(3) Alternatively, the court ought to reject the statements in the exercise of its discretion. 12. No specific objection was taken to (1),(5) and (6) above. POLICE ADMINISTRATION ACT 13. Before considering the question of voluntariness, it is necessary to refer to certain provisions of the Police Administration Act which provide a context for the way in which the investigation was conducted, or ought to have been conducted. 14. Section 123 provides that a police officer "may, without warrant, arrest and take into custody any person where he believes on reasonable grounds that the person has committed ... an offence." 15. Section 137(1) provides that: "... subject to subs(2) and (3) of this section, a person taken into lawful custody under this ... Act shall ... be brought before a justice or a court of competent jurisdiction as soon as is practicable after being taken into custody, unless he or she is sooner granted bail under the Bail Act or is released from custody." 16. Section 137(2) provides that: "... a member of the Police Force may, for a reasonable period, continue to hold a person he has taken into lawful custody in custody to enable - (a) the person to be questioned; or (b) investigations to be carried out, to obtain evidence of or in relation to an offence that the member believes on reasonable grounds involves the person, whether or not - (c) it is the offence in respect of which the person was taken into custody; or (d) the offence was committed in the Territory, and the person shall not be granted bail under Part III or section 33 of the Bail Act while so detained, whether or not he or she has been charged with an offence." 17. Section 137(3) limits the powers of detention conferred by s137(2) to certain kinds of offences including the offences with which the accused was charged in this case. Section 138 sets out a number of criteria for determining what is "a reasonable period" for the purposes of s137(2). There are no provisions placing any finite time limit beyond which a person may not be held under s137(2), other than the time must not exceed "a reasonable period"; nor need the police bring a person so detained before a justice or court during that time; nor is there any supervision by the courts, other than ex post facto, of what is a reasonable period whilst the person is being detained. 18. In June 1992, a number of important amendments were made to the Act designed, no doubt, to bring some balance and fairness to the police powers conferred by s137. Those amendments came into force on 15 July 1992, i.e. about three months before this investigation took place. The most important amendments were those introduced by a new Division 6A (ss139-143) dealing with the recording of confessions and admissions. It is necessary to set out those provisions in full: "Division 6A - Recording of Confessions and Admissions 139. DEFINITION In this Division - 'electronic recording' includes a recording of sound and/or pictures, by electronic means; 'relevant offence', in relation to a confession or admission, means - (a) in the case of an admission or confession made on or after 1 July 1992 and before 1 July 1993, an offence the maximum penalty for which is imprisonment for life or in excess of 7 years; (b) in the case of an admission or confession made on or after 1 July 1993 and before 1 July 1994, an offence the maximum penalty for which is imprisonment for life or for 7 years or more; (c) in the case of an admission or confession made on or after 1 July 1994, an offence the maximum penalty for which is imprisonment in excess of 2 years. 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. 141. WARNING AND OFFER OF FACILITIES TO COMMUNICATE TO BE TAPE-RECORDED The investigating member who is required by section 140 to give the person in custody the information required by that section to be given shall, if practicable, electronically record the giving of the information and the person's

responses, if any. 142. ELECTRONIC RECORDING OF CONFESSIONS AND ADMISSIONS (1) Subject to section 143, evidence of a confession or admission made to a member of the Police Force by a person suspected of having committed a relevant offence is not admissible as part of the prosecution case in proceedings for a relevant offence unless - (a) where the confession or admission was made before the commencement of questioning, the substance of the confession or admission was confirmed by the person and the

confirmation was electronically recorded; or (b) where the confession or admission was made during questioning, the questioning and anything said by the person was electronically recorded, and the electronic recording is available to be tendered in

evidence. (2) If the questioning of a person is electronically recorded as required by this section, or the giving of information is recorded as required under section 141, the investigating member shall - (a) inform the person that the person is entitled to a copy of the electronic recording on request; (b) if the recording is an audio recording only or a video recording only, cause the recording or a copy of it to be made available to the person or the person's legal representative, without charge, within 7 days after request; (c) if both an audio recording and a video recording were made, cause the audio recording or copy of it to be made available to the person or the person's legal representative, without charge, within 7 days after request and cause the person or the person's legal representative to be notified that an opportunity will be provided, on request, for viewing the video recording; and (d) if the transcript of the electronic recording is prepared by the police, cause a copy of the transcript to be made available on request to the person or the person's legal representative, without charge, within 7 days after the request. (3) Except as provided in this section, nothing in this section prevents the use of an electronic recording in proceedings for an offence against a law in force in the Territory. 143. CERTAIN EVIDENCE MAY BE ADMITTED

