R v Weetra [1993] NTSC 103; 93 NTR 8 (7 December 1993)

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COURT IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA MILDREN J CWDS Criminal law and procedure - Evidence - Confessions and admissions - Irregularities in obtaining by police of confessional statements - Observations relating to explanation of "prisoner's friend" role - Ability of accused to understand English - Application of Anunga Rules - Whether incriminating material flowed from irregular interrogation - Discretion of trial judge to exclude statement if unfair to accused. Criminal Code,ss192(1)(4),188(1),(2)(b),(2)(k). Evidence Act,s26L. Jimmy Butler (No 1) (1991-92) 57 A Crim R 451, applied. R v Anunga (1976) 11 ALR 412, applied. Van de Mere v R (1988) 62 ALJR 655, applied. Collins v R [1980] FCA 72; (1980) 31 ALR 257, followed. HRNG DARWIN #DATE 7:12:1993 Counsel for appellant: M Hird Solicitors for appellant: KAALAS Counsel for respondent: I Glascow Solicitors for respondent: DPP (NT) ORDER Orders made JUDGE1 MILDREN J This is an application pursuant to of the for the court to hear and determine, before a jury is empanelled, any question relating to the admissibility of evidence and any question of law affecting the conduct of the trial. The particular question which I have been asked to rule upon is whether certain confessional statements made by the accused should be admitted at his trial. 2. The accused has pleaded not guilty to a count of unlawful assault with intent to have carnal knowledge and a circumstance of aggravation, contrary to ss192(1) and (4) of the Criminal Code, and also to an alternative count, namely that he unlawfully assaulted one Anna Bonson on 27 December 1992 at Barunga and that unlawful assault also involved circumstances of aggravation, contrary to ss188(1) and (2)(b) and (k) of the Code. 3. The background facts which the Crown intends to prove at the trial may be shortly stated. The Crown case is that on 27 December the accused and one Anna Bonson, the alleged victim in this matter, and other persons were drinking in the area of a house belonging to Mr and Mrs Bonson at Barunga. 4. Some time after dark on that day and after the consumption of some beer and wine, Mrs Bonson was conducted to her bed by her husband and perhaps also by another person by the name of Sherman Ashley. Some time later in the evening most of the parties who had been drinking around the area of the house had left. Mr Bonson left for a short time to go and attend to some family business at a nearby house. When he returned he became curious as to the whereabouts of the accused. 5. He went into the house, looked into the bedroom and saw the accused lying on the bed on top of his wife. Even though the bedroom light was not on and the outside light was on, it is alleged that he was able to see that his wife was asleep and he observed what he considered to be motions indicating some sort of sexual contact taking place. 6. He kicked the accused and then took hold of him, dragging him out into the kitchen area where he gave what will be described by witnesses in common parlance as "a bit of a flogging," during which time he noticed that the accused's shorts were down and the accused's penis was in fact erect. 7. The accused then left hurriedly. Mr Bonson then went back into the bedroom. His wife was still asleep and he woke her by kicking her and shaking her. Subsequently the police were called and investigated the matter and the accused was interviewed by police the day after. 8. After his arrest he was informed of his right to have someone present. He selected a prisoner's friend. He was then taken to Katherine police station where he was interviewed on video. The video record of interview indicates that during the interview the accused admitted having had sexual intercourse, including vaginal penetration, with Anna Bonson and that he also admitted that he had not asked her for sex and it is alleged that he said that she was asleep during the course of his having intercourse with her. 9. The accused spoke to police on four occasions. The main attack relates to admissions made in the video recorded record of interview at Katherine Police Station on 28 December 1992 between Detective Senior Constable Thorp and the accused at which a prisoner's friend, Michael Farrell, and also Constable Benjamin Gibson, were present. 10. Mr Hird, who appeared for the accused, challenged the record of interview on the ground that it was involuntary because there was no proof that the accused understood his right of silence and chose to speak in the exercise of his free choice to speak or remain silent: see Collins v R ; at 307 per Brennan J; and R v Lee ; at 149. 