Supreme Court of the NT|1994-10-07|Before: Mildren J

R v Nundhirribala [1994] NTSC 94; 120 FLR 125 (7 October 1994)

COURT IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA MILDREN J CWDS Criminal law - evidence - confessions HRNG DARWIN, 26 September 1994 #DATE 7:10:1994 Appearances not available ORDER Publication of reasons for ruling given at trial. JUDGE1 MILDREN J This is an application pursuant to section 26L of the Evidence Act to determine the admissibility of certain evidence which the Crown intends to lead at the trial of the accused. On 26 September, after a seven day voire dire hearing had been conducted, I announced my rulings and said then that I would provide written reasons at a later time. I now do so. 2. The accused stands charged of having murdered Natalie Daniels on 7 November 1993 at Ngukurr in the Northern Territory. The offence was alleged to have taken place in the early hours of that morning. The accused was arrested at 12.02pm on the same day and was taken to the Police cells at Roper River. At 12.15pm on that day he was spoken to by Det. Kappler in the presence of Det. Sgt. Grant from the Katherine C.I.B. This conversation was recorded on audio tape (Ext P2). At that stage he was under arrest. He was asked if he wanted someone to sit with him as a friend and he nominated Tony Wurramara. He was advised that Mr Wurramara was a witness and asked to nominate someone else. The accused said that he wanted Tony and nobody else. Det. Kappler said that he would ask Tony, but if he does not want to act as his friend he asked who else he would pick. He was asked also if he knew anyone in Katherine. He was told that they would be taking him back to Katherine. He was also asked if he wanted the police to notify friends or relatives to tell them that he was in police custody. He was informed that he was arrested for murder. 3. At about 1.44pm the accused was taken by other police and conveyed to Katherine. Det. Kappler and Sgt. Grant remained in Ngukurr to continue their enquiries. They arrived back at Katherine at approximately 6.13pm. After attending to some administrative matters they attended in the cells and spoke to the accused at 7.13pm. This conversation, which was also tape recorded, was admitted as Ext P3 on the voire dire. The accused was reminded that he was under arrest for murder and he was asked questions to ascertain whether he knew why he was arrested. He was asked whether he wanted the police to tell his family where he was but the accused said that he did not wish them to advise anybody. He was asked how he felt and the accused said that he wanted to sleep. The accused said that he had been fed in the meantime. He was told that Tony Wurramara did not wish to sit with him as his friend and he was asked to choose somebody else. The accused mentioned that he had a brother in Katherine and that he would think about who he wanted and let the police know in the morning. 4. At about 7.46am on Monday 8 November 1993 Detectives Kappler and Grant in the company of Sgt. Marsh attended the cells area and spoke to the accused again. The purpose of this discussion was to ascertain whom the accused wished to sit as his prisoner's friend. Det. Kappler said that he nominated his brother James. This particular discussion was not recorded. 5. At 7.45am the police commenced to make enquiries in order to locate the accused's brother and at 9.15am Sgt. Grant located him at some flats and made arrangements to collect him in about half an hour's time. 6. At 10.12am Det. Kappler spoke to James Nundhirribala at the Katherine police station in an interview room adjacent to the C.I.B. office. This discussion was recorded on audio tape, and admitted as Ext P4 on the voire dire. The accused's brother was told that the accused had asked that he sit with him as the accused's prisoner's friend. James was informed that the police intended to speak to the accused about the death of a young girl at Ngukurr the previous day. Det. Kappler informed James that the accused may not wish to speak to the police but if he did choose to speak to them anything that he did say would be recorded on video and cassette tapes, and later they would be played in court for the Judge to listen to. James was informed that his role was to help and support the accused, to make him comfortable, to make sure that he was alright and that he was not frightened and that he was not there to help the police. He was informed that if the accused needed help with anything or could not understand anything that he ought to tell the police straight away and to try to assist the accused if he felt that the accused did not understand. He was advised to tell the police immediately if there was any problem of that kind. He was advised that he could talk to the accused at any time he liked during the interview; there was no need for him to ask for permission to do this and that he may speak to the accused either in English or in their own language. The police ascertained from James what languages they spoke (apart from English) and confirmed that the accused and his brother spoke the same native language. James was also informed that if he did not think that the accused understood what was being said to him the police might ask him to act as an interpreter. There is nothing to suggest that the accused's brother did not understand the conversation or what was expected of him. 7. About an hour later the accused was removed from the cells and escorted to an interview room where he was seated with his brother and a record of interview commenced which was recorded both on video and audio cassettes. The record of interview formally commenced at 11.28am and proceeded until 12.25pm when there was a break, inter alia, for lunch. The record of interview recommenced at 1.18pm and concluded at 2.36pm. The audio and video cassettes, as well as transcripts thereof were admitted on the voire dire as Exts P5(1), P5(2), P7(3) and P7(4). 8. Counsel for the accused has challenged the admissibility of the taped conversations between the accused and the police in the police cells and also the admissibility of the formal record of interview. Mr Cato for the Crown has indicated that the Crown does not intend to adduce evidence at the trial of the conversations with the accused in the police cells. The remaining issue therefore is whether the formal record of interview should be admitted. Mr Davies for the accused claims that the record of interview was not voluntary; alternatively if it were found to be voluntarily given, it ought to be excluded in the exercise of my discretion either on the basis that it would be unfair to the accused to admit it or alternatively on the basis that it ought to be excluded on public policy grounds. 9. The Crown has also indicated that it intends to adduce evidence of bad relationship between the accused and the deceased. The substance of the evidence which the Crown wishes to adduce concerns an incident (or incidents) which occurred somewhere between one and two months prior to the deceased's death at Ngukurr. On the day in question the community was smoking the house of an aboriginal person referred to as Old Wilton Huddleston who had died a few weeks prior to that. There were a considerable number of people from the community and from other nearby areas who had come to Ngukurr for the ceremony. Old Wilton Huddleston's house was next door to the house of Mrs Cherry Daniels, the deceased's mother, where the deceased and the accused had been living. The Crown indicated that it intended to call evidence from a Mr Nelson Hall who would say that he saw the deceased running from Mrs Daniels' house across the road to the house of a Mr Cliff Thompson opposite. Mr Hall would also be called to say that he saw the accused come out from the rear of Mrs Daniels' house with a knife, that he walked over the road to Mr Thompson's place, that he saw the deceased standing behind Mr Thompson on Mr Thompson's verandah and that he saw Mr Thompson struggling with the accused. 10. The Crown also indicated that it intended to call Mr Cliff Thompson to give his version of the same incident. Mr Thompson would be called upon to say that he was sitting outside his place on the lawn. He heard noises inside the kitchen and he walked in. As he reached the front door leading to the verandah, he saw a rubbish bin fly out through the door. The accused then came out from the house and Mr Thompson asked him what he was doing at his place. At that point somebody shouted behind his back that the accused had a knife. According to Mr Thompson he looked in the direction of the accused but did not see a knife. Mr Thompson said that he grabbed the accused and asked him what he was doing. The accused then shook him off and ran straight across the road to Mrs Daniels' place. He claimed that he did not see the deceased at any time during this incident. 11. The third witness the Crown indicated it wished to call on the issue of relationship was Mrs Daniels. During the voire dire, I heard evidence from Mr Hall, Mr Thompson and Mrs Daniels as well as a number of other witnesses. I gave to Mr Davies considerable latitude during the voire dire because it was common ground that this evidence, as well as evidence relating to certain statements made by the deceased shortly before her death, and which the Crown also wished to lead, had not been led at the committal, and the Crown had given late notice of this evidence to the accused's counsel. The purpose of this latitude was to dispel any prejudice which the accused might suffer as a consequence of the lateness of the notice given. During the voire dire the Crown did not lead any evidence concerning a bad relationship between the accused and the deceased from Mrs Daniels who said that although there were minor arguments between them from time to time, none were of any consequence. 12. The Crown also intends to call three witnesses concerning statements made by the deceased shortly before her death to show that she was in a state of fear of the accused. The Crown case is that on the evening of 7 November 1993 the deceased and the accused had attended a disco at Ngukurr. The Crown intends to call a witness, Charmaine Ashley, to give evidence that whilst at the disco she had a conversation with the deceased in which the deceased told her that the accused was going to stab her because the accused had asked her to take the deceased's nephew home from the disco and the deceased had refused as she wanted to stay at the disco. This witness claimed in her evidence given before me that shortly before she was told about this by the deceased, she saw the deceased and the accused go outside the disco and the accused was "getting angry with the dead girl". 