R v Yirrawala [2015] NTSC 37

EVIDENCE - Police Administration Act s 143 - No electronic recording of admission - Court's discretion to admit evidence if doing so would not be contrary to the interests of justice - Reliability of police officer's recollection of admission questionable - Discretion not exercised - Evidence not admitted

EVIDENCE - Police Administration Act s 137 - Court must refuse to admit evidence if its probative value is outweighed by the danger of unfair prejudice to the defendant - Not necessary to decide - Discretion to admit evidence not exercised under s 143

EVIDENCE - Evidence (National Uniform Legislation) Act s 90 - Court may refuse to admit evidence if, having regard to the circumstances in which the admission was made, it would be unfair to the defendant - Not necessary to decide - Discretion to admit evidence not exercised under s 143

Evidence (National Uniform Legislation) Act ss 59, 81(1), 85, 137, 138

Police Administration Act ss 137, 140, 142, 143

Plaintiff: Office of the Director of Public Prosecutions

Defendant: North Australian Aboriginal Justice Agency

R v Yirrawala [2015] NTSC 37

[1] Nathan Yirrawala has been charged with causing a bushfire in the area near the Royal Darwin Hospital on 16 May 2014.

[2] Evidence is to be led at the trial that the occupants of a CareFlight helicopter saw someone walking along in the bushland lighting fires and that Mr Yirrawala was taken into custody by police having been stopped by hospital security and identified by the occupants of the helicopter as the man they saw lighting the fires. A brief summary of that evidence follows.

Marius Goosen: Every 15 to 20 paces he would bend down and when he got back up more smoke would appear. They saw hospital security go up to that person and talk to him. Then Ben Inglis (helicopter crewman) phoned hospital security and told them that the man they were talking to was the one lighting the fires. (The person was wearing a white shirt and white cap on backwards.)

Dean Blackman (pilot): The man lit a fire. It looked like he used an ignition device like matches. Then he would gather grass like a torch walk some distance then light another fire. Ben (Inglis) contacted hospital security. Blackman saw hospital security apprehend the man that had been lighting the fires. They maintained eye contact on him and didn't lose sight of him. (The person was wearing a light shirt with a "motive" on the front, baseball cap, shorts and a backpack - also light coloured earphones.)

Ben Inglis (helicopter crew): He tells much the same story but says the man was wearing a black shirt. He took video footage and some stills of what occurred.

Calvin Jones (hospital security): He received a call from the helicopter pilot saying he had seen an indigenous man lighting fires near the helipad, walking towards the hospital behind the doctors' houses. The pilot described the man as wearing white shirt, carrying a backpack with a white hat on. He and his partner saw a male matching the description walking towards them. They were still in contact with the pilot who said they had the right guy. They walked him over to the covered area near Pathology and waited for police to arrive. The police officers took the man away in the van.

[3] It is not disputed that the defendant was arrested and taken into protective custody that day at the back of the hospital after being pointed out to police by hospital security. It is common ground that he was intoxicated - sufficiently so to be taken into protective custody - although the extent of his intoxication may be in issue.

[4] The defendant was arrested on 26 May 2014, handcuffed, and told he was under arrest in relation to starting bushfires at the Royal Darwin Hospital. It is alleged by the Crown that on being told this, the defendant said, "Yeah but that was last week. I was real drunk." (This evidence comes from a statement made by one of the arresting officers, Sgt Andreou.) He was arrested at around 1.45 pm. At 5.45 pm, he was interviewed and said he had no comment to make in relation to the allegations that he had lit the fires. He also said that he had drunk a bottle of chardonnay that morning.

[5] The Crown wants to adduce evidence from the arresting officer, Sgt Andreou about what the defendant said on being arrested. The defence objects to this evidence being adduced.

Sections 59 & 81(1)

[6] The first basis of the objection is that the statement is hearsay and so prima facie inadmissible under s 59 of the Evidence (National Uniform Legislation) Act ('UEA') unless one of the exceptions to the hearsay rule applies. The Crown asserts that the statement is admissible as an admission by the defendant that he lit the fires "last week" and that (by way of explanation/partial excuse) he was very drunk at the time.