11. Alternatively, Mr Hird submitted that the confession ought to be rejected in the exercise of the court's discretion because it would be unfair to the accused to admit it in evidence against him: see Van de Mere v R at 666. 12. I make the following findings of fact. At or about 6 pm on 28 December, Constable Gibson stopped at a bridge across Maranboy Creek and saw the accused sitting on the bridge. He had a conversation with him which he later recorded in his notebook when he went back to the Maranboy Police Station. 13. This conversation was as follows: "GIBSON: Catching any fish? WEETRA: Two big ones there, look. GIBSON: You're Ronald, aren't you? WEETRA: Yes. GIBSON: We might like to talk to you. WEETRA: Yes. GIBSON: About last night, hey? WEETRA: Yes. GIBSON: We'll do that at the station, okay? WEETRA: Okay. GIBSON: Get in that side" (pointing to the vehicle). 14. The accused then got into the vehicle and as they were driving from the creek to the station, Constable Gibson said: "GIBSON: We'll talk to you about last night later. WEETRA: Okay. GIBSON: You understand you're under arrest, okay? WEETRA: Yes. GIBSON: How did you get here? WEETRA: Walked the long way around. GIBSON: Were you coming to the station? WEETRA: Yes. GIBSON: We will go there now but you understand I've arrested you, all right?

WEETRA: Yes." 15. Gibson and the accused arrived at Maranboy Police Station shortly thereafter. 16. Immediately upon arrival, Gibson made notes of this conversation in his notebook. About 10 minutes later, the accused was spoken to by Constable Jenkinson and that conversation was tape recorded and became Exhibit P2. I should note that Exhibit P2, in fact, records two conversations; the first being a conversation which started at 1808 hours and the second, a conversation which started at 1909 hours, both on Monday 28 December. 17. It is not necessary to set out the text of the first of these conversations but I will summarise some of the points. After a perfunctory caution, the accused was asked to read Constable Gibson's notes and to sign them. He appeared to read the notes which he then signed. He was not cautioned that he did not have to sign the notes or what the consequences to him might be if he did sign the notes. 18. I am satisfied on the evidence, and there appears to be little dispute about this, that the accused's ability to read in the English language is minimal and I note that there was no attempt made by the police to read the notes to him. 19. I am not satisfied that the accused signed the notes in the exercise of a free choice to do so or otherwise and I am of the view that his signing of the notes was not voluntary. I therefore rule that the notes cannot be tendered against him at his trial as a document signed by him. 20. Having regard to that finding, it is my view that the first part of the tape recorded conversation between Constable Gibson and the accused ought not to be admitted because it would be unfair to the accused to do so. The reason for this is because the conversation is mainly concerned with his adoption of the notes which, in my view, was not voluntary. I therefore, in the exercise of my discretion, exclude the first part of the conversation between Jenkinson and the accused. 21. The next thing to occur after the first tape recorded conversation, was that the accused was asked by Constable Jenkinson whom he would like to have as his prisoner's friend. The accused nominated one Michael Farrell. Constable Jenkinson could only remember the gist of this conversation which was not recorded in any way. 22. It is clear that no attempt was made by Constable Jenkinson to explain to the accused, who appears to be part-Aboriginal, what the role of a prisoner's friend is. It was submitted that no effective choice can be made by a prisoner unless an accused knows what function the prisoner's friend is to perform. I agree. Unless the accused is made aware, there is a danger that his choice will be an entirely inappropriate one. This may mean that a friend chosen by the accused is unable to perform the role expected of him by the courts: see R v Anunga (1976) 11 ALR 412; Jimmy Butler (No 1) (1991-92) 57 A Crim R 451 at 452-3. This could lead to the conclusion that any confession obtained thereafter was not a voluntary one. 23. In my opinion, it is not enough for a police officer to simply ask: 'Who would you like as your prisoner's friend?' The accused should be told as a minimum that the function of a prisoner's friend is, firstly, to act in an advisory role to the accused and, secondly, to assist him in his understanding of the matters which the police wish to speak to him about. 