A court may admit evidence to which this Division applies even if the requirements of this Division have not been complied with, or there is insufficient evidence of compliance with those requirements, if, having regard to the nature of and the reasons for the non-compliance or insufficiency of evidence and any other relevant matters, the court is satisfied that, in the circumstances of the case, admission of the evidence would not be contrary to the interests of justice." 19. The first submission made by Mr Lawrence was that, at the time of the interview by Lade and Noble at Palmerston between 7.15am and 7.45am on 22 October (the "second interview"), the accused was a person suspected of having committed a relevant offence; the second interview ought to have been recorded electronically in accordance with s142(1)(b); that the subsequent questioning of the accused at Berrimah Police Complex and at the scene where the re-enactment occurred was all part of one questioning by the police; and that the failure to electronically record the second interview resulted in the subsequent interviews being rendered inadmissible. 20. None of the provisions of Division 6A of the Act have previously fallen for judicial interpretation. The first question is whether the accused was at any time during the second interview "a person suspected of having committed a relevant offence." Section 142 does not specifically state who it is that must suspect the accused of having committed the relevant offence, but it is obvious that the Legislature must have intended the suspicion to have been formed by the police officer, or if there is more than one officer present when the admission or confession is made, by at least one of the police officers present at that time. The section does not provide for the suspicion to be reasonably held (cf s123 where the police officer's belief must be on reasonable grounds) and the expression "suspected of having committed a relevant offence" provides for a subjective enquiry only: did Lade or Noble suspect the accused of having 'raped' the victim? The verb 'suspected' is not subject to any special definition and must therefore be taken to have its ordinary English meaning. I reject the submission of Mr Wallace that this word is equivalent to the state of mind of a police officer who, having reached the accusatory stage of an interview, is required by the Judges' Rules to give a caution. Rule 1 of the Judges' Rules permits a police officer to put questions to any person, whether suspected or not, from whom he thinks useful information can be obtained. Rule 2 requires a caution to be given whenever the police officer has made up his mind to charge that person with a crime. These Rules do not have the force of law in Australia, although they are taken into account in deciding whether or not to admit confessions: see Van Der Meer and Others v R [1988] HCA 56; (1988) 82 ALR 10 at 15; [1988] HCA 56; (1988) 62 ALJR 656 at 658, per Mason CJ. It is clear from the wording of the Rules that a person may be suspected well before a police officer decides that he is going to charge an accused: see Webb v Cain [1965] VicRp 12; (1965) VR 91 at 95. The Shorter Oxford Dictionary contains the following definition of 'suspect': "to believe or fancy to be guilty ... etc with insufficient proof or no proof." The Macquarie Dictionary contains the following meaning: "to imagine to be guilty ... etc. with insufficient proof or no proof." The difficulty is that suspicion is a state of mind which can vary considerably. The suspicion may be very slight or it may be very strong, or it may be somewhere in between; it may be reasonable or unreasonable; it may be based on some facts which might be evidence in a trial, or it may be based on nothing more than intuition or instinct. But, in my opinion, the kind of suspicion required must be such as to engender a belief, whether reasonable or not, and whether or not proof is lacking, in the mind of the police officer that the person being questioned is probably guilty of the relevant offence. 21. The next question is whether either Lade or Noble entertained such a belief at any time during the second interview up until the time when the accused said that he had "sex with that woman." Neither Lade nor Noble kept any notes of the second interview and neither could accurately recall what was said. The tenor of their evidence was that the interview began by going through the statement made by Constable Tucker line by line. This lasted for approximately twenty minutes. Thereafter, according to Lade (Transcript at 24) there was "just a general discussion where certain allegations were put to him perhaps." Lade said that nearing the completion of the interview the status of the accused changed: "Mr Wallace: During that 20 minute period, in your mind, was Maratabanga's status in the investigation changing at all? ---It took - certainly towards the end it was, yes. Did you make any notes or record of this conversation?---No, I didn't. Can you remember what it was that was changing Maratabanga's status in your mind?---Yes, there was one - one response to questions asked where he said words to the effect of, 'I fucked - I fucked that white woman' or that 'one woman.' Was there anything before that that seemed to make him a rather warmer suspect - anything about his demeanour or the words he was saying?---Well, it seemed to me that nearing the completion of that particular part of the interview I formed the opinion that perhaps Mr Maratabanga certainly could assist us with this inquiry and that was probably formulated from observations of his demeanour whilst answering questions and certainly I thought there may have been something more that he could tell me in regards to the inquiry that I was carrying out. And then that further answer that you've already cited clinched the matter in your mind, did it?---Yes, that's right, yes." 22. In cross-examination Lade conceded that at the time when the second interview commenced the police had no other leads as to who the victim's attacker might be, and the person he believed would be most likely to assist him in his enquiries, was the accused. He conceded that, at the committal, he agreed with the magistrate's description of the accused as "a suspect," but he maintained that the accused was not under arrest at that time, that had the accused asked to leave, he would have had to let him go, and that all he had to implicate the accused was "policeman's hunches because of his priors." Later he described his reason for interviewing the accused as "a punt" based only on the accused's priors and his proximity to the scene of the crime at the relevant time. In cross-examination Noble said that his state of mind at the relevant time was that there was "a good chance" that the accused "may have been involved" (Transcript at 117-118). He agreed that he wished to interview the accused before interviewing anyone else, and that he wanted to put it to the accused that he was the offender. Indeed he conceded that during the second interview he in fact put it to the accused that he was the offender on more than one occasion, perhaps as many as three or four times; that the accused denied the allegations until he eventually admitted having had "sex with that woman." He denied that when the second interview commenced, the accused was in his custody. He said that he thought there was some doubt in his mind as to whether the accused was in fact asleep at the time of the offences, and that there was "a chance" that the accused had lied to the police about this. However, he maintained that there was no direct evidence linking the accused to the offence until the end of the interview, and my impression of his evidence as a whole is that, whilst he had doubts about the accused's story, he did not form any actual belief that the accused was probably the offender until the end of the second interview. The accused also gave evidence on the voir dire. His version of that interview was that, after going through his earlier statement, he was asked a series of questions as follows: "And what did the CIB say then?--Said, 'Did you know that someone (inaudible) rape that woman?' I said, 'Yeah.' What did the CIB say then?---They just told me, 'You've got to tell me this. What happen?' What did you say?---I said, 'Yes.' What did they say then?---They said, 'Did you follow her?'. What did you say?---I said, 'Yeah, follow her behind. I followed her.' What did they say?---They said, 'Did you grab her?'. I said, 'Yes.' 'Did you grab her?'; is that what you said?---Yes.