13. Later that evening the deceased left the disco and spoke to Mrs Cherry Daniels, at her mother's home. According to Mrs Daniels, at this time the deceased was sitting on the bonnet of a white Hilux utility belonging to Mrs Daniels which was in the yard. At this stage the accused was inside the house. Mrs Daniels claimed that the deceased told her that the accused was angry with her because he did not want her to dance at the disco. The deceased had said that she intended to go to her Uncle Barry Rami's place nearby. Mrs Daniels said that after this conversation she went inside the house and after awhile she had a conversation with the accused who had come from one of the bedrooms into the lounge. She asked the accused: "Why are you arguing?" The accused did not answer that, but instead he asked Mrs Daniels "Where is she?". Mrs Daniels said "I don't know". The accused then left the house in the Hilux. 14. A number of witnesses were called to say that the deceased was seen, after the disco, at Mr John Thompson's house, (a different house from that of Cliff Thompson). It is the Crown case that it was whilst she was at Mr John Thompson's house that the accused arrived in the Hilux and murdered her in one of the bedrooms of the house with a knife. The Crown intends to call a Mr Tony Wurramara to say that he heard the deceased say, a short time before the accused arrived, that she was scared of the accused because the accused was chasing her with a knife. The Crown submits that the evidence of Charmaine Ashley, Mrs Daniels, and Mr Wurramara is admissible as indicating the deceased's intentions and reasons for being at Mr John Thompson's house at that time, instead of being at home with the accused, due to her being in a state of fear, which provides an explanation as to why, when the accused arrived at John Thompson's house, the deceased ran into the bedroom and sought protection from Mr Thompson who was then in that bedroom. This evidence was objected to by Mr Davies on behalf of the accused on a number of bases. First, it was submitted that the evidence was hearsay and inadmissible. Secondly it was submitted that if it is admissible, it ought to be excluded in the exercise of my discretion, as being of trifling probative weight by comparison with its prejudicial effect. THE RECORD OF INTERVIEW 15. Counsel for the accused, Mr Davies, submitted that the record of interview was in - admissible because it was not voluntary. He submitted that the accused is a traditional aboriginal person, the very kind of person whom the guidelines in R v Anunga and Others; R v Wheeler and Others were designed to protect. 16. I make the following findings of fact concerning the accused. The accused is a full blood aboriginal. He is a young male probably about 18 years of age. I am unable to make a finding as to his exact date of birth as that has not been proven. The accused has told the police on one occasion that he was 18; on another occasion that he was 16. Having seen him in the dock I do not think he was 16 at the time; I think he was more likely to have been 18. He was born in Gove and normally lived in Numbulwar. The accused attended school at Numbulwar until about year 8 or 9 and also attended at Kormilda College in Darwin for a period of time although I am unable to find for how long. There is no evidence that he can read or write although there is evidence that he can sign his name. The accused had entered into a traditional marriage with the deceased at Numbulwar in June 1993. The deceased had met the accused whilst they were both attending Kormilda College. After their marriage the deceased and the accused lived at Numbulwar where the accused's family lived, at an out-station near Numbulwar, and also at Ngukurr. The accused's first language is not English. I find that he spoke Nuyubuyu, which is the language most of the people from Numbulwar speak, and that he also spoke Creole. He did not have any regular employment. He spent most of his time hunting and he was also involved in dancing. The accused's father is a very senior person in Numbulwar, highly respected and a person responsible for certain ceremonies in that area. The accused, however, is not an aboriginal with limited contact with western civilisation. He is able to drive a car. Certainly, whilst he was at Ngukurr and also at Numbulwar, he lived in a house. A photograph of Mr Thompson's house has been tendered. This house, at least, is a properly constructed home. It is not much from which to gain an impression of Ngukurr but one can see that the street in front of Mr Thompson's home is not paved, curbed or guttered. I do not think it would be fair to infer that any comparison can be made between Ngukurr and suburban Darwin, but on the other hand it is likely that Ngukurr is similar to most of the other aboriginal townships in the Northern Territory. There is evidence that Mr Thompson's home had electricity and that there was also a television set which people watched. There was also evidence that the accused was listening to tapes at one stage whilst at Mrs Daniels' place. The other observation that I would make was that throughout most of the voire dire proceeding the accused looked attentive and seemed to be following the proceedings with interest. He was also properly, although casually, dressed, and likewise appeared to be properly but casually dressed during the record of interview. It is apparent that during the record of interview from time to time he needed the assistance of his brother in order to explain himself. Nevertheless he seemed to have an adequate knowledge of ordinary conversational English provided that short, simple words and sentences were used. Throughout the record of interview he spoke very quietly and often hung his head. I got the impression that he was like many aboriginal people - fairly shy when talking to authority figures such as police. 17. The Crown has also established that the accused had been interviewed by the police before this occasion on two previous occasions. The Crown relies in particular upon the most recent of his previous records of interview in February 1992 (Ext. P10). The purpose of this evidence is to show that he had some familiarity with the process of being interrogated by police and that on that earlier occasion he had understood the caution when it was explained to him in English. I find that on that previous occasion he did understand that he had a right to speak or remain silent and that he demonstrated that he knew that a judge or magistrate had the power to sentence a person who had committed a crime to a term of imprisonment. 18. The record of interview is in two parts. At the beginning of the first part of the record of interview (Ext P5(1)) the accused was asked a number of questions concerning his background and his relationship with the prisoner's friend. No criticism was directed towards that course: see Rostron v The Queen ; at 198. Mr Davies did however submit that the record ought not be admitted because the police had failed to comply with of the which required the police to inform the accused of his right of silence before any questioning or investigation under commenced. Mr Davies submitted that the accused was not cautioned in any of the conversations that the police had had with the accused prior to the commencement of the formal record of interview, and that the formal record of interview was part of a continuing questioning. In my opinion the record of interview was a separate questioning. It took place at a much later time and in a different locality from that of the original discussion which the police held with the accused at Ngukurr. Similarly the questioning at the Katherine police station had taken place on the previous day. Neither of these earlier conversations were lengthy. Both were primarily designed to ensure that the accused knew the nature of the charge against him; the fact that he was under arrest; to ascertain whether he wished anyone to be advised of his whereabouts; whether or not he wished to have a prisoner's friend present during the record of interview and if so, whom. It may be that in the course of attending to these matters the accused had said things which were open to be construed as admissions. However the Crown does not seek to lead any evidence of these earlier conversations. I do not think that in all the circumstances the formal records of interview can properly be seen as a continuation of these earlier conversations: c.f. The Queen v Maratabanga (unreported, Supreme Court of the Northern Territory 23 June 1993 at pages 14 to 15, Mildren J). 19. Mr Davies for the accused submitted that the whole of the record of interview was involuntary because, notwithstanding that the accused understood that he had a right to speak or to remain silent, it was not demonstrated that he exercised his right to speak pursuant to a free choice to speak or to remain silent. His submission was that although the taped records of interview demonstrate that the accused knew that whatever he was saying was being recorded and would later be listened to by a Judge, it was not shown that he understood that whatever he said might later be used as evidence at his trial. 20. I do not accept that the mere fact that an accused person is not fully aware of his legal rights necessarily means that the confession is not voluntary in the legal sense. Mr Davies' submission was that a free choice could not be made unless the choice was an informed choice. Mr Davies was unable to support his argument with any authority. On the other hand there is at least two authorities which are contrary to the submission which he made. In Gudabi v R ; , the trial Judge had admitted a record of interview made by an aboriginal person. It was not shown that the accused had said in his own words, in accordance with guideline (3) in R v Anunga (supra), that whatever he said might be used against him in evidence, or words to that general effect. The Full Court of the Federal Court of Australia on appeal agreed that police officers did not act fully in accordance with guideline (3) which suggests that police officers administering the caution should ask the aboriginal suspect to tell the police what is meant by the caution, phrase by phrase, and should not proceed with the interrogation until it is clear that the aboriginal has apparent understanding of his right to remain silent. At page 143 of the Full Court said: "Notwithstanding this departure from the guideline, His Honour concluded that sufficient was done to ensure that the appellant was aware of his right to remain silent. Some criticism was made of his Honour's finding in relation to the conversation preceding the formal interview. It was said that his Honour fell short of stating his satisfaction that it had been clearly brought home to the appellant that he had a free choice whether to speak or remain silent and that he had spoken in the exercise of that free choice. We do not think that this criticism is justified. In reference to that matter his Honour said: "I am satisfied that the accused knew he was not obliged to answer those questions." We do not believe that, in finding as he did, his Honour fell into error." 21. More recently, the Court of Criminal Appeal (NSW) in the case of Elie Azar unanimously held that the mere fact that a person is unaware of his legal rights does not necessarily mean that the Crown would have failed to have established that the confession was voluntary. Gleeson CJ, with whom Finlay and Smart JJ agreed, said at pages 419