24. The accused should be told that preferably a prisoner's friend should be someone who is able to speak the same language as he can and someone who is also reasonably fluent in the English language. And the accused should also be informed that the prisoner's friend should be someone that the accused trusts and has confidence in and will feel supported by. 25. The accused should also be told, in my view, that he will be afforded the chance to speak privately to the prisoner's friend if he wishes to do so before any formal record of interview takes place. He should also be told that his choice should be someone who is aware of his rights and of the rights and duties of police in interviewing suspects, that he should be someone independent of the police and someone not likely to be afraid of the police and someone not involved in the investigation either as a suspect or as a witness. 26. Without this minimum information being properly explained in simple language to a suspect, real questions could well arise as to whether or not the friend was truly the accused's choice. None of these matters were done in this case. 27. Of course, a person with all of these attributes may not be willing to act or may not exist. The accused should be told to choose someone who best fits those criteria and in whom he has confidence. If his choice is ultimately an inappropriate one, at least the choice will be the accused's free choice knowing what is expected of the friend. 28. The next thing that occurred was that Constable Jenkinson went to Barunga and located Michael Farrell and brought him back to Maranboy Police Station. According to Constable Jenkinson, the gist of the conversation he had with Farrell was this (Transcript p33 - examination in chief): "Yes, tell us what you said to him?---I would have - well, I said to him that we had Ronald Weetra in custody, and that he'd asked that Michael Farrell - to be his friend, and asked then if he would come in to be - sit with him as a prisoner's friend. That is the conversation you had with him?---That would be the - the general gist of it. What did he say?---He agreed to - to come in and we assured him that we'd take him in and bring him home. Right?---Well, I assured him, I should say." 29. After returning to the police station, Constable Jenkinson had another conversation with the accused and that conversation was also recorded on the tape recording, Exhibit P2. The essence of the conversation was to ask the accused if the person the police had brought to the police station - namely Michael Farrell - was the person he wanted as his friend, whether he wanted anyone else as well and whether in particular he wanted someone like Sammy Bush to be his friend. 30. The accused indicated that he wanted Michael Farrell and he did not want anyone else and that he did not want Sammy Bush or anyone else like him. Constable Jenkinson said that he spoke to the accused again and suggested Sammy Bush because Sammy Bush was an older and more knowledgeable man than Farrell (who was only eighteen years of age) and that he felt that Bush would be a more appropriate choice as a prisoner's friend. But no attempt was made to explain this fully to the accused and, for that matter, no attempt was made to explain to Farrell what his role was until he and the accused arrived at the police station at Katherine where the record of interview was conducted. Had this been fully discussed with both the accused and Farrell at Maranboy, it may be that a more appropriate choice could have been made or perhaps a second friend might have been chosen in addition to Farrell. Jenkinson said that he presumed that this would be attended to by the Katherine police, but by this time, the accused had made his choice, was no longer near any of the people he might have otherwise considered if he had second thoughts, and was hardly likely to be in a position to change his mind. 31. The record of interview commenced at 8.26 pm. So far as explaining to Farrell his role, the extent of it is to be found at page two in the transcript of the record of interview (Exhibit P3): "THORP: Okay, Ronnie, as I explained to you before the tape start - started - WEETRA: Yeah. THORP: Michael is here as a friend, okay, and if there's anything that I should say that you don't understand - WEETRA: Yeah. THORP: Um - you feel free to ask Michael to explain it to you and he may be able to explain it to you better than I have. Okay? And if I happen to ask you anything you don't understand, let me know and I'll