And you said, 'Yes.'? What did they say then?---'Did you dragged her?'. What did you say?---I said, 'Yes.' What did they say then?---After then - after they, 'Did you two move another place?'. I said, 'Yeah.' What did they say then?---After then they said, 'Did you two went home together?'. I said, 'Yes.' 'Did you two'?---'Went home together.' And you said, 'Yes'?---Yeah. What did they say then?---'You two was drinking?'. I said, 'Yeah, we was drinking and afterthat she took off'. What did they say then?---They said, 'Did you (inaudible) her'. 'Did you (inaudible) her'. I can't understand that; sorry?---They said, 'Did you (inaudible) her?'. 'Did you was there?'?---I said, 'Yeah, I was there with my families drinking'. Mr Maratabanga, when the CIB were talking to you at Palmerston did you say to them, 'I had sex with that woman'?---Yes. Did you say those words from your mouth?---Yes. What did the CIB say to you then, after you said that?--- They said, 'Did you come?'. Did they ask you that at the Palmerston Police Station or at Police Headquarters?---Palmerston. And what did you say when they asked you did you come?---I said yes. Oh, I said no. What did the police say then?---Did you - did you finish? I said, yeah. When you were there with the CIB at Palmerston Police Station did one of the CIB say to you, you're under arrest? ---Yes. What I say to you is that as soon as you told the CIB, 'I had sex with that woman,' the police said, 'okay Carl, you're under arrest; we don't want to ask any more questions right now.' Is that right or is that wrong?---Yes. Is it right?---Yes." 23. The substance of the accused's version was put to Lade in cross-examination (Transcript at 74-5) but was denied by Lade. On the whole, I prefer the evidence of Lade and Noble who I consider to be honest witnesses. I think it is more likely that the accused made denials, rather than a series of admissions. I consider that the accused had difficulty in remembering accurately whether what he said was said during the second interview or the later taped interviews. I accept that the police had no more than a 'policeman's hunch' when the interview with the accused commenced, I find that neither Lade nor Noble, at any time during the second interview prior to the admission of the accused that he had had sex with that woman, entertained any actual belief that the accused had probably committed the offence. Consequently I find that the accused, at the time of the second interview, was not a person suspected of having committed a relevant offence, and that it was not necessary for the police to have electronically recorded that interview. That finding does not mean that the admission made was admissible, because the Crown must still prove voluntariness. However, as the Crown does not intend to prove that admission at the trial, it is unnecessary to determine this question at this stage. It is also strictly unnecessary to consider, in the light of my finding, whether or not the recorded interview and re-enactment is affected by the failure to electronically record the second interview. However, even if the accused was "suspected" by Lade or Noble, I do not consider that the subsequent record of interview would on that account be inadmissible. Mr Lawrence relied upon certain observations in Pollard v R [1992] HCA 69; (1992) 110 ALR 385 to support his argument that there was but one 'questioning' within the meaning of s142(1)(b) of the Act. I accept that s142 applies to any 'questioning' whether or not it is a questioning under s140, and that the conversation during the second interview was a 'questioning.' Unlike s140, the word "questioning" is not qualified by the words "under s137(2)." Furthermore, s142 applies to admissions made before questioning. In order for s142(3) to operate to prevent the record of interview from being admissible, it would be necessary to find that the accused made one confession in the course of questioning at Palmerston and at Berrimah, rather than a finding that "two confessions, each made at a different time and place": see Pollard, supra, at 388 per Mason CJ. As Toohey J observed in Pollard, supra, at 417, it is a question of degree in each case as to whether there was one questioning or two, and judges are going to have to be astute to ensure that police do not try to avoid s142 by fragmenting their questioning by time and place. True it is that in the Northern Territory, unlike the Victorian legislation being considered in Pollard, any 'questioning' of a suspected person which is not electronically recorded is inadmissible (subject to it being admitted under s143 if its admission would not be contrary to the interests of justice) but, as Toohey J observed in Pollard, supra, at 417, that is not directly to the point. The questioning at Berrimah occurred after the accused was lawfully arrested and whilst detained under s137(2) whilst the questioning at Palmerston occurred whilst the accused was not 'in custody' at all. Each questioning was held at a separate place and time. The record of interview at Berrimah was preceded by explanations to the accused and to Williams as to the course to be adopted, as well as other matters, and the interview began with a number of formal questions before any 'questioning' about the offence occurred. There had been no prolonged discussion at Palmerston which had given the police insight as to what the accused might say in the record of interview. At the time when the questioning stopped at Palmerston, the only statement made of significance was that the accused had admitted that he had "fucked that woman." Although this was an important admission, by itself it was not sufficient to prove 'rape.' 24. Immediately after arresting the accused, I find that Lade and Noble intended to detain him under s137(2) of the Act. The accused was asked to nominate someone to act as his friend for the purpose of a more formal interview at Police Headquarters. The accused nominated Simon Williams, and after Williams arrived at the offices of Palmerston CIB, Lade had a short conversation with him. Lade made no record of this conversation, but as best he could recall it, he told Williams that the subject matter to be discussed was the rape of a woman in vacant land opposite or adjacent to 69 Emery Avenue in Sibbald Crescent. Noble said that Williams was advised, either by himself or Lade, that the police intended taking the accused to Berrimah, and that the accused had requested Williams to come and sit with him as his friend during the interview. He said that Williams was told that the police were investigating the rape of a white lady two nights previously, that they intended to interview the accused about that matter, and that Williams could speak to the accused in whichever language they wished. Williams' evidence was that when he arrived the police said "Carl won't speak much so you'll have to tell him so ask lingo." Williams said that the police told him "about this rape" and in effect invited him to speak to the accused, find out his story, and tell them what the accused had said. It is common ground that Williams did have a conversation with the accused in an Aboriginal language. Williams' evidence was that the accused told him that he woke up, ran and hit the woman, dragged her into the scrub, and "fucked" her. The accused's evidence was similar, although he added that Williams told him that he had to tell the truth, that he told Williams he was drunk at the time, and Williams had said to him that he shouldn't get drunk. Both the accused and Williams alleged that Williams told the police (Williams claimed it was Noble) what the accused had said to Williams. Both Lade and Noble denied that Williams was asked by them to speak to the accused on their behalf or that Williams said anything to them afterwards about what the accused had told him. I think it is unlikely that Lade or Noble asked Williams to speak to the accused on their behalf. The accused has a reasonable understanding of English and they could have spoken to him themselves without involving Williams. There would be little point to this in any event. Anything relayed to them via Williams would be inadmissible as hearsay. There is nothing about this in Williams' statement (Ext D12). Any statement made to Williams as agent for the police would not be admissible. No caution had been given at that stage. I can think of no purpose to be served by such a course other than to weaken the resolve of the accused if he had shown a lack of willingness to be interviewed. But this had not occurred. I prefer the evidence of Lade and Noble on this point, both for these reasons but also because of my assessment of them as honest witnesses. 