KAPPLER: You don't know. NUNDHIRRIBALA: No. GRANT: Do they have a Court at Numbulwar Roderick? No. Where do they have Court? NUNDHIRRIBALA: Groote Eylandt. GRANT: Groote Eylandt. Have some boys from Numbulwar been to Court at Groote Elyandt? NUNDHIRRIBALA: Yeah. GRANT: And when they go to Court do they get into trouble from the Judge sometimes? NUNDHIRRIBALA: Yeah. GRANT: And what sort of trouble do they get in from him? Hey? NUNDHIRRIBALA: Send'em away. GRANT: Send them away to jail? NUNDHIRRIBALA: Yeah. GRANT: So you know what that Magistrate does in a court don't you? NUNDHIRRIBALA: Yeah. KAPPLER: Alright. So you understand that if the Magistrate or Judge listens to these tapes later, and you tell me about

that trouble, you might get in big trouble from the Judge. Do you understand that? Do you understand that Roderick? NUNDHIRRIBALA: Yeah." 23. It is true, as Mr Davies points out, that there are a lot of long pauses during this passage as well as during other passages when the accused is having the caution explained to him and I accept also that the answer "yeah" to questions like, "Do you understand that?", are virtually worthless. But on the other hand, the passage does demonstrate that he was aware that the tapes might be listened to by a Magistrate, and he had an awareness that people who get into trouble go to Court at Groote Elyandt and are sent away to jail. 24. I accept Mr Davies' submission that the accused was a person to whom the Anunga guidelines applied and that guideline (3) was not fully complied with. But the most important part of guideline (3) was complied with, namely, that the interrogation should not proceed until the aboriginal had an apparent understanding of his right to remain silent. On that issue there can be no doubt. The fact that he had a choice to speak or to remain silent was translated to him in Creole by the prisoner's friend at the commencement of the record of interview and at the time of the resumption of the record of interview in the afternoon the accused acknowledged that he had a right to "stay quite". 25. Mr Davies also submitted that there was a breach of guideline (4) of the Anunga guidelines as the police had directed questions to the accused which were in the nature of cross-examination. Guidel ine (4) provides as follows: "Great care should be taken in formulating questions so that so far as possible the answer which is wanted or expected is not suggested in any way. Anything in the nature of cross-examination should be scrupulously avoided as answe rs to it have no probative value. It should be borne in mind that it is not only the wording of the question, which may suggest the answer, but also the manner and tone of voice which are used." 26. So far as the first part of the record of interview is concerned, (up until the lunchtime break), I am unable to detect any questions which are in the form of cross-examination. 27. But during the second part of the record of interview after lunch, the form of the record of interview takes an entirely different course. Up to this point the accused had told the police that on the night in question he had attended at the disco at Ngukurr, having driven Graham Daniels' white Hilux truck to the disco. He told the police that there were a lot of people at the disco and the names of some of the people he saw there. He said that he had been dancing at the disco with Richard Thompson but with nobody else, and that everyone was having a good time dancing and listening to the music. He said that he was "half shot" and had been drinking VB or Victoria Bitter beer. He said that he had drunk five beers in half an hour at his house before he went to the disco. He said that he was happy and that he had seen the deceased girl dancing at the disco with Fiona Wurramara. He said that he had spoken to the deceased at the disco and had asked her to go back home and she had said that she would. After the disco finished, he returned home with the deceased, Tony Wurramara and Richard Thompson. He said that he had dropped Tony Wurramara and Richard Thompson off at a place called Silver City near the police station. He also said that he took the deceased back home to Graham Daniels' place; apparently he had dropped her off first. When he returned home he and the deceased had supper and after that he went to sleep with the deceased. Later on he woke up. He denied that there had been a fight between them and said he then went looking for the deceased to bring her back home. He also said that he saw two bushmen carrying a knife at the place where the disco had been held and that these men gave him the knife to kill the girl. The prisoner's friend had indicated that the accused had been cursed by them. The accused said that he went to the Thompson house and that he stabbed the deceased, but that he did not know what he was doing. The accused claimed that it was a mistake. He said that he arrived at the house in the Hilux. He said that he was unable to recognise the knife, and a knife which has been found at the scene was shown to him by the police but he did not recognise it. He said that when he went inside the house he was wild and he did not know what he had been doing. He said that he saw the dead girl inside a room, the first room on the right-hand side as he went in through the kitchen. He said that he missed her with the knife on the first occasion but then he stabbed her. He maintained that he stabbed her only once. After that he ran away. He repeated again that he did not know what he was doing. He indicated that the knife which had been given to him was about 30cm long and on one occasion he said that it was really sharp. He said that he thrown the knife away. He said that later he went back to the house to look for the knife but he could not find it. He said that when he stabbed her, the light was off in the room and that he only stabbed her "a little bit". Later he said that the knife was half blunt and that the two aboriginal men had been cursing him. Towards the end of the first part of the interview he started to break down and accordingly the opportunity was taken to terminate the record of interview and have a lunch break. 28. By this time the police had at least two possible explanations for the killing. One of the explanations was that he was given a knife by two aboriginal men who had told him that he had to kill the deceased and had put a curse upon him. The other was he simply did not know what he was doing and that he was wild when he went into the room. It may also have been that both of these explanations were really part and parcel of one explanation. After the recommencement of the record of interview he reiterated that he had stabbed the deceased only once. He was asked what he thought would happen to the dead girl and he said that he thought that she would die but he did not know why. He also said that he wanted her to live, and that he had thought when he stabbed her that he would hurt her really bad. He also said that he thought that if he stabbed her there was not a good chance that she would die. After he stabbed her he said that he stood there watching her; that he cried; and that after he ran away from the scene he went to the church where he cried. He said that he was feeling sorry for stabbing the girl and was frightened of the police. He reiterated that he didn't want to kill her and that he had found out later that she had been taken to hospital and had died. 29. At this stage in the record of interview the police began to put to the accused parts of a statement which they had taken from another witness, John Thompson. The accused told the police he knew who John Thompson was and confirmed that John Thompson was present at the time when he had stabbed the dead girl. He was told that the police had been informed that at the time he was at the disco he appeared to be angry when he was looking at the deceased. He was asked whether he was angry at that time, and he said no, he was too drunk. Then he was asked this: "KAPPLER: John Thompson tells me that he was sleeping in that room - that first bedroom on the left side - and he woke up and he heard that dead girl screaming for help. She was saying for John to stop - stop him. When she said stop him she meant you. Is that true? NUNDHIRRIBALA: Yeah. KAPPLER: Was she yelling that out? NUNDHIRRIBALA: Yeah. KAPPLER: Why was she yelling that out for? NUNDHIRRIBALA: Don't know." 30. He was then asked some further questions about the events and then the police returned to Thompson's statement and the following occurred: "KAPPLER: That John Thompson - okay - he says that when he woke up he looked up and saw that you were inside his bedroom and - that that dead girl was hiding behind John. So he was between you two - you and that dead girl. Is that right? NUNDHIRRIBALA: Yeah. KAPPLER: And he said it was a little bit dark but he could still see. Is that right? NUNDHIRRIBALA: Yeah. KAPPLER: He says that you had that knife in your hand and he says that that knife was a brown wood colour with metal blade and he says that - um - you took - ah - two swings at him with that knife. NUNDHIRRIBALA: No only one. KAPPLER: Hey? NUNDHIRRIBALA: One. KAPPLER: Who did you swing that at? NUNDHIRRIBALA: That was one.

KAPPLER: And who was that for? NUNDHIRRIBALA: I don't know." 31. And a little later on the interview proceeded: "KAPPLER: He says that you aimed the knife at him - at his left shoulder two times. He says you had a go at him this way - like if we're facing like this now - that you had a go at this shoulder two times. Is that right? NUNDHIRRIBALA: Yeah. But. KAPPLER: But what? He also said that he - he grabbed your right hand to - to stop him - stop you from stabbing him. Is that right? NUNDHIRRIBALA: Yeah. KAPPLER: And he had - he pushed and wrestled with you - is that right? NUNDHIRRIBALA: Yeah.

