely voluntary.

[132] The Court found expressly that the accused had not been intimidated or pressured by police to speak or answer any of the questions put to him. The Court also found that police genuinely believed that the procedure adopted was the proper and established standard operating procedure for interviewing a prisoner held on remand, and that the accused was lawfully removed for that purpose. The accused made various admissions during the course of that subsequent interview.

[133] Against that background, Olsson AJ made the following comments:

[110] I accept that the accused is charged with the most serious crime in the criminal calendar and that there is a need to carefully balance the various factors adverted to by the High Court in The Queen v Swaffield [1998] HCA 1; (1997) 192 CLR 159. The relevant evidence is plainly of very substantial probative value and potentially highly prejudicial to the accused. The evidence in question is plainly of a high order of reliability on the face of it. As against those considerations, the question arises as to whether the relevant evidence was obtained at an unacceptable price, having regard to contemporary community standards.

[111] It seems to me that such question must be answered in the affirmative in the circumstances of the present case. The accused was a prisoner on remand at the relevant time and not entitled to the full protection accorded to him by s 140 of the Police Administration Act, which had no application to his situation. The police were well aware that he had a solicitor acting for him and that his solicitor had no inkling of what was proposed. It seems to me that, particularly having regard to the apparent low level of intellect of the accused and its possible bearing on his ability to appreciate the significance of what he was proposing to do, what occurred was really unconscionable. So far as I can determine, the main motivating factor that seems to have triggered the accused's initiative was his understanding that a failure on the part of the police to find what was considered to be the relevant knife was holding up the proceedings.

[112] Even putting to one side the intellect of this particular accused and its potential significance, I am of the view that the court should not countenance conduct of the type in question. There was an obvious responsibility on the police to alert [the accused's legal representative] as to what was in contemplation and not merely proceed behind his back. The potential for abuse in such circumstances is obvious. In this case the evidence was obtained at an unacceptable price, even given that the police did not initiate what developed. The court ought not to give its approval to such conduct.[35]

[134] The accused bears the onus of establishing unfairness.[36] I have come to the conclusion that the accused has discharged that onus in this case, and that the receipt of evidence of the accused's admissions made during the course of the two interviews would be unfair in the relevant sense. That finding is based on a number of matters apparent in the circumstances surrounding the conduct of the interviews.

[135] As is apparent from the immediately preceding case extract, the most significant consideration in this context is the fact that the second interview was conducted in circumstances where the accused was already legally represented, that matter was known to police in a general sense, and no attempt was made to advise the accused's legal representatives of the intention to interview him again or to afford the accused opportunity to take legal advice in relation to the matter. It can be said with some confidence that had the accused taken legal advice in relation to the matter he would not have submitted to the second interview. In making those observations, I do not suggest that the police officers concerned considered they were in any way acting improperly or unfairly, or that they were intending to take some unfair advantage of the accused.

[136] For that reason alone, the second record of interview is properly excluded from the evidence to be led at the trial. Having drawn that conclusion, the question arises as to whether the first record of interview should also be excluded given the conduct of that interview was not tainted by the same circumstances as the conduct of the second interview. In my opinion, it would be unfair to admit evidence of the first record of interview given the forensic disadvantage to which that reception would expose the accused.

[137] Considered alone, the first record of interview contains the admission that the accused had slapped and pushed the complainant to the ground. It does not include the accused's subsequent exculpatory statements in relation to an act of consensual intercourse. Those exculpatory statements were made in response to further information provided to him by police, which information was not available at the time of the first record of interview. If the first record of interview was admitted into evidence, the accused would be deprived of the opportunity to have his full account placed before the jury. In those circumstances, it would be unfair to the accused to use the evidence of the first interview in isolation.

[138] There are two additional matters which, taken in combination with the failure to advise the accused's legal representative of the intention to interview him a second time, reinforce the conclusion that it would be unfair to the accused to admit the evidence of the admissions made during the course of the records of interview.

[139] First, there must be some concern as to whether the accused's understanding of his right to silence has been conclusively demonstrated on the evidence. For the reasons already discussed, the relevant exchanges in the electronic records of interview are inconclusive in that respect. While Constables Miller and Whiteside were no doubt satisfied of the accused's comprehension, the matter is not entirely clear from the manner in which the caution was administered and the nature of the accused's response to that administration in both interviews. That uncertainty could have been avoided had the caution been administered differently, and had the accused's level of understanding been explored more carefully.

[140] Secondly, I have already addressed the reference made in the caution to a "magistrate" and to the potential disposition of a "fine". For the reasons given, I do not consider that content affected the reliability of the admissions or constituted improper conduct on the part of police. However, I do consider that those references had the potential to lull the accused into a false sense of security in relation to the gravity of the charges he was facing and the police attitude to the matter. That atmosphere was contributed to by - in the first record of interview - police's prior indication they wished to "sort the matter out", and - in the second record of interview - police's prior indication that they wanted the accused to "tell them his side of the story".