25. However, I find that whilst the police did not fail to comply with s140(b) of the Act, the police were required by s141 to electronically record the conversation they had with the accused concerning his right to communicate with Williams. However, Division 6A does not provide that a failure to electronically record that conversation renders any subsequent confession inadmissible. I will return to consider the consequences of this failure later. 26. After arrival at Berrimah Police Complex, and before the record of interview (Ext P4) commenced, Lade said he spoke to both Williams and the accused briefly in the first interview room they went to, about the procedure that was to be adopted when the second interview commenced. He said that he also asked the accused if he wanted Legal Aid, to which the accused replied, "No, just Simon." Lade made a note of this conversation with the accused concerning Legal Aid on a pad. Noble's evidence was that he was unaware of this. Lade said, in cross-examination, that he also explained to Williams that: "... his role was to be there as a friend for Carl and to make sure that neither I or any other police officer did anything that was - could be construed as unfair on Carl and that he could speak, they could converse at any time they liked." (Transcript at 53). 27. The police "Chronology of Events" (Ext D9) records that between 0847 and 0852 "Lade/Noble/Deft/Williams to Electronic I/Room. Procedure explained." The evidence is that the interview commenced at 0852 hours. There is no other note of any conversation between police and the accused or Williams. That document was prepared by Noble. It was not put to Lade in cross-examination that his evidence on this point was wrong. The accused gave no evidence in chief on the matter, but in cross-examination, whilst his answers are somewhat contradictory, it is clear that he denied that he was asked if he wanted Legal Aid. I prefer the evidence of Lade, although it may be that some or even all of these circumstances occurred in the electronic interview room rather than the first interview room, but it is not necessary to make any finding as to precisely which room was involved. 28. The record of interview started at 0852 hours. The only caution given is that recorded at the beginning of the interview. It is clear that this was the first caution administered to the accused. The defendant did not submit that by this time the questioning or investigation under s137(2) had already commenced and accordingly that there was a breach of s140 of the Act. Nevertheless I believe that I should consider the point. The opening words of s140 are "before any questioning or investigation under s137(2) commences ..." Section 137(2) provides that the police may continue to hold a person taken into lawful custody to enable the person to be questioned or investigations to be carried out "to obtain evidence of or in relation to an offence ..." In my opinion there was no questioning of the accused "to obtain evidence of or in relation to an offence" prior to the administration of the caution. True it is that the accused was asked to state his name and address, age,date and place of birth, and questioned about Williams' presence at that time and whether he wanted him to be there as his friend. And he was told that the interview was being recorded and he was asked questions designed to ensure that he understood that what was being said was being both tape recorded and video-tape recorded. He was asked about his schooling, level of education, understanding of English and work experience and he was told what the interview was about. But there were no questions designed to elicit answers which were evidence of or in relation to an offence until after the caution had been administered. The main purpose of the questioning up to then was directed towards establishing that he could understand the caution when it was administered to him and to test his understanding of English as a language. Accordingly I find that there was no breach of s141 so far as the caution is concerned. At the end of the interview, he was given a copy of the audio tape. There is no evidence that he was given a copy of the video tape, and no evidence, in terms of s142(2)(a) that the accused was told that he was entitled to a copy of the videotape on request. The Act does not state what are the consequences of a breach of s142(2)(a). I will return to this topic later. VOLUNTARINESS 29. It is convenient, at this point, to consider whether the Crown has proved on the balance of probabilities, that the confession recorded on Ext P4 was voluntary. Mr Lawrence submitted that there was substantial non-compliance with the Anunga Rules (R v Anunga (1976) 11 ALR 412) and that the Crown had not shown that the accused had confessed in the free exercise of his choice to speak or to remain silent: Collins v R [1980] FCA 72; (1980) 31 ALR 257. Failure to comply with the Anunga Rules does not necessarily mean that the confession will not be voluntary; nor does it necessarily follow that the confession will be rejected in the exercise of judicial discretion. However, the extent to which those guidelines have been observed is obviously relevant to both matters. 30. The accused is a full blood Aboriginal born in 1966 at Maningrida. His first language is Gunavidji, but he understands, but does not speak, Barrada, Nakara and Kunalpa languages. Even before going to school, he learned English. He started primary schooling at Maningrida and finished his schooling at grade 8. The teachers were white, and lessons were in English. He says, however, that he stayed away from school a lot. He gave differing versions as to when he left school. He is able to read and write his name, but I find that he is otherwise basically illiterate. Although he understands Barrada, when speaking to Barrada people he uses English. He has been interviewed by police on a number of previous occasions. 31. On 29 October 1984 he was interviewed by Snr Constable Ruehland. This interview was a typed interview in question and answer form conducted in the presence of a police aide and George Namanabil, the accused's father (Ext P7). During the interview he was asked: "Q15. Can you tell me what I have just told you. A15. If I don't like I don't answer the question." 32. The accused signed the record after it had been read to him and he acknowledged he did not have to sign it if he did not wish to. 33. On 10 July 1986 he was interviewed again by Snr Constable Ruehland. His brother, Simon Williams, acted as his friend on that occasion also. This interview was by a typed record of interview which the accused signed after it had been read to him (see Ext P8). A caution was administered, part of which was: "Q16. Do you have to answer my questions? A16. if I want to." 34. Before signing his name, he was asked: "Q71. Do you have to write your name on this story? A71. Only if I want to." 35. Snr Constable (now Sgt) Ruehland gave evidence. He had no specific recollection of either interview. However he said that it was his practice to ensure that accused persons always fully understood the caution before proceeding further with the interview. 36. On 25 November 1985, the accused was interviewed by a Constable Stavers on two occasions. Stavers was not called but the records of interview were tendered through the accused without objection (Exts P9 and P10). Both of these records, which were signed by the accused, contained cautions. In Ext P9 part of the caution was as follows: "Q.30. Do you have to tell me any story about the blue car at Sdie (sic) camp? A.30. No. Q.31. What am I doing as we talk? A.31. Your typing down about the stories. Q.32. What might I do with these papers? A.32. Give it to the Magistrate." 37. On 22 November 1987 the accused was interviewed by Constable Ilett in the presence of his sister. The record of interview was handwritten and again signed by the accused and was tendered as Ext P1. Part of that record is as follows: "Q.10. I have to tell you that you do not have to answer any of my questions unless you wish to, okay. A.10. Yes. Q.11. Do you have to answer any of my questions today? A.11. Only if I want to. Q.12. Anything that you say to me I will write down on this paper and I will later show it to the judge in court. Do you understand this? A.12. Yes Q.13. Do you know what that judge does in court? A.13. Sometimes say good boy bad boy. Q.14. Do you have to answer any of my questions today? A.14. No.