KAPPLER: And he says that he pushed you back towards the door. Is that right? NUNDHIRRIBALA: Yeah. KAPPLER: And then he went back away from you and that he was standing on that mattress still between you and that dead girl. Is that right? NUNDHIRRIBALA: Yeah. KAPPLER: And then he says that you came at him and that dead girl again and that you pushed him down onto the mattress. Is that right? NUNDHIRRIBALA: Mmm. KAPPLER: And he says that while he was sitting on his - on his backside on that mattress and that dead girl was still trying to hide behind him - he was trying to push you away while he was sitting down. Is that true? NUNDHIRRIBALA: Can't remember. KAPPLER: You can't remember that? NUNDHIRRIBALA: Yeah. KAPPLER: He says that while - do you remember - do you remember John - do you - do you remember pushing John down on the mattress? NUNDHIRRIBALA: No. KAPPLER: No. Did he fall over on the mattress? NUNDHIRRIBALA: I don't know. KAPPLER: He says that while he was on - on the - on that mattress on the - sitting down that dead girl was still trying to hide behind him. Is that right? NUNDHIRRIBALA: Yeah. KAPPLER: And that you came in really close and her hands were on his shoulders from behind. Would that be right? NUNDHIRRIBALA: No. KAPPLER: No that's not right or you can't remember? NUNDHIRRIBALA: Can't remember. KAPPLER: He says - John says then that you lean - leaned around behind - his back to where this dead girl was and he says that you moved your arm - right arm this one here - you moved that right right arm twice at that dead girl with the knife. Hey? NUNDHIRRIBALA: Its the right arm punch that (inaudible). KAPPLER: You use right arm to punch him? NUNDHIRRIBALA: Yeah. KAPPLER: Yeah. But John says you leaned around over him to get to that dead girl and he says that you stabbed at that dead girl twice. Two times. Is that right? NUNDHIRRIBALA: (Native language) Translation Roderick: I punched him twice and had the knife in my left hand. KAPPLER: What did he say James? NUNDHIRRIBALA J: With the fist. KAPPLER: With the fist. NUNDHIRRIBALA: (Native language) Translation: Knife was in my other hand. NUNDHIRRIBALA J: He was holding that knife (inaudible). KAPPLER: Right. The left hand? NUNDHIRRIBALA J: Yeah. KAPPLER: Which hand was the knife in when you stabbed that dead girl? NUNDHIRRIBALA: It was the right hand (inaudible). KAPPLER: Right. This is just what John says okay. Now John says that after he saw you stab at that girl twice he says that she just kept yelling out "stop him - stop him". Is that right? NUNDHIRRIBALA: Yeah. KAPPLER: And he says that after you stabbed at that dead girl two times that you stood back and you still had that knife in your right hand and he said that he could see blood on that knife. He then said that you stood back a bit further and you dropped that knife on the floor near the mattress. Is that right? NUNDHIRRIBALA: Yeah. KAPPLER: And then he says that you turned around and you - you walked out the door. Not running - just walking fast. Is that right? NUNDHIRRIBALA: Yeah. I just slow." 32. A little later in the record of interview the police told the accused that some people at Ngukurr had told the police that the accused did not run away from the scene but that he had driven away in the Toyota Hilux: "KAPPLER:... Some people at Ngukurr have told us that you drove away in that truck

that Hilux - Toyota Hilux. Is that right? NUNDHIRRIBALA: Mmm. KAPPLER: And that you did skid marks when you took off. What do you say to that? Is that true? NUNDHIRRIBALA: (inaudible) I don't know - might be. KAPPLER: Might be. You - and not long after you drove off then policeman pulled you up didn't they? NUNDHIRRIBALA: Yeah. KAPPLER: And they talked to you didn't they? NUNDHIRRIBALA: Yeah. KAPPLER: What did they talk to you about? NUNDHIRRIBALA: Told me "you settled down now" an' I say "yeah". Then they take me at home. KAPPLER: Mmm. NUNDHIRRIBALA: Then I run away to the church.

KAPPLER: You ran away to the church? NUNDHIRRIBALA: Yeah. Left that club and run away to church." 33. A little later on the police followed this up further: "KAPPLER: ... The police when they pulled you up they spoke to you close up didn't they? NUNDHIRRIBALA: Yeah. KAPPLER: Now do you think that if you'd been drunk or half shot the police would let you drive away or was you sober? NUNDHIRRIBALA: Um - I was sober. KAPPLER: Were you sober when you spoke to the police? NUNDHIRRIBALA: Yeah. KAPPLER: Yeah. You weren't drunk at all when you spoke to the police? NUNDHIRRIBALA: Yeah. KAPPLER: Where you sober? NUNDHIRRIBALA: Yeah." 34. After that the police returned to the subject of his state of mind at the time of the killing and asked why he stabbed her. The accused said that he did not know because they put a curse on him. He was then asked this:

"KAPPLER: If I say to you that I think you went and stabbed that girl because she left you earlier in the - in the night

and you got angry and you thought you'd go and teach her a lesson. Is that right? NUNDHIRRIBALA: Yeah. KAPPLER: Is that true or not true? NUNDHIRRIBALA: Not. KAPPLER: You tell me? NUNDHIRRIBALA: Not true. KAPPLER: Its not true. NUNDHIRRIBALA: Mmm. KAPPLER: So is that a true story when you tell me about them two blokes give you that knife? NUNDHIRRIBALA: Yeah. KAPPLER: So why did you go and do it then? NUNDHIRRIBALA: I don't know. They - they curse me." 35. He was then asked some questions about who these people were who put the curse on him and what he meant by the curse, and he gave an explanation that he did not know who the men were. He said that he had never seen them before; did not know why they cursed him; that they were fellows from Ngukurr; and repeated that they were the people who had given him the knife. At this point Sgt Grant said: "GRANT: I think you might be making that up Roderick. Hey? I think you might be making that up so you don't get into trouble. Is that true? NUNDHIRRIBALA: Yeah. Not making anythin' - it true hey." 36. He was then asked some further questions about how many times he had stabbed the girl and whether he stabbed her hard or not and whether or not he wanted to kill her. He was asked again about the knife and whether he stabbed her because he was cursed or because he "wanted to show her for the next time". He was asked some further questions about these people who put the curse on him and what they looked like. He said that one was short and one was long. At this point Kappler said: "KAPPLER: Your not trying to - your not making this story up about the curse just to get yourself out of that little bit more - trying to get yourself - take the blame off just cause you were cranky. Is that the

is that true? That your just making it up about these two blokes so that you don't get all the blame? NUNDHIRRIBALA: Its true. Saw it with own eye. KAPPLER: You saw it with your own eye? NUNDHIRRIBALA: Yeah. KAPPLER: So why do you say one minute you were cranky and you just want to show her for next time and then on the other hand your saying that these two blokes cursed you and you didn't know what you were doing? NUNDHIRRIBALA: I got first one then. KAPPLER: Well its either one or the other. NUNDHIRRIBALA: That first one - that second one (inaudible). GRANT: What was that? NUNDHIRRIBALA J: Takin' about the two bloke. NUNDHIRRIBALA: Mmm. KAPPLER: Was he talking about the first excuse or the second excuse then? Is that what he's referring to? NUNDHIRRIBALA: Yeah. KAPPLER: Meaning? So which is the true story? Roderick?