[7] In written submissions, defence counsel submitted that the statement, "Yeah, but that was last week. I was real drunk," could equally be one of denial as of admission: that Mr Yirrawala is as likely to have meant, "I was so drunk last week, I couldn't have lit those fires," as, "I was drunk last week and that is why I lit those fires."

[8] I do not agree that both interpretations of what Mr Yirrawala is said to have responded are equally open. I think it is fairly clear that if he said those words, he was making an admission and (partial) excuse. More importantly, any question of interpretation would, in my view, be a matter for the jury. The words are capable of being construed as an admission and so fall within the exception to the hearsay rule in UEA s 81(1).

[9] Defence counsel submits that, if the evidence would be admissible as an admission, it should nevertheless be excluded under UEA ss 85, 138, 90 and/or 137.

[10] Section 85 applies to evidence sought to be led in a criminal proceeding of an admission made by a defendant to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence. Subsection 85(2) provides that evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.

[11] Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject.[1] (Further matters must be taken into account where the admission was made in response to questioning, which is not the case here.)

[12] Defence counsel submits that the following conditions or characteristics of Mr Yirrawala are such that I cannot be satisfied that the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.

• (a) The defendant is an Aboriginal male and Sgt Andreou and Sgt Dudley were both uniformed police officers. I do not see how this can be said to adversely affect the truth of the admission in any way. It is, in my view, a circumstance which is most unlikely to adversely affect the truth of the admission. A person is unlikely to spontaneously make an untruthful admission of having committed an offence to a uniformed police officer.

• (b) English is not the first language of the defendant. Again, I do not see how this can be said to adversely affect the truth of the alleged admission (as distinct from its possible comprehensibility) in any way.

• (c) The defendant had drunk a bottle of chardonnay that morning. Again, I do not see how this can be said to adversely affect the truth of the alleged admission in any way. It might have a tendency to make the defendant less guarded and more likely to make a true admission which, on sober reflection, he regretted making, but I do not see any logical reason why it would adversely affect the truth of what the defendant might, perhaps unwisely, have admitted.

• (d) The admission was not preceded by a caution. This too, it seems to me, is a circumstance which is unlikely to adversely affect the truth of the admission.

• (e) The arrest and admission were not electronically recorded, in spite of the fact that the police officers were on "a specific mission" to arrest the accused. Once more, this seems to me to be completely irrelevant to the question posed by s 85(2). It is not a circumstance which is likely to adversely affect the truth of the admission. On what logical basis could it be suggested that a person in Mr Yirrawala's circumstances would be more likely to make a true admission if he was being recorded and a false one if he was not?

[13] In my view, if the evidence of Sgt Andreou is accepted, the circumstances in which the admission was made are such as to make it unlikely that the truth of the admission was adversely affected. Accordingly, s 85(2) is no bar to the admission of his evidence of the admission.

[14] Defence counsel also submits that the evidence should be excluded under UEA s 138. Section 138 provides (inter alia) that evidence that was obtained improperly or in contravention of an Australian law is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

[15] In my view this section simply does not apply. The evidence sought to be adduced is of something said spontaneously by the accused on being told he was under arrest in relation to starting bushfires at the Royal Darwin Hospital. Defence counsel has pointed to no illegality and no impropriety in the conduct of the police officers in question. They did not seek the admission by asking the accused any questions. The admission was not recorded, but there is no rule of conduct that provides that all interactions between police and a suspect must be recorded in case the suspect makes a

spontaneous admission.[2] (Maybe that would be wise and maybe there will one day be such a rule of conduct, but there is not one now and it is neither illegal or improper to arrest someone without recording the event.)