Q.15. Will you answer my questions today? A.15. Yes" 38. Snr Constable Ilett also interviewed the accused in similar fashion on 1 June 1990 (Ext P2). Again a caution was administered, although on this occasion there was no attempt made to get the accused to repeat the terms of the caution in his own words. Constable (now Sgt) Ilett gave evidence that he knew the accused. He had been stationed at Maningrida between 1986-91 and had spoken to him on four or five occasions, some of which were on a social basis. He said that he believed that the accused understood that he did not have to answer his questions, and that the accused understood what he said to him. 39. The Crown also sought to tender through the accused a record of interview dated 26 June 1989. I admitted that record provisionally as Ext P11 as objection was taken to it. Whilst I think that Ext P11 is probably admissible in these proceedings I do not consider that it takes the issue I have to determine any further than the other admissible evidence on the topic and I therefore propose to ignore it. 40. Clearly, on the face of these records of interview, the accused has been cautioned as to his right of silence on a number of occasions and he has in the past indicated, both in his own words, and in the opinion of the police who have spoken to him, a sufficient understanding of the caution and what it means. 41. Evidence as to the accused's ability to understand English was also given by three other witnesses called by the Crown. The first was Mr Robert Cope, a senior prison officer attached to the Darwin Prison. According to Mr Cope, who had access to prison records, the accused has, since 1982, spent the following time in prison: DATE TOTAL DAYS 22/11/82 to 06/12/82 12 days 24/10/83 to 24/12/83
61 days 16/01/84 to 19/04/84 90 days 21/05/84 to 13/10/84 146 days 19/11/84 to 08/11/85 354 days 02/12/85 to 10/01/86 39 days 14/07/86 to 09/01/87 179 days 24/08/87 to 13/10/87 51 days 25/11/87 to 23/07/88 240 days 29/07/88 to 16/02/89 203 days 11/08/89 to 09/10/89 60 days