Did you stab that girl because you were angry then you felt sorry later? NUNDHIRRIBALA: Yeah. KAPPLER: Is that the way it happened? Cause you were angry because she'd left you when you were sleeping? NUNDHIRRIBALA: Yeah. KAPPLER: And then when you were looking around for her and you found her you said you were really wild - is that right? NUNDHIRRIBALA: Yeah. KAPPLER: And that's why you stabbed her. NUNDHIRRIBALA: Yeah. KAPPLER: And you wanted her to go to hospital - is that right? NUNDHIRRIBALA: Yeah. KAPPLER: But you didn't want to kill her? NUNDHIRRIBALA: Yeah. When she went to hospital I heard she died." and then "KAPPLER: ... So - and when you stabbed her you stood back and dropped that knife and walked away. Didn't you? NUNDHIRRIBALA: Yeah. KAPPLER: Cause you were still angry weren't you? NUNDHIRRIBALA: Yeah. KAPPLER: Why were you angry? NUNDHIRRIBALA: She ran away from me. GRANT: She been run away from you? KAPPLER: And that's - now

is it true or - true about these two blokes or not? NUNDHIRRIBALA: (Native language) NUNDHIRRIBALA J:Translation: Him true or nothing. KAPPLER: Its not is it? NUNDHIRRIBALA: Yeah. KAPPLER: You try - you made that story up didn't you? Can you lift your head please? Did you make that story up about those two men? GRANT: Where - where did you get the knife from Roderick? Can you remember? NUNDHIRRIBALA: From that truck now. GRANT: From the truck. NUNDHIRRIBALA J: Hilux. GRANT: Where abouts in the Hilux? Where abouts in the Hilux was that knife? Inside or in the back? NUNDHIRRIBALA: Back. ..." And later "KAPPLER: ... is it right if I say that because that dead girl left you when you were sleeping. NUNDHIRRIBALA: Yeah. KAPPLER: That you went after her? NUNDHIRRIBALA: Yeah. KAPPLER: And that's what made you wild? NUNDHIRRIBALA: Yeah. KAPPLER: Is she suppose to do what you tell her? NUNDHIRRIBALA: Yeah. KAPPLER: Cause she's your wife hey? NUNDHIRRIBALA: Yeah. KAPPLER: Do you think it was right or wrong to stab her? NUNDHIRRIBALA: Right. KAPPLER: Why? NUNDHIRRIBALA: I don't know (inaudible). NUNDHIRRIBALA J: That - that - ah - that dead girl got a lot of boyfriend. GRANT: Lot of boyfriends? KAPPLER: Got boyfriends? NUNDHIRRIBALA: At Ngukurr. GRANT: At Ngukurr. Is it still the right thing to stab her though? Is that the right thing or the wrong thing? NUNDHIRRIBALA: Don't know."

Notwithstanding guideline 4 in Anunga (supra) concerning the undesirability of anything in the nature of cross-examination , it was submitted by Mr Cato that the mere fact that the accused had been cross-examined did not necessarily mean that the accused's ac count was not voluntary. In Van Der Meer and Others v R [1988] HCA 56; (1988) 82 ALR 10, the majority of the High Court, Wilson, Dawson and Toohey JJ, said, at pages 25 - 26: "The aggressive style of the interrogations was undesirable and in other circumstances may have lead a trial judge in the exercise of his discretion to exclude evidence of the interviews on the basis that they were unfair. However, as we shall see, in the present case nothing in substance of an incriminating kind resulted from the interrogations conducted in this way."
It is clear that the majority of the High Court regarded the methods used in that case, which amounted to cross-examination of the accused, as not going to the question of voluntariness but going to the question of the exercising of the Court's discretion. Mr Cato also referred me to the case of R v Wilson (1981) 1 NZLR 316. In that case a young Maori who had denied being responsible for a fairly horrific homicide was subjected to a form of interrogation which involved cross-examination. Cooke J, who delivered the judgem ent of the Court of Appeal said, at page 324: "The explanatory notes to rule (3) make it clear that after a person in custody has been cautioned he should not be subjected to cross-examination, although questions to cle ar up ambiguities in any statement he has made are permissible. Whether the questioning amounts to cross-examination can be a matter of degree, and again the restriction is not to be strictly applied to the extent of handicapping the police unreasonably in their enquiries. But here one is driven to regard the whole interview from 2.45pm when the statement made by the suspect in custody was first challenged and continuing after cautions at about 4.45, 5 and 5.30pm until 8.11pm when he confessed as in truth and substance a cross-examination... "We do not overlook that from one point of view the influencing of the appellant to speak could be called a very effective piece of police work. Nor that this was a brutal and shocking killing of a defenceless elderly woman in her own home. But it is fundamental in the New Zealand system of justice that confessions obtained by overbearing the will of a person in custody by tactics amounting to compulsion will not be received in evidence. Whether a case is of that kind is a question of fact and degree..."
Mr Cato sought to distinguish the authority of The Queen v Bankowski (1971-1972) 18 FLR 179, a decision of Smithers J in the Supreme Court of the Australian Capital Territory. In that case His Honour said, at page 182:

"It is quite improper to cross-examine an accused person in custody. If the statements of the accused are flung back in his teeth with expressions of disbelief that is an improper form of cross-examination. see Williams J in Smith v The Queen [1957] HCA 3; (1956) 97 CLR 100 at page 130. If his statements are refuted by an intimation that some witness had stated to the contrary, this is an improper form of cross-examination. Whether or not it be regarded as cross-examination the statement to the accused that such and such witnesses say this or that against the accused in a material particular is an independent impropriety. See Smith v. The Queen (supra) per Williams J, at p129. See also R. v. Brown and Bruce (1931) 23 Cr App R 56. If it is done to induce a confession, as it obviously was in this case, it amounts to pressure on the part of a person in authority and is calculated to deprive any supervening confession of the quality of voluntariness." 40. I consider that it is patent that the police adopted quite different tactics during the second part of the interview with the accused, designed to force the accused to depart from his earlier assertions that he had been half drunk at the time; had carried out the killing because of a curse that had been put upon him by other aboriginal men; that he did not know what he was doing and that he did not intend to kill. In cross-examination of Detective Kappler, t he following question was put to him (Tr.p 106): "What it amounts to, in many instances, is contradicting the accused in the account that he has given you?---That was the purpose of putting those suggestions to him, Mr Davies, yes. And encouraging him to comment more, to drag more out of him?---No, I wouldn't say to drag more out of him, as you put it. It's certainly putting discrepancies as offered by other witnesses to an accused person and offering then the opportunity to comment, whether one way or another" 41. I accept Mr Cato's submission that that mere fact that a cross-examination occurs does not necessarily mean that the accused's will was overborne. I accept also that the mere fact that cross-examination has occurred will not always result in rejection of any part of the record of interview even in the exercise of a judicial discretion. However, I am satisfied that what occurred here was that the accused's will was overborne by the nature of the cross-examination to which he was subjected and that so much of the record of interview that was recorded on the fourth audio tape (exhibit p7(4)) is involuntary and inadmissible. If I am wrong in that conclusion I would nevertheless exclude that portion of interview in the exercise of my discretion. The form of cross-examination in this case on at least four occasions produced expressions of disbelief by the police. As the Court of Criminal Appeal (Victoria) said in R. v. Pritchard [1991] VicRp 8; (1991) 1 VR 84 at 93: "cross-examination as such, though forbidden by the Chief Commissioner's Standing Orders, may often not lead to the exclusion of the answers it produces. But cross-examination questions that carry scornful overtones of disbelief are altogether another matter. It is because of the real possibility of exposure to questions of such a damaging nature that an accused will choose to give unsworn evidence and thus exempt himself from cross-examination. The right to do so will, or may be, rendered nugatory if the jury is allowed to view a reproduction of just such an examination conducted at an earlier date by a skilled police questioner." 42. In the Northern Territory the accused does not even have the right to make an unsworn statement. Thus his position is rendered even more tenuous in that the jury will be able to view on the video tape a skilful cross-examination of him. His choice in the Northern Territory is either to give evidence and subject himself to cross-examination or to remain silent and face the consequences. 43. Reference should also be made to the decision of the Full Court of the Supreme Court of South Australia in The Queen v. Leak (1969) SASR 172 at 173, 174: "... In our view a witness ought not to be asked whether another witness is telling lies or has invented something. Any witness, of course, can be asked if what another witness has said is true. He can be asked if he knows of any reason

why the other witness should be hostile to him or should tell a false story about him. But if he says that what the other witness has said is not true, he should not be asked to enter into that witness's mind and say whether he thinks the inaccuracy is due to invention, malice, mistake or any other cause. To do so is to ask him for opinion evidence and in our view the normal objections to that type of evidence apply. It is for the jury to decide which witness is telling the truth and how far what they think to be an inaccuracy on the part of any witness is deliberate or otherwise and what effect such inaccuracy has on the rest of the witness's testimony. No attempt should be made by the cross-examiner to drive any witness, least of all the accused, into saying that any other witness, least of all a detective, is a liar." 44. That passage has been applied by the Full Court in South Australia in relation to providing a guide for the interrogation of suspects: See The Queen v. Lacey (1982) 29 SASR 525 at 537. Kappler's question to the accused asking him whether he thought that the police would have allowed him to drive away if he had been drunk or half shot was quite improper. The accused was forced either to admit that he was sober or to imply that the police were not carrying out their duty. 45. As to the manner in which the statement of John Thompson was put to the accused, on a number of occasions the police read or put to the accused in one question a number of propositions which were apparently taken from the statement of John Thompson and then asked the accused if that was true. It is not always clear whether the accused was agreeing with the last of the propositions or with all of them. On one occasion when the accused denied part of Thompson's statement, the police did not accept his denial: "KAPPLER: And that you came in really close and her hands were on his shoulders from behind. Would that be right? NUNDHIRRIBALA: No. KAPPLER: No that's not right or you can't remember? NUNDHIRRIBALA: Can't remember." 46. Mr Davies submitted that I ought to reject the whole of the record of interview in the exercise of my discretion. The matters which he puts in support of his submission may be summarized as follows:-

The accused did not understand fully the nature of the caution which had been administered to him. I have already discussed this submission.
The manner in which the statement of Mr Thompson was put to the accused was unfair. I have already dealt with this submission in part.