[16] Defence counsel made submissions based on s 142 of the Police Administration Act under the general rubric of the submission that the evidence should be excluded under s 138. However, for the reasons set out in the previous paragraph, a failure to record a confession does not necessarily amount to impropriety or illegality and it is more appropriate to consider the issues which arise under the relevant provisions of the Police Administration Act separately.

Police Administration Act

[17] Section 140 of the Police Administration Act ('PAA') provides that before any questioning or investigation under s 137(2) commences, the investigating member must inform the person in custody that he does not have to say anything but that anything he does say or do may be given in evidence; and that he may communicate with or attempt to communicate with a friend or relative to inform the friend or relative of his whereabouts. (Further incidental provisions follow.) That warning must be electronically recorded if practicable.[3]

[18] PAA s 142 provides (relevantly) that (subject to s 143) evidence of a confession or admission made to a member of the Police Force by a person suspected of having committed a relevant offence is not admissible as part of the prosecution case in proceedings for a relevant offence unless:

• (a) where the confession or admission was made before the commencement of questioning, the substance of the confession or admission was confirmed by the person and the confirmation was electronically recorded; or
• (b) where the confession or admission was made during questioning, the questioning and anything said by the person was electronically recorded,

and the electronic recording is available to be tendered in evidence.

[19] Section 143 provides (relevantly) that a court may admit such evidence even if those requirements have not been complied with if, having regard to the nature of and the reasons for the non-compliance, and any other relevant matters, the court is satisfied that, in the circumstances of the case, admission of the evidence would not be contrary to the interests of justice.

[20] Defence counsel, in written submissions, refers to the admission as having been obtained "in contravention of section 142". That is not an accurate characterisation of what occurred. Certainly (subject to the exercise of a discretion in the court to admit the evidence under s 143) the criteria for admissibility of the confession evidence under s 142 have not been met. However, there is no suggestion that this is as a result of a "contravention" of the provisions of the Act by the police officers in question.

[21] The admission by Mr Yirrawala was not electronically recorded. Why? It was because the police officers did not question him or otherwise seek the admission in a formal interview in the presence of the appropriate recording equipment. According to Sgt Andreou, he blurted it out on being informed of the reason for his arrest. They could hardly force him not to talk to them.

[22] The admission was not subsequently confirmed and that confirmation electronically recorded. Why? It was not through any neglect or contravention of the Act by the police officers, but because, when he was subsequently warned pursuant to s 140[4] and asked to participate in an electronically recorded interview, Mr Yirrawala exercised his right to silence.

[23] The question for me to answer is whether, having regard to the nature of and the reasons for the non-compliance or insufficiency of evidence and any other relevant matters, I am satisfied that, in the circumstances of the case, admission of the evidence would not be contrary to the interests of justice.

[24] The nature of and reasons for the non-compliance with the conditions for admissibility under s 142 have been set out above. Put simply, the police were not recording the arrest and there was no requirement for them to do so; they did not question Mr Yirrawala or otherwise seek any admissions before administering the caution, he simply blurted it out; and when police did caution him, and recorded that caution, Mr Yirrawala did not confirm what he had said but exercised his right to make no comment. It is true that police could have put to him what he had said to them earlier and asked him to confirm it, but, had they done so, they might legitimately have been criticised for continuing to question an Aboriginal suspect, with limited English, who had clearly indicated a desire not to answer any questions or speak about the matter further. Nothing about these circumstances renders admission of the evidence of the "confession" contrary to the interests of justice.

[25] Defence counsel has also raised doubts about the reliability of the evidence sought to be led - not the reliability of the alleged admission (assuming it to have been in the terms it is anticipated Sgt Andreou will give evidence about) but the reliability of the evidence to be given by the police witnesses.

[26] First, it is pointed out that neither police officer took verbatim notes at the scene after Mr Yirrawala made the utterance in question. Apparently the Crown provided the defence with some notes a day after the committal advising that these had been taken by Sgt Andreou (on a date unknown). However, at the committal Sgt Andreou said he did not take any notes, but that the other officer present (Sgt Dudley) had taken notes. In his statement provided to police, Sgt Dudley does not mention that he made notes and, more importantly, does not mention that Mr Yirrawala made any statement as he was arrested.