27/06/90 to 01/08/90 35 days 21/12/90 to 18/08/91 240 days 23/10/92 to 04/11/92 13 days 16/01/93 to 10/05/93 114 days Total 1,837 days (ie 5 yrs, 12 days) 42. Mr Cope said that he first met the accused in 1986 at Darwin Prison, that the accused had since then worked on a number of occasions under his supervision, and that he had also supervised the block to which he had been assigned from time to time. He said that the accused always understood instructions given to him in English and had done exactly as asked. Mr Cope said that he considered the accused's English to be above average for Aboriginal prisoners and that he would express himself clearly if he wished to object to anything. Mr Cope said he had also met the accused outside of gaol when the accused approached him just to talk socially, and had never known him to be shy. 43. The next witness was Mrs Kaye Deacon, a probation and parole officer, who first met the accused in 1987. At that time she was the manager of the Gordon Symons Hostel, at which the accused was a resident. The thrust of her evidence was that she could not recall having any difficulty in speaking to the accused in English. However, I found her evidence to be of no assistance given her concession to Mr Lawrence that he may have had difficulty and she may have forgotten about it. 44. The third witness was Mr Leon Pethick, another probation and parole officer, who first met the accused in 1989 when he was requested to prepare a presentence report in respect of him. In the course of doing so, he interviewed the accused. His evidence was that he believed from the responses to questions that the accused understood him quite well. Mr Pethick was not cross-examined. 45. The accused said in evidence that whilst in gaol he spoke mainly in English to other prisoners, including Aboriginal prisoners. There were few other prisoners from his own language group. I formed the impression from observing the accused in the witness box and listening to the interviews with police that the accused had a good understanding of simple English, that his ability to comprehend English was better than his ability to speak the language, but that nevertheless on most occasions he could make himself understood without difficulty. 46. I turn now to consider whether the accused understood the caution administered to him in the record of interview (Ext P4). The relevant passages are as follows: "LADE: Right. Now when we're finished this talk if you want to we can - um - play back this tape for you so you can watch it. You understand that? MARATABANGA: Yes. LADE: But you don't have to do that, that's just if you want to. Now what - what I'd like to talk to you about is that one white woman who was dragged from the road near your place and into the bushes, do you understand that? MARATABANGA: Yes. LADE: And - ah - when she was in the bushes someone raped her. Do you understand that? MARATABANGA: Yes. LADE: And this happened - um - early yesterday morning. Do you understand that? MARATABANGA: Yes. LADE: Now before we say anything more about that I want you to know that you don't have to talk

• talk to me about what you might know about that. Do you understand? MARATABANGA: Yes. LADE: Cause if you talk to me about what you might know about that it goes down on these tapes. You know that don't you? MARATABANGA: Yeah. LADE: And later what you say and what I say, and what anyone else says in this room, might be evidence in court. You understand that? MARATABANGA: Yes. LADE: Do you know what court is? MARATABANGA: Yes. LADE: Do they have court at Maningrida? MARATABANGA: Yes.

LADE: And whose in a court? MARATABANGA: Oh - - - LADE: Whose that number one man in a court? What do they call him?

MARATABANGA: Jacky. LADE: Who? MARATABANGA: Jacky. LADE: Jacky. MARATABANGA: (Inaudible). LADE: Right. Yeah. But when

• say you go to a court and there's one man that sits up behind a table like this one. What's - what's he - what - what do you call him? MARATABANGA: Magistrate. LADE: Magistrate - that's right - yeah. So that's his court. What he does is listens to the evidence, makes up his mind about things. Do you understand that? MARATABANGA: Yes. LADE: All right. Now I've told you that you don't have to talk to me, do you agree? MARATABANGA: Yeah I agree. LADE: And that if you do talk to me, what we're saying goes on these machine - on this tape, and later that magistrate in that court might listen to it. You understand that? MARATABANGA: Yes. LADE: All right. Now in your own words can you tell me what you understand by what I've just told you? MARATABANGA: Yes. LADE: Yeah - okay what did I just say to you? MARATABANGA: Ah - - - LADE: About that court - what did I say about that? MARATABANGA: Tell him - tell him for - for the court. LADE: Yeah. But do you have to tell me about that trouble that you might know about? MARATABANGA: Yes. LADE: You do. But you don't - what I'm telling you is - is you don't have to tell me because that's your - that's your right. You can sit there and not tell me anything. Do you understand that? MARATABANGA: Yes. LADE: So it's your choice. If you want to talk to me you can. If you don't want to talk to me that's your choice. You understand? MARATABANGA: Yes. LADE: Now do you want to tell me about that trouble? MARATABANGA: Yes. LADE: All right. What can you tell me about it? MARATABANGA: That I was - I was sleeping in the bush and I got up and woke up (inaudible) camp and saw the white lady going past and I followed her behind. She was heading down this street when followed her and dragged
• dragged her at bush. "