Leading questions were put to the accused on a number of occasions throughout the whole record of interview. 4. The prisoner's friend provided explanations on behalf of the accused which were not proven to be the subject of anything which the accused had said. 5. There were either inaccurate translations or no translations made by the prisoner's friend of various things

which the accused had said. 6. The police had attempted on a number of occasions to get the accused to acknowledge that the knife which they had in their possession was the relevant knife. This was oppressive. 7. The number of passages which should be excluded in the exercise of my discretion would so interrupt the natural flow of the record of interview as to create prejudice to the accused. 8. There were a number of matters which the accused had raised that had not been properly explored by the police or alternatively, if explored, were contained in so much of the record of interview as had been shown to be involuntary, and therefore the accused's explanations as to these matters were not able to be put before the jury. 47. As to the first video tape which is represented in the transcript (by exhibits P5(1) and P5(2)), it is true that the transcript reveals that the prisoner's friend was the first to suggest that the knife was given to the accused by the two aboriginal men and it was he also who first suggested that they cursed the accused. But on the other hand it is also clear that the accused himself was saying quite clearly and at times in his own language that he was given the knife by these two men to kill the deceased girl and that they had put a curse on him. The question is whether it would be unfair to the accused to admit so much of the record of interview as relates to those passages. Having considered that matter I have come to the conclusion that those passages ought to remain. It is true that these suggestions emanate initially from the accused's brother, but the police did not know that, and there was nothing unfair to the accused in the police following those matters up, particularly as the accused himself ultimately adopted them. It is not as though the police had put the words into the accused's mouth. Furthermore it was the accused himself who first mentioned "the two black fellows". 48. The only other matter that relates to the first two sections of the record of interview Exts P5(1) and P5(2), is a criticism of a question put right at the end of Ext P5(2) where Kappler said to the accused that he had said previously that he was "really wild" when in fact the accused had only said he was "wild". I do not think that this mis-statement is of any real significance. Viewed as a whole it is my view that so much of the record of interview as was conducted before lunchtime ought not be rejected in the exercise of my discretion. Even if I were to reject the whole of the rest of the record of interview I do not see that there is anything unfair to the accused in admitting the first part of the interview. It is true that the accused was asked a number of times where he got the knife from, but this only occurred twice in the first part of the record of interview, and I do not think that the questions relating to the knife were at that stage in any way unfair or oppressive. There are some inaccuracies in translation in exhibit P5(2) by the prisoner's friend. For example, at page 7 of Exhibit P5(2) it was the accused's brother who first said that the accused had stabbed the deceased with the knife and this appears to have been not something which arose from anything that the accused himself had previously said. What the accused had said up until then is that he had been given the knife and told to go and stab the deceased. However the accused himself later made it clear that he did stab the deceased on at least one occasion. I think with minor editing there is no reason why exhibit P5(1) and (2) ought to be excluded in the exercise in any discretion as to fairness. As to public policy grounds, I can find no reason why that part of the record of interview ought not be admitted. 49. As to exhibit P7(3) I consider that the record of interview from approximately page 10.4 onwards should be excluded in the exercise of my discretion primarily because of the difficulties created by the manner in which the statement of John Thompson was put to the accused. I do not think it would be fair to the accused to admit against him his admissions in relation to that statement bearing in mind the number of times that multiple propositions were put to him followed by the question "Is that right?" On one occasion the accused accepted a proposition put to him about Mr Thompson's statement with the words "Yeah but" and the police did not permit him to explain whatever his qualification may have been. I note also that the form of the questioning relating to the Thompson statement was in quite a leading form and often resulted in monosyllabic "yeah" answers which in the circumstances of this interview are quite worthless. In my opinion that part of the record of interview contained in exhibit P7(3) from page 10 onwards when Kappler introduces John Thompson's statement to the accused, to the end of Ext P7(3), ought to be excluded in the exercise of my discretion on the ground that it would be unfair to the accused to admit it in evidence against him. The remaining part of the record of interview needs to be edited to remove certain of the statements made by the prisoner's friend which were not proven to be the result of a translation of anything that had been said by the accused and which had not later been adopted by him. There are short passages on page 5, 6 and 7 and two short passages on page 9 of Ext P7(3) that fall into this category. Fortunately those passages can be edited without altering the flow of the record of interview and without leaving out anything of significance said by the accused. 50. A submission was made by Mr Davies that the accused's choice of a prisoner's friend was not an informed choice because the role of the prisoner's friend had not been explained to the accused in a proper manner by the police: see my comments in R v Weetra [1993] NTSC 103; (1993-1994) 93 NTR 8 at pages 11 to 12. Those comments were not available to the police at the time of this record of interview, as I handed down judgment in that matter nearly a month after the record of interview in this matter had been completed. I am unable to accept the submission that there was anything unfair in the selection of the prisoner's friend which would require me to exclude the whole of the record of interview in the exercise of my discretion. The person chosen to act as prisoner's friend had had his role explained to him quite thoroughly by the police before the record of interview commenced. He certainly knew what was expected of him and throughout the record of interview appeared to be alert and participated on a number of occasions by acting as interpreter. He was also the accused's brother, a man in his early thirties with a reasonably good command of English, and he also naturally spoke the accused's language. It is clear that he understood that the accused had a right to speak or remain silent. The only criticism that can be directed to the prisoner's friend in my view is that it appears from the transcript that on occasions he appears to have said things which are not proven to have been said by the accused. It may be that the accused did say these things because there are times when it appears that the accused may have said something which was not audible and therefore not able to be translated. As the prisoner's friend did not give evidence I do not think it would be right to admit, as against the accused, the statements made by the friend which are not shown to have been a translation of anything the accused said. I therefore think, provided that these passages are edited, there is no reason otherwise why the balance of the record of interview ought not be admitted. 51. I have considered Mr Davies' submission that there might be prejudice to the accused in admitting only portion of the record of interview. Obviously where there are going to be passages edited this will become evident to the jury. I think that any prejudice to the accused can be overcome by a suitable direction from myself. I propose to tell the jury that it is my function to rule on the admissibility of evidence and that I have caused passages to be edited from the record of interview where the prisoner's friend has made statements which are not proven to be accurate translations of what the accused said. I will also tell the jury that the record of interview comes to an abrupt halt because I have found that the record of interview from that point on ought not be admitted in evidence. The jury will be told that they are to decide the case solely on the evidence before them and they are not to speculate. I have no doubt that the Darwin juries exercise a great deal of commonsense and follow directions of this kind and I have no reason to believe that the accused would be in any way prejudiced by this course. 52. I turn now to consider whether the Crown ought to be permitted to lead the evidence of Mr Hall and the evidence of Mr Thompson concerning the incident or incidents which occurred on the occasion of the smoking of old Wilton Huddleston's home some weeks before. 53. Mr Cato for the Crown submitted that the evidence was admissible as it tended to show that at that time shortly before the deceased's death the accused and the deceased's marriage, which was of short duration, had already reached a strained rather than a happy relationship. Mr Cato relied heavily upon the decision of the High Court in Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334. In that case the accused had been tried for the murder of his wife who had died of gun shot wounds received by her while she was driving a tractor during the hours of day on a property in Victoria which the accused was managing. The accused had borrowed a shotgun from a neighbour for the purposes of shooting rabbits. He claimed that on the day of his wife's death he had placed a rifle on top of a load of hay and set the safety catch on the gun by pushing it forward. In fact, this action released the safety catch but the accused denied that he knew this. He claimed that he had not discharged the gun and that it had been discharged accidentally perhaps when a dog had jumped upon the load of hay. There were no eye witnesses present. The contest at the trial was as to whether the accused, who admitted to being present at the time, shot his wife in the back of the head or whether the gun placed on the load of hay accidentally discharged at a time when it was pointing towards the back of her head. The Crown had led evidence by witnesses who had overheard an argument between the accused and the deceased. On one occasion the deceased had said during the course of this argument "I only know you want to kill me for my money" and on another occasion a witness said that the accused, in the course of a quarrel with the deceased in the presence of others, pushed her to the ground for no other reason than that she had not desisted from rubbing the duco of their motor car when he had told her to stop doing so. Whilst on the ground the deceased, according to this witness, had said "I know you want to kill me, why don't you get it over with?" On the first occasion the witness did not hear any reply made by the accused and on the second occasion the witness said that the accused made no reply. 54. Barwick CJ said, at page 337: "It is quite apparent that the nature of the current relationship between the applicant and his wife was relevant to the question to be decided by the jury. Evidence of a close affectionate relationship could properly have been used by the jury to incline against the conclusion, which might otherwise have been drawn from the circumstances, that the applicant killed his wife. Equally, evidence that there had developed a mutual enmity could be used to induce the conclusion that he had killed his wife and that his story of an accidental shooting lacked credibility." 55. Menzies J, with whom McTiernar and Walsh JJ agreed, at p.343 referred to a passage in the judgment of Kennedy J in R v Bond (1906) 2 KB 389 at page 401 with approval: "... The relations of the murdered or injured man to his assailant, so far as they may reasonably be treated as explanatory of the conduct of the accused as charged in the indictment, are properly admitted to proof as integral parts of the history of the alleged crime for which the accused is on his trial." 56. Menzies J said at page 344: "It seems to me that here, as so often happens, an attempt has been made to reduce the law of evidence - which rests fundamentally upon the requirement of relevancy, i.e. having a bearing upon the matter in issue - to a set of artificial rules remote from reality and unsupported by reason. Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust? It seems to me that nothing spoke more eloquently of the bitter relationship between them than that the wife,