[141] Neither of these additional matters would in isolation ground a finding that it would be unfair to the accused to admit the records of interview into evidence. When considered in conjunction with the accused's failure to take legal advice in relation to the second record of interview, however, they add to the picture of a relatively unsophisticated man who was not entirely sure of the allegations he was required to meet and who had a misplaced sense of the manner in which those allegations would be addressed. He was, as Olsson AJ described the accused in Grant, "sorely in need of proper legal advice and assistance in a situation such as that which developed, so that he could adequately appreciate and make informed decisions as to what he ought to say and do".[37]

[142] The rulings on the voir dire hearing are:-

(a) The evidence of the first electronic record of interview conducted on 15 July 2015 is inadmissible in the trial.

(b) The evidence of the second electronic record of interview conducted on 21 August 2015 is inadmissible in the trial.

[1] That recollection would seem to be supported by the fact that early in the course of the second interview, and without any reference having been made to the DNA test results, the accused makes a number of exculpatory statements concerning consensual sexual intercourse with the complainant.

[2] R v Horton (1998) 45 NSWLR 426; R v Esposito (1998) 45 NSWLR 442.

[3] [2015] NTSC 53 at [30].

[4] R v Esposito (1998) 45 NSWLR 442 at 459-460; R v Rooke (unreported, NSW Court of Criminal Appeal, Newman, Levine and Barr JJ, No 60550/96, 2 September 1997).

[5] R v Dixon (1992) 28 NSWLR 215.

[6] R v Bosman (1988) 50 SASR 365; Murphy v R [1989] HCA 28; (1989) 167 CLR 94; R v Dixon (1992) 28 NSWLR 215 at 226; Collins v R [1980] FCA 72; (1980) 31 ALR 257 at 310.

[7] R v Lee [1950] HCA 25; (1950) 82 CLR 133 at 146; Sparks v R [1964] AC 964 at 988; R v Noakes (1986) 42 SASR 489; R v Bosman (1988) 50 SASR 365 at 368; R v Dixon (1992) 28 NSWLR 215 at 225-226.

[8] It is perhaps understandable that the accused did not want the presence of a prisoner's friend in circumstances where the allegations were that he had assaulted his aunt and engaged with her in sexual intercourse without her consent.

[10] R v Smith (1992) 58 SASR 491 at 500; R v Ostojic (1978) 18 SASR 188; R v Lee [1950] HCA 25; (1950) 82 CLR 133.

[11] [2001] NSWCCA 153 at [17].

[12] R v Deng [2001] NSWCCA 153 at [34].

[13] See Parker v Comptroller-General of Customs (2009) 83 ALJR 494 at [28] per French CJ.

[14] See Parker v Comptroller-General of Customs (2009) 83 ALJR 494 at [28] per French CJ.

[15] See Parker v Comptroller-General of Customs (2009) 83 ALJR 494 at [29] per French CJ.

[16] [2005] NSWCCA 426; (2005) 158 A Crim R 546 at [23] per Basten JA.

[17] Ridgeway v R [1995] HCA 66; (1995) 184 CLR 19 at 36 per Mason CJ, Deane and Dawson JJ.

[18] See, for example, R v Echo [1997] NTSC 5; (1997) 136 FLR 451 at 452.8, 457.5.

[19] See, for example, R v Nagawalli [2009] NTSC 25 at [53], [72]. See also Les McCrimmon: The Uniform Evidence Act and the Anunga Guidelines: Accommodation or Annihilation? (2011) 2 NTLJ 91at 102.

[20] [2015] NTSC 53 at [25].

[21] [1984] FCA 16; (1984) 12 A Crim R 70 at 81. See also R v RR [2009] NTSC 44 at [48].

[22] [1998] HCA 1; (1998) 192 CLR 159 at [77] per Toohey, Gaudron and Gummow JJ.

[23] McDermott v R (1948) 76 CLR 501.

[24] R v Amad [1962] VicRp 75; [1962] VR 545.

[25] Foster v R (1993) 67 ALJR 550.

[26] See also R v Naa [2009] NSWSC 851; (2009) 76 NSWLR 271. "Contemporary community standards" refers to "community standards concerning the maintenance of the rule of law in a liberal democracy, the elements of the proper administration of justice and the due requirements of law enforcement": R v Suckling [1999] NSWCCA 36 at [40]- [41].

[27] R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 at [74].

[28] R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 at [69].

[29] R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 at [91].

[30] [2007] HCA 46; (2007) 232 CLR 67.

[31] Em v R [2007] HCA 46; (2007) 232 CLR 67 at [109].

[32] Thomson Reuters, The Laws of Australia (at 18 December 2016), 16 Evidence, "16.3 Proof in Criminal Cases" [16.3.860].

[33] Em v R [2007] HCA 46; (2007) 232 CLR 67 at [56]. See also Gummow and Hayne JJ at [109] that "[w]hen it is 'unfair' to use evidence of an out-of-court admission at the trial of an accused person cannot be described exhaustively".

[34] [2007] NTSC 50.

[35] R v Grant [2007] NTSC 50 at [110]- [112].

[36] Proof of any facts required to demonstrate circumstances giving rise to unfairness must be established on the balance of probabilities: ENULA, s 142(1).

[37] R v Grant [2007] NTSC 50 at [109].