47. Mr Lawrence submitted that it is not apparent on the face of the interview that the accused understood his right to remain silent. He developed this submission in a number of ways. Firstly, the police had not fully complied with the Anunga Rules because (a) an interpreter should have been present (b) although Williams was present as a 'friend,' he was in reality no more than a piece of furniture (c) the police had not been able to get the accused to say in his own words, phrase by phrase, what the caution meant and many questions were formulated with the words "do you understand that?" which were specifically criticised in Anunga. Secondly it was submitted that, during the record the accused had said that he had to tell the police about the matter, and only wholly inadequate and perfunctory steps were taken to disabuse him of this. Thirdly, it was submitted that the accused, even during cross-examination by Mr Wallace, revealed no understanding of his right of silence. Fourthly, that at the time of the second interview at Palmerston the accused was 'in custody' and he should have been cautioned before the second interview commenced, and ought not to have been cross-examined during that interview. These matters are also relevant to the separate question which arises, if the record is held be voluntary, as to whether or not the record should be excluded in the exercise of my discretion.
48. The starting point is the accused's understanding of English. On the basis of my findings, I do not consider that the police were wrong to commence the interview without an interpreter present. In my opinion, considering the record of interview as a whole, and taking into account all of the evidence bearing on the question of the accused's understanding of English, the accused was able to communicate and comprehend perfectly adequately simple concepts in uncomplicated English, and bearing this in mind and the manner in which the interview was conducted, I do not consider that the accused was placed at any disadvantage in respect of the investigation compared with members of the general Australian community: see Jimmy Butler (No 1) (1991) 57 A Crim R 451 at 455. As to the prisoner's friend, Williams, his understanding of English was not as good as that of the accused, but he still had a workable knowledge which I find was sufficient for him to comprehend what was said between the police and the accused. It is true that Williams played no active role during the interview, but the interview was not lengthy and there was no occasion apparent when the accused felt the need of any assistance from him. The accused had been interviewed by police many times before and was well aware that he could communicate with Williams. He had already spoken to Williams in his own language before the interview began. If Williams had urged him to tell the police the truth, I find that he did so without in any way being prompted by the police, and if the accused accepted this advice from Williams, who after all was his brother, it seems likely that there would be little for Williams to do as a friend unless the accused wanted to seek his further advice. The choice of prisoner's friend was the accused's, and the police assisted the accused to have Williams present: see Gudabi [1984] FCA 16; (1984) 1 FCR 187 at 199-200; Jimmy Butler (No 1), supra, at 453. Williams was present when the caution was administered and he was told by the police at the beginning of the record that he could speak to the accused if he wished to during the interview and he could assist the accused if he felt that the accused did not understand what was being said. Williams had acted as a prisoner's friend before this, and had himself been interviewed by police in the presence of a prisoner's friend.
49. As to the accused's inability to repeat the caution, I find it difficult to believe that he did not fully understand his right of silence. He had been interviewed a number of times before, and had been able to tell the police he did not have to speak to them unless he wanted to. The evidence satisfies me that he understood his right as early as 1984, and that understanding clearly existed in 1986 and 1987. There is no reason why his understanding in 1992 should have been less perfect. On the contrary, as the years went by, English had become more and more the language he used most of the time in his daily life. It is true that he told the police that he answered "yes" to the question "do you have to tell me about that trouble ..." but that is not a surprising answer if he wished to make a confession or had decided to accept his brother's advice to tell the truth. The accused was told that it was his "choice" and I am satisfied that he understood the meaning of that word, and was able to make that choice of his own free will. The accused admitted that, whilst in prison, he had refused parole when offered to him, and preferred to serve out his sentence, and that this was his own choice, not anyone else's. To the extent that the accused, during his evidence, attempted to display a lack of understanding of his right of silence, I reject it as either a deliberate attempt to mislead, or, to perhaps take a more sympathetic view of it, a failure by the accused to understand what counsel were asking him to do. I am satisfied that the accused not only knew he had the right to remain silent, but that he chose to speak in the free exercise of his will. In cross-examination by Mr Wallace the following exchange occurred (Transcript at 197-8): "You've been to court many times, Mr Maratabanga?---Yes. You know what it is to go to court and face that magistrate?--- Yes. And you know what it is to come to the big court here and face that judge?---Yes. I suggest to you, Mr Maratabanga, I put - I'm saying to you that when the CIB man was telling you about going to face that court, you knew what he was talking about, didn't you? ---Yeah. You know when you go into court that magistrate or that judge can send you to prison?---Yes. Did the CIB man tell you that the video tape and the cassette tape would be shown to the court?---No. He didn't tell you that?---No. Just the video. What did he say about that video and the court?---Just when this video go to the court. Did he tell you who would watch the video in the court?--- The judge watch the video. The judge going to watch the video."
50. Later in cross-examination the accused gave the following evidence (Transcript at 200-1): "Do you remember yesterday we were talking about that time you did your full-time sentence, when you could have gone out of the prison on a bond if you wanted to and you stayed in prison to do your full-time sentence?---Yes. Whose choice was it for you to stay in prison?---Me. What did it mean to have that choice in prison that time?-- -It was me. What choice did you have?---Do my full time. Who decided to do the full time? I'll leave that. Now if I say to you you've got a choice, you can answer the question or not answer the question, whose choice is it if you answer the question?---It's me. When that CIB man said to you, 'It's your choice, if you want to talk to me you can, if you don't want to talk to me that's your choice', whose choice was it when you talked to him?---Me. And you heard that CIB man say that to you in the camera room?---Yes. And you understood the words he was saying to you?---Yeah. And you understood that you had a choice?---Yes. Can you tell us why you chose to answer the questions?---I said - I said yeah I was drinking. Yes, but you had this choice, Mr Maratabanga, to answer the questions or not answer the questions and you chose to answer the questions. Can you tell us why you chose to do that?---Yeah. What were the reasons for you choosing to answer the questions?---To tell him. Why did you want to tell him? Well, were you feeling ashamed about what you'd done with that woman?---Yes.