in the course of a quarrel, should charge her husband with the desire to kill her. The evidence is admissible not because the wife's statements were causally connected with her death but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of mischance. To shut the jury off from any event throwing light upon a relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and woman who were husband and wife. Accordingly, in my opinion the evidence in question was properly admitted because it was pertinent to the issues which the jury had to decide." 57. Owen J at page 346 said: " ... I have no doubt that evidence of the relationship between the wife and the applicant was relevant in considering whether the former's death was due, as the applicant claimed, to an accidental discharge of the gun or whether, as the Crown alleged, it was due to his deliberate act." 58. Mr Cato suggested that the incident related by Mr Hall and by Mr Cliff Thompson had a bearing on whether or not the accused in this case deliberately killed his de facto wife. 59. In R. v. Iuliano [1971] VicRp 50; (1971) VR 412 the Full Court of the Supreme Court of Victoria (Winneke, CJ; Little and Gowans JJ) said at page 416: "... It is not necessary that any particular incident related in evidence should, regarded singly, and of its own force, establish a relationship of enmity or distrust. It is sufficient if the incident related makes a contribution which is not insignificant or unsubstantial to a climate of antipathy. Of course, if the incident is isolated and at a considerable distance of time before the death, it may afford no evidence at all of relations between the parties at the time of the death which could have any bearing on motive or intention. If it is not too remote, and its existence along with other incidents or circumstances related in evidence tends to establish a climate of the kind referred to, the evidence of the incident is relevant." 60. In R v Mills (1986) 1 Qd.R.77 McPherson J with whom Andrews SPJ agreed said at page 85: "A `relationship' between two persons is ordinarily capable of being established only by evidence of a series of acts between those persons, or at least of some act other than the particular act in issue sought to be proved. Where that act is or forms an element in the offence charged, the existence of a relationship is admissible only if relevant as tending to proof of the act in question". 61. In Maurice Peter Frawley (1993) 69 A Crim R 208, at 219, Gleeson CJ, with whom Carruthers J agreed, referred to this passage from Mills (supra) with approval. At page 220 Gleeson CJ said: "One of the difficulties affecting consideration of relationship evidence is that the concept of relationship is

vague. In a particular case, such as the present, it may be necessary to identify with more precision what is in question. Frequent and serious quarrelling between a couple, of a kind that goes beyond what Menzies J referred to in Wilson as ordinary difficulties and disagreements, may be relevant to whether one intended to kill the other, or to some other issue in a criminal trial". 62. Later His Honour said at pages 222-223: "In my view the preferable approach in a case such as the present is not to consider the matter in terms of generality as to `relationship' but, rather, to consider whether the evidence in question is direct evidence of any fact relevant to a fact in issue." 63. Mr Davies submitted that the evidence of Mr Hall was inadmissible. He pointed out that it was evidence of a single occasion some one or two months prior to death; it was an isolated incident and therefore did not bear upon the true nature of the relationship of the deceased and the accused at the time of death. Alternatively, he submitted that the evidence ought to be excluded in the exercise of my discretion because its prejudicial effect outweighed its probative value. 64. Mr Davies was particularly critical of Mr Hall's evidence. In his evidence-in-chief Mr Hall had said that he had heard screaming coming from Mrs Daniels' home and then saw the deceased run from Mrs Daniels' place to Mr Thompson's place over the road. Later he saw the accused come from the back of Mrs Daniels' house with a black handled knife in his hand. He said that the handle was carried on the inside of the left hand with the blade pointed upwards. He said that he saw the accused's face which looked angry. He saw the accused walk across to Cliff Thompson's place where he had a struggle with Thompson whilst the deceased stood behind Thompson on the front verandah. 65. He was not able to overhear any of the conversation. In cross-examination examination he said that Mr Thompson was pushing the accused away with his hands and the accused was pushing back with both hands and at that time he did not see anything in the accused's hands. In cross-examination it was put to him as follows: (Tr.p151) "And what I would suggest to you, Mr Hall, is that it is fair to say that you didn't see him carrying a knife?-- -Well, I seen something. I - it could've been a knife. I don't know. It was something. You saw something in his?---Hand ---left hand?---Yeah. Okay. Now did you see anything at all in that dead girl's hand?---No." 66. And later in re-examination he was asked this (Tr.p154): "Are you able to say what he had it in his hand?---Well, looked like a knife. When Roderick went across the road and struggled with Cliff Thompson---?---And the dead girl was standing beside - behind Cliff. Did you see where the dead girl went after that?---Yes, she went back to Cherry's place and from that I didn't know. I didn't concentrate on that. 67. And at pages 153 to 154 of the transcript he said this in re-examination: "Are you able to say whether you saw Roderick with anything?---Well, he had something stay in his hands. Are you able to say what he had in his hand?---Well, looked like a knife. 68. Mr Thompson's evidence was quite different. He said that as he was sitting outside of his place on the lawn, he heard noises in the kitchen of his house. He walked in. He stood at the front door of the verandah and a rubbish bin flew out the door and as he was standing there the accused came out of the house, that is to say, out of Thompson's house. He said that he went up to the accused and asked him what he was doing at his place and that he didn't reply. Somebody shouted behind his back that the accused had a knife but he didn't see any knife although he looked at the accused's hands. He grabbed the accused and asked the accused, `what are you doing?' and then the accused shook him off and ran straight across to Cherry Daniels' place on the other side of the road. He said that he did not see the deceased at all and did not talk to her that day. 69. I am unable to see how Mr Thompson's evidence shows anything about a relationship good or otherwise concerning the deceased and the accused. It is not shown that the incident of which he is speaking is the same incident of which Mr Hall was speaking, although it happened on the same day, or that the presence of the accused at Mr Thompson's house had anything to do with the deceased. 70. As to the evidence of Mr Hall, I think that this evidence is far too slender a basis upon which to draw an inference of a relevant bad relationship between the deceased and the accused which throws any light upon the issues in this case. Even assuming what Mr Hall saw in the accused's hand was a knife, there was nothing to suggest that he had the knife in his hand with the purpose of using it or threatening to use it against the deceased. The accused may have had a knife in his hand for a quite innocent purpose bearing in mind his hunting life-style, - but in any event there is nothing to suggest that he had attempted to use the knife or threatened to use the knife on the occasion in question against the deceased. It appears that he may have been angry with the deceased and that there had been something of a row which lead the deceased to run out of the house, and that the accused had gone over to Mr Thompson's house where the deceased had gone, but it appears that he left peacefully after Mr Thompson had pushed him away. I do not think that this single isolated incident is sufficient to throw any relevant light upon the accused's intentions at the time of the deceased's death and accordingly in my view it is inadmissible. 71. I turn now to consider the evidence of Charmaine Ashley, Mrs Cherry Daniels and Mr Tony Wurramara, each of whom gave evidence of conversations that they had with the deceased shortly before her death on the night in question. The Crown seeks to tender this evidence, although it is hearsay, as evidence of the deceased's state of mind. The Crown says that this evidence shows that the deceased was in a state of fear from the accused. 72. There is no doubt that evidence which shows the state of mind of the deceased may be admissible against the accused. Evidence of this kind has been admitted on a number of previous occasions. In Walton v The Queen [1989] HCA 9; (1988-1989) 166 CLR 283, the High Court held that evidence that the deceased had told a number of witnesses that she intended to go to the middle of the town centre on the night in question and there meet the appellant (who was charged with her murder) provided a foundation for the inference that she did go to the town centre and met the appellant there, and that accordingly the evidence was admissible notwithstanding that it was hearsay. Similarly in R v Matthews (1992) 58 SASR 19, the Full Court of the Supreme Court of South Australia held that statements made by the victim (in a case where the accused was convicted of her rape and murder) to other witnesses to the effect that she was in fear of and did not wish to see the appellant were admissible probably as original evidence to prove her state of mind although not to prove the truth of the facts contained in the statements. It was held that the evidence was relevant to the question of whether the deceased consented to intercourse and whether the deceased permitted the deceased into her home and received him in the manner suggested by the accused. 73. Bollen J said at pages 33-34: "The law of evidence is there to ensure that relevant evidence gets before the court. Evidence showing the relationship and the state of it between victim and culprit is relevant in a charge of murder (see also R v Hissey