ask it in a manner that you may understand. WEETRA: Yeah. THORP: Okay? WEETRA: Yeah. THORP: And Michael, you understand your role here? FARRELL: Yep. THORP: You understand that you're a friend - um - Ronnie's asked you to be here as a friend of his while I interview him? FARRELL: Yeah. THORP: Okay, and your role is to help him if he doesn't understand certain things. FARRELL: Yeah." 32. In my view, this was a totally inadequate explanation and fell far short of the Commissioner's guidelines required to be observed by police officers when explaining to prisoners' friends what is required of them. It is impossible to find on the basis of this evidence that either Farrell or the accused knew what was expected of Farrell. 33. Farrell was called to give evidence by the Crown and this evidence did not assist the Crown in proving that Farrell knew what he was there for. Indeed, Farrell maintained that he did not know why he was there and that he did not even listen to the interview as it proceeded in his presence. It is against this background that the defendant challenges the voluntariness of the confession made in the record of interview. However, that is by no means the total picture. 34. Firstly, there is the evidence of Mr Turner, a probation and parole officer who has had considerable contact with the accused. It is fair to say that his opinion of the accused's ability to converse in oral English is that his English is quite good (Transcript pps14- 15): "How would you rate his oral language and communication skills?---I would consider it above average for the lifestyle he leads in Beswick. Are you comparing him with other Aboriginal persons in that area?---I would compare him with that population sample in Beswick." 35. And then in answer to a question from me (Transcript p15): "What are his oral skills in English compared with the general population?---I would say it's good because Mr Weetra tends to associate with people above his age group,so his skills compared to his own age level would be advanced in that sense. His main contact (sic) are older people. He identifies well with an older age peer group.' You realise I am asking you to speak in terms of the whole of the Territory population?---Mm. Not just - - -?---Yeah, concerning the whole Territory population, like in Beswick it's a fairly sophisticated community and you do have people who are intelligent that runs the community and Mr Weetra does identify himself with those particular members of that and he prefers to associate with people above his age group and his mentor, which he calls his daddy, is actually an educated person." 36. Mr Turner also expressed the opinion that the accused would have understood the words of a caution administered to him in the English language. 37. Secondly, the accused has been interviewed by police on three prior occasions. The first occasion was on 1 June 1986 when the accused was interviewed by Constable Rowe who made notes of this record of interview in her notebook. A copy of those notes were admitted into evidence as Exhibit P4. 38. Although Constable Rowe had little recall other than what was in the notes, the notes themselves indicate that the accused did understand the nature of the caution: "Do you know that you don't have to answer my questions but if you do, I will write the answer down in this notebook and they may be used as evidence in court?---Yes. Can you tell me in your own words what I have just said?---I don't have to answer the questions. What will happen if you do answer them?---What you are writing will go to court to the judge. Can you understand my questions and speak English properly? ---Yes." 39. At about that time, it would appear that the accused was then some fourteen years of age. 40. The second occasion when he was interviewed was by Sergeant Burgoyne on 8 January of 1987. By this time the accused was about fifteen years of age. Sergeant Burgoyne's evidence was that in his opinion, the accused had a very good understanding of English: (Transcript pps 66- 67): "Did he appear to understand your questions throughout the record of interview?---He did. I asked him whether he could understand me. Question 10: Can you understand me okay when I talk to you? He answered: 'Yes.' He appeared to have a very good understanding of the English language. Certainly understanding of English as the average person of English decent." 41. In questions 12 to 17 he was asked by Sergeant Burgoyne (whose notes of the record of interview became Exhibit P5): "Q.12 I want you to understand that you don't have to talk to me at all if you do not want to. Do you understand that? ---Yes.