Did you think that Simon wanted you to answer those questions?---Yes." 51. Mr Wallace pursued this theme a little later in cross-examination of the accused (Transcript at 203): "Now, Mr Maratabanga, do you remember when Simon was here a couple of days ago sitting where you are now, remember that?---Yeah. And you were sitting in this other place over there, it seemed to me that you

• I was watching you sometimes, and you seemed to be looking away from Simon, is that right?--- Yes. Why were you looking away from Simon?---I don't know. You don't know. Are you still a bit ashamed of this trouble?---Yes. Is that one of the reasons you didn't look at Simon? Are you a bit ashamed to talk to Simon now?---Yes."

52. I am conscious of the caution that is needed before placing reliance upon answers to leading questions by counsel when an Aboriginal is being cross-examined, but having warned myself of those dangers, I consider that this evidence, when considered in the light of the whole of the evidence, demonstrates that the accused not only was aware of his right of silence, but also that he chose to speak in the exercise of his free will and further, that the reasons why he so chose to speak are demonstrated.
53. I reject the suggestion that the accused was 'in custody' at the time he was taken to Palmerston police station prior to the beginning of the second interview or that he was improperly cross-examined. At that stage I am satisfied that had he refused to speak to the police he could have left the police station. The police had insufficient evidence to charge him until he was arrested. The police are entitled to speak to any person whether a suspect or not, who they think may be able to assist with their enquiries, and are not required to administer a caution until they have decided to charge the person being spoken to: see Judges' Rules No 1 and 2. I am not satisfied that the accused believed, on anything the police had said to him, or from the circumstances generally, that he was 'in custody' at that stage. I have not overlooked the accused's evidence that the police "told" him to come to the police station to speak to them, but the accused sometimes used the word "told" in the sense of "ask." For example, at 161 of the transcript, he said: "They told me, 'You remember this been happen that day?' I said - I said, 'Yeah." and at 164: "Carl, that part of the tape we just played, you just watched it?---Yeah. That was you at Berrimah and the CIB, what was happening there?---They told me all the questions."
54. Furthermore, the accused's evidence was that he thought he was arrested after being taken to Police Headquarters (Transcript at 165). The accused did not say that he thought he had no choice but to go to the police station with Lade and Noble or that he thought that he was not free to leave. I am satisfied that the accused held no belief, based on the police conduct, that he was 'in custody' - in the sense explained by Williams J in Smith v R [1957] HCA 3; (1957) 97 CLR 100 at 129; and see R v Amad [1962] VicRp 75; (1962) VR 545 at 546-7 per Smith J - at any relevant time during the second interview.
55. In conclusion I am satisfied on the balance of probabilities that the confession obtained by police during the video-recorded record of interview was voluntary.
56. The next question is whether I should exclude the record in the exercise of either the fairness discretion or on public policy grounds. The thrust of Mr Lawrence's submission was that the Anunga Rules had not been complied with in the respects I have already outlined; the submission that the accused was 'in custody' and subjected to 'cross-examination' during the second interview was again relied on; and the breaches of the Police Administration Act, ss141 and 142(2)(a), which I have already found proved, were also relied on.
57. I have already found that no unfairness was occasioned to the accused by the absence of an interpreter. The accused's version as to what happened is quite clear. He was not subjected to cross-examination, save for some leading questions which were in confirmation of what had already been said by the accused himself. The accused appeared comfortable and relaxed during the interview. A prisoner's friend of the accused's own choice was present. Williams' comprehension of English was adequate for the purpose. Both the accused and Williams had been through the process of interrogation on a number of previous occasions. I have already found that the accused understood the caution and exercised his right to speak of his own free will, knowing his right to remain silent. I bear in mind also that following the obtaining of the accused's confession, further investigations were carried out by the police, as a result of which an eyewitness to the assault on the victim was located, and the accused's clothing was taken for forensic testing. No evidence was led as to the results of the testing, however. The accused was not apparently offered tea or coffee, but he was able to use the lavatory before the interview. The interview itself lasted only thirty-eight minutes and was therefore not lengthy. There is no suggestion that the accused was drunk at the time, although he stated in evidence that the interview room was cold and he had a hangover. No obvious discomfort is apparent on the video (Ext P4). He was asked, I find, if he wished to have Legal Aid before the interview commenced, but declined. By the time the accused was interviewed he was under arrest, but I find that that was made clear to him. I do not consider that there was any unfairness to him in the second interview. Criticism was directed by Mr Lawrence to the failure to tape record that interview, but I have already found that this was not required by the Act. Nevertheless, even if not required, it was suggested that it ought to have been done. I do not see why - the police had nothing more than a 'hunch' based on the accused's proximity to the scene, his age, and his prior convictions. He was not asked to participate in an identification parade. Until his admission that he "fucked that woman" his story was that he had been asleep. There were at least four other male Aboriginals of his age in the house at the time. In any event, the offender may not have been from that house, and there was nothing to definitely connect that house with the offender. It is unreasonable to require police to tape record every person they speak to in the course of an investigation. The statute provides the circumstances under which a tape recording is required and given that fact, I do not see how in this case it was unfair to the accused not to record a conversation which the Crown in any event does not intend to rely upon at the trial. I have not overlooked that the accused claimed he was told by the police during the second interview that "You've got to tell me this. What happened?" (Transcript at 192). I do not accept this evidence. Had I considered that there was a real possibility that this evidence was true, I would probably have rejected the subsequent record as involuntary: cf The Queen v Woods (unreported, Nader J, 25/3/91). I have carefully considered the possibility of disadvantage to the accused in having his evidence believed. No notes or other recording of the conversation was made at all. Nor was the opportunity taken to confirm the conversation during the recorded record of interview. But it is significant that the first mention of this was in cross-examination by Mr Wallace. No such allegation was put by Mr Lawrence in cross-examination of Lade or Noble in accordance with the rule of practice in Browne v Dunn (1894) 6 R
58. The consequence of non-compliance does not mean that I cannot accept the accused's evidence; it may be appropriate that by reason of inferences able to be drawn from the evidence as a whole, the accused's evidence ought to be believed: cf Allied Pastoral Holding Pty Ltd v Federal Commissioner of Taxation (1982-3) 44 ALR 607 at 634 per Hunt J. In considering this aspect of the matter I bear in mind that counsel for the Crown made no attempt to recall Lade or Noble to deal with this suggestion. However, I am satisfied that there is no real likelihood that the accused's evidence is truthful; it was not led in chief, and having had the advantage of seeing Lade and Noble and the accused giving evidence, I have no confidence that the accused's evidence is truthful on this issue.
59. As to the failure to comply with ss141 and 142(2)(a) of the Act, those breaches it seems to me are trivial. As to s141, the fact is that the accused's nominated friend was present at the interview. There can be no suggestion that the accused's relatives did not know where he was; the accused and Williams were both transported by police from 69 Emery Avenue where the accused' relatives lived. Nor is there any suggestion that Williams was not the accused's choice nor his first choice. Also I bear in mind that the accused declined the opportunity to have legal assistance. As to the breach of s142(2)(a), the accused was in fact given a copy of the audio tape of the record of interview. His legal advisers were never in doubt - nor could they have been if the audio tape was listened to - that there was also a video tape. There is no suggestion that his legal advisers did not have ample opportunity to view the video-tape before the committal or before this hearing. Both Lade and Noble claimed ignorance of the provisions of Division 6A at the time of the interview. It was not suggested that they were lying and I accept their explanations. The failure to comply was not deliberate.
60. Bearing all of these matters in mind I decline to exercise my discretion to exclude the confession made on Ext P4 either by reference to the fairness discretion or on the basis of public policy considerations, whether in accordance with the rule in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 or otherwise. THE BLOOD SAMPLE
61. After the record was concluded, the accused signed an authority in accordance with s145(1) of the Act consenting to the taking of the sample. There was some confusion in the evidence as to where the authority was signed, but there is no dispute that the authority was signed in accordance with the Act. In the end the accused conceded that he signed it at Police Headquarters after having had the caution on the form (Ext D10) read to him. Curiously, he did not maintain that he did not understand that caution. There is no reason why the sample should not be admitted into evidence. I find that it was not illegally obtained and that the accused consented to the taking of the sample. THE VIDEO RE-ENACTMENT (EXTS P5 AND P6)
62. This was conducted at the scene of the alleged crime between 1137 and 1146 hours on 22 October 1992. According to Noble, Lade asked the accused before he was taken to the scene, if he was willing to participate in the re-enactment and was cautioned that he did not have to do so. Noble's evidence on this topic was unsatisfactory. He had no notes of this conversation. The conversation was not recorded electronically or at all. No reason was able to be advanced as to why this was not done. Noble was unable to say precisely when this occurred, other than that it was whilst the accused was still at Berrimah Police Complex. Additionally Noble's evidence lacked conviction. He frequently used expressions such as "he would've been told" or "it would've been." Lade gave no evidence in chief of this conversation, and in cross-examination admitted that the only caution given was at Sibbald Crescent (which was recorded on Ext P6) (Transcript at 78). I find that no caution was administered relative to the re-enactment until Lade administered the caution at Sibbald Crescent. The terms of this caution were inadequate. Although the accused was told he did not have to say or do anything if he did not want to, he was not told that anything he may say would be recorded and may be given in evidence against him. Whilst I find that he was probably aware that what was happening and what he said was being recorded, both by audio tape and video tape, he was not told what the purpose of the 're-enactment' was. He was not later provided with a copy of the audio tape, nor was he given any opportunity to view the video tape afterwards. Although Williams was present, he was not in a position to advise the accused if he had sought any advice, as for much of the time, Williams was well separated from the accused. Although I am satisfied that the accused participated in the video re-enactment voluntarily, I reject the evidence of the video re-enactment in the exercise of my discretion on the basis that it was not fairly obtained. THE CLOTHING
63. No particular attack was made by Mr Lawrence on the taking of the accused's clothing. The seizure of the clothing was not authorised by s120BA of the Act. However the accused was under arrest for a serious offence. He had told the police in the record of interview that the clothes he was wearing were the same clothes as he had been wearing on the night of the offence. In those circumstances the police were entitled to believe that his clothes may provide material evidence, and the police were entitled to seize them without warrant: see Ghani v Jones (1969) 3 ALL ER 1700 at 1703. The police were not required to caution the accused before asking him for his clothes and he was in fact taken home to change his clothes before they were seized. In these circumstances the clothes are admissible as are the results of any forensic tests undertaken upon them. THE CONFESSION MADE TO SGT PULFORD
64. The evidence was that the accused was taken back to Berrimah, after changing his clothes, where he was taken to the watchhouse, and at 1250 hours, formally charged. The evidence of Sgt Pulford was that he said to the accused: "Carl Maratabanga, you've been charged with the following offence, namely sexual assault. You are not obliged to say anything unless you wish to do so but whatever you do say will be taken down in writing and may be given in - in

evidence. Do you wish to say anything?' The defendant answered, 'I'm guilty.'" 64. Mr Lawrence submitted that as this admission was not electronically recorded it was inadmissible. I agree. Section 142 applies to admissions made before questioning and during questioning. At the time when this admission was made, the accused had been invited if he wished to say anything in respect of the charge. In my opinion this was a questioning in the relevant sense, and what he said is inadmissible unless electronically recorded. I am not satisfied that it is in the interests of justice to admit this admission pursuant to s143. No attempt was made to explain why this was not recorded; there appears to be no reason why a hand held tape recording could not have been made, for example. Accordingly this conversation will not be admitted into evidence. CONCLUSION 65. In the result, I am satisfied that all the evidence relied upon by the Crown, except the video re-enactment (Exts P5 and P6) and the conversation with Sgt Pulford ought to be admitted into evidence. 66. As these reasons could affect the fair trial of the accused if published more widely than to the parties and their legal representatives, I direct that these reasons are not to be published, other than to the parties and their legal representatives, until after the conclusion of the trial.