(1973) 6 SASR 280 at 288-289). Evidence which "sounds" rather like hearsay at first blush may be called to show that relationship. It must not, or often must not, be used for other purposes. As the Solicitor-General said of evidence of statements made by the deceased to others: "The critical thing is how the statement was used." Here evidence of the utterances of the deceased was used to prove fear and unwillingness to meet the appellant. That state of mind at least tendered to negate the truthfulness of the accused's story." 74. Similarly in R v Baker [1989] NZCA 62; (1989) 1 NZLR 738, the Court of Appeal of New Zealand held that statements made by the deceased during a period of up to four weeks before her death including one made on the day of her death which indicated her hostile attitude to the accused, her fear of him, and her physical manifestation of that fear, were admissible in evidence against the accused who was charged with her murder and rape. The accused had on that occasion claimed that a rifle that was fitted with a silencer and found on the floor of the bedroom in which the deceased had been killed was there because the deceased had telephoned the accused the evening before and had asked him to come round in the morning to shoot some stray cats. The accused stated that when he came at about 7am with the rifle, the deceased, who was his wife, requested intercourse and asked to be tied to the bed; but after these events when she had been untied, she picked up the rifle, shot him and then shot herself. Cooke P at page 741, said: "... when a person's state of mind at a given time is in issue his contemporaneous declaration is admissible as evidence, albeit not necessarily conclusive, of that state of mind. This must apply to a person's knowledge, understanding, intention or feelings. With regard to the second of the statements of principle just quoted, there is obviously no difficulty in treating relevance to an issue as a matter of degree. With regard to the first, however, the tests "directly" and "direct and immediate" seem, with great respect, less easy to apply and, if applied literally, might perhaps exclude a good deal of evidence which in common sense and justice most people would think ought to be admitted. Thus in the present case it will be in issue at the trial whether the deceased telephoned her husband and asked him to come round with a firearm, but in the natural and ordinary use of language I have reservations about whether her

expressed fear of him earlier that day and in the proceeding weeks is directly or immediately relevant to that issue. Nevertheless it is of such cogent indirect bearing on that issue that in my opinion it ought clearly to be admitted." 75. Mr Davies on behalf of the accused submitted that the evidence was inadmissible. He submitted it was not relevant to any fact in issue in the trial. He submitted that formal admissions would be made that it was indeed the accused who on the night in question brought about the death of the victim by the use of a knife. Later, formal admissions to this effect were made pursuant to the Criminal Code. Accordingly he submitted that the alleged statements by the deceased did not go to any matter in issue between the Crown and the accused. He pointed out that in Frawley (supra) Gleeson CJ said, at page 220: "If one party to a relationship is accused of murdering the other, admissible evidence of the accused's state of mind may well be relevant. It is less likely that evidence of the victim's state of mind will be relevant, although, as the authorities cited above show, it may be relevant, depending on the issues in the case...." 76. He submitted also that there was no sufficient factual background to judge whether the particular statements made by the deceased truly showed her state of mind or that her state of mind was relevant to any fact in issue in the trial. In further support of this submission, he relied upon certain observations of Gleeson CJ in Frawley (supra) at pages 222 and 223. It was submitted that without knowing what the reason or the background may have been for the deceased to have expressed herself in the way she did, the deceased's statements did not show that she was necessarily in a state of fear. 77. In my view the evidence of these witnesses is admissible. It would be open to the jury to infer from the statements that the deceased was in a state of fear of the accused. That evidence is relevant to rebut any suggestion of an accidental killing; in other words it is relevant to the question of the accused's intent; and it may also be relevant to rebut the defence of provocation. 78. Mr Davies for the accused submitted that even if it were strictly admissible it ought to be rejected in the exercise of my discretion on the basis that its probative value was outweighed by its prejudicial effect. His submission was that the evidence was of trivial weight because the evidence of Charmaine Ashley and Tony Wurramara was unreliable; and he pointed to a number of matters which, I have no doubt, a jury would be justified in taking into account as leading to the conclusion that the evidence of these witnesses ought to be rejected. However in my opinion those matters are entirely jury matters and the question of the probative value of the evidence is not to be determined by reference to such considerations. Except, perhaps, in special categories of cases of which this is not one, a trial judge does not, in my view, have a discretion to reject evidence which is otherwise admissible because of alleged unreliability. If such a general discretion existed, it would be inconsistent with the duty of a trial judge to leave any evidence to the jury capable of supporting a conviction even if the evidence is inherently weak: see Doney v The Queen [1990] HCA 51; (1990-1991) 171 CLR 207. In my opinion there is a distinction to be made between evidence which is probative, that is to say relevant to a fact in issue in the case, and the weight to be given to a particular piece of evidence by a particular witness, based on matters of credit. In none of the authorities which deal with the discretion to exclude evidence because its probative value is small compared with its prejudicial effect is any reference made to the judge being entitled to test the probative weight of the evidence by reference to matters going to the credit of witnesses: see for example, James Hasler (Court of Criminal Appeal Qld) (1985-1986) 21 A Crim R 376 where the cases dealing with the discretion to exclude admissible evidence are reviewed. In my view one has to begin, when examining the question of the probative value of the evidence, by assuming the evidence will be accepted by the jury, or at least is capable of being accepted by the jury, as true and accurate. Approaching the matter in this way, it seems to me that the evidence has considerable probative value which is not outweighed by any prejudicial effect which it may have upon the accused's right to a fair trial. 79. Accordingly, the challenged evidence of Charmaine Ashley, Tony Wurramara and Mrs Cherry Daniels as to conversations they had with the deceased on the night of her death will be admitted. RULING

Ext P7(4) involuntary and inadmissible - excluded. Alternatively exercise discretion if wrong. Rest is voluntary.
So much of Ext P7(3) as commences on page 10.4 is excluded in exercise of discretion.
There are also short passages at pps 5, 6, 7 and 9 of Ext P7(3) which are inadmissible because they are statements made by the prisoner's friend not proven to be statements made by the accused or adopted by him.
I decline to exercise my discretion to exclude any other parts of the record of interview.
The evidence of Mr Hall and Mr Thompson concerning the incident or incidents which occurred on the occasion of the smoking of Old Wilton Huddleston's home are inadmissible.

The challenged evidence of Charmaine Ashley, Mrs Daniels and Tony Wurramara as to conversations they had (or overheard) with the deceased or between the deceased and others on the night of her death are admissible. I decline to exercise my discretion to exclude any part of that evidence.
I have drafted reasons for my rulings which are not yet settled. I consider it undesirable to publish them at this stage. I will publish my reasons at the conclusion of the trial.

R v Nundhirribala [1994] NTSC 94; 120 FLR 125

At a glance

Court

Decision date

Before

Source

Judgment (19 paragraphs)

R v Nundhirribala [1994] NTSC 94; 120 FLR 125 (7 October 1994)

Parties

Cases Cited (10)