framed in short sentences and expressed in fairly simple language, he is fully able to comprehend them and respond meaningfully in the English language. As to Anunga guideline No 1, I am satisfied that in all relevant matters which arose during the interview there was the necessary 'complete and mutual understanding' between Nixon and the accused, and an interpreter was not necessary." 46. I would apply that quotation fully to the circumstances of this case. His Honour goes on (at 455) to say this: "But here the accused has, as far as concerns simple concepts expressed in uncomplicated English, as was the case throughout the record of interview, as good a practical understanding of English as the 'average white man of English descent', in terms of Anunga guideline No 1. Bearing in mind his lack of formal education and his level of understanding of English, the manner in which the interview was conducted meant that he was not at a disadvantage in respect of the investigation, in comparison with members of the general Australian community. That is what the Anunga guidelines were designed to achieve, thus overcoming a particular vulnerability of Aboriginals to police interrogation, and in the exercise of their right to silence." 47. In my view that quotation is also apposite to the accused. I note that this particular accused appears to be of part-Aboriginal descent. He gave his date of birth as 30 June 1974. He was apparently born in Darwin and has lived the whole of his life, or nearly the whole of his life, at Barunga in the Northern Territory. He appears to be a person who has been in work, working at Beswick as a BRACS officer, at least in recent times. 48. He appears also to have had some education whilst at Warwick in Queensland, and he claims to have reached the level of education of year 9; but as I have noted before, I do not consider that he is at all competent or fluent in being able to read or write in the English language. 49. Bearing all of those matters in mind, I consider, bearing in mind the opinion of Mr Turner and the opinion of Sergeant Burgoyne, as well as my own observations during the course of watching the video tape played, that the accused's level of English was of a standard similar to that referred to by Kearney J in Butler (No 1), in the passages which I have quoted. 50. Notwithstanding that the prisoner's friend in this particular case played no effective role, other than perhaps to act as a witness to the proceedings and thereby ensure that nothing really untoward happened during the record of interview, I am satisfied on the whole of the evidence, that on the balance of probabilities, the accused did understand his right of silence and that he chose to speak in the exercise of a free choice to speak or to remain silent. 51. I therefore find that his confession in the record of interview is voluntary. 52. As to the question of discretion, I am not satisfied that the ineffectiveness of the prisoner's friend has brought about any unfairness to the accused. There is nothing in the circumstances which causes me to doubt the reliability of the confession. Mr Hird was unable to point to anything else which suggests that it would be unfair to admit the confession. 53. The accused, throughout the record of interview, was able to explain himself clearly. When asked to give an account of what happened on the night in question, he gave this short account (Exhibit P3, p7): "THORP: Okay, well, you tell me what happened last night. WEETRA: Um - I was drunk and I went into Anna's room and Anna was asleep and I climb up on top of him, and Sherman came in the room and he - he went back out and I only did it three time and then Kenny came in and told me to 'get off and don't be stupid', and he - and then he - then me and him fight." 54. When asked about the details of that statement - when police probed further about the various elements that appeared in that statement - the accused was not at a loss in being able to explain himself properly. And in my view, at no time did he appear to be unsure of himself or have difficulty explaining himself or to understand; nor was there any evidence of any misunderstanding between him and the interviewer in any relevant way. 55. I say 'in any relevant way', because there is a possibility of some misunderstanding; at page 4 of the record of interview there is an answer he gives in relation to his preferred language which appears to be self-contradictory; but in my view that is of no significance in the context of the whole of the record of interview. 56. I note on other occasions during the record of interview that not only was he able to understand the interviewer but indeed he was able to anticipate the interviewer. For example, at page 13 of the record of interview he was asked: "THORP: Right, when you say cunt, that's a woman's - WEETRA: Vagina. THORP: Vagina. WEETRA: Yeah." 57. So I note from that, that the accused was able to find the word that Thorp himself appeared to be groping for, for whatever reason. 58. And similarly, at page 5 of the record of interview, the accused was asked: "THORP: But you understand me when I speak to you? WEETRA: Yeah. THORP: Are you - um - drunk now? WEETRA: Nah. THORP: Are you - - - WEETRA: Sober. THORP: You're sober? WEETRA: Yeah." 59. So once again, the accused was able to anticipate the word that Thorp was about to say. 60. There were no other aspects of the record of interview that were at all remarkable. For example, there is nothing in the nature of cross- examination or a failure to follow up possible defences or apparent or possible misunderstandings between the accused and the police during the record of interview in any relevant respect. 61. Perhaps it is indeed fortunate for the police that no occasion arose when the accused wished to speak to Farrell about any matter during the record of interview. Had such an occasion arisen, this may well have resulted in quite a different result. 62. I am satisfied also that the defendant appeared relaxed and confident during the record of interview. I could not, by watching the video tape, detect any sense of his being disadvantaged in any way. I therefore decline to reject the record of interview on discretionary grounds.

R v Weetra [1993] NTSC 103; 93 NTR 8

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Judgment (7 paragraphs)

R v Weetra [1993] NTSC 103; 93 NTR 8 (7 December 1993)

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Cases Cited (5)