[27] The note reads: "whilst being searched stated that he was drunk when he lit the fires and he knew the name of the PO that apprehended him". This does not purport to be a verbatim report of the words uttered by Mr Yirrawala, but a summary of what the police officer understood him to mean. Moreover, it contains a detail not mentioned in Sgt Andreou's statement - namely that Mr Yirrawala "knew the PO that apprehended him".

[28] The evidence of Sgt Andreou about what Mr Yirrawala said is reliant on his memory alone. Given that Mr Yirrawala is not a native English speaker, and there is at least a prospect that different meanings could be attached to the words spoken by him, it does seem to me that it would be unfair to allow Sgt Andreou's evidence of what he said to go before the jury. If the words had been recorded verbatim in a note made at the time it would be different. To my mind it would then be a matter for the jury to determine (if they could) whether the words were ambiguous and what Mr Yirrawala intended to convey by them. However, in the absence of such a verbatim record, it seems to me that it would not be fair to put before them what may only be Sgt Andreou's understanding of what Mr Yirrawala intended to convey, especially when the note casts some doubt on the accuracy and/or completeness of his recollection of the precise words used. For these reasons I am not satisfied that admission of the evidence would not be contrary to the interests of justice and I therefore decline to exercise the discretion under PAA s 143 to admit the evidence.

Section 137

[29] As I am declining to admit the evidence, it is not necessary for me to go on to consider the other bases put by defence counsel for exclusion of the evidence. Had it been necessary for me to decide, I would have held that the evidence should be excluded under UEA s 137 for essentially the same reasons that I decline to exercise a discretion to admit the evidence under PAA s 143.

[30] Section 137 provides that, in a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. I am of the view that the probative value of the evidence is relatively slight given that the exact words spoken by Mr Yirrawala have not been recorded in a contemporaneous note and their recall depends upon Sgt Andreou's memory and, perhaps, upon his interpretation of what Mr Yirrawala said. For precisely the same reason, there is a real danger of prejudice to the defence if Sgt Andreou's memory is faulty or his interpretation of what was said inaccurate.

Section 90

[31] Defence counsel also argued that the evidence should be excluded under UEA s 90. That section provides (relevantly) that, in a criminal proceeding, the court may refuse to admit evidence of an admission if the evidence is adduced by the prosecution and, having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence. Had it been necessary for me to decide, I would not have excluded the evidence under this section. For the reasons outlined above in the discussion of the applicability of s 85, I do not think that there is anything about the circumstances in which the alleged admission was made that would render it unfair to admit the evidence. It is the lack of a contemporaneous note of the verbatim utterance, the potential ambiguity in what Mr Yirrawala may have said, and the fact that its recall is subject to potential unreliability that renders it unfair.

[32] The Crown had intended to adduce evidence from the hospital security officer, Calvin Jones, that he identified Mr Yirrawala from pictures in a photo board.

[33] The defence objected to this evidence on the ground that it was not relevant to any issue in the proceeding. (Defence counsel also pointed to some alleged irregularities in the photo board evidence and submitted that, if prima facie admissible, it should be excluded under s 137.)

[34] At the hearing, the Crown conceded (in my view properly) that the evidence was not relevant to any issue in the proceeding. Defence counsel advised it was not disputed that the defendant was the man arrested and taken into protective custody that day at the back of the hospital after being pointed out to police by hospital security. That fact not being in issue, there is no need for Mr Jones to identify him as the man he stopped and handed over to police.

[2] There are relevant provisions in the Police General Orders requiring police officers to invite an accused to repeat an admission which was spontaneously made, and to record that. As defence counsel pointed out, that was not done in this case. However, although that may be relevant to the question of whether the Court should exercise its discretion under s 143 of the Police Administration Act to admit evidence rendered prima facie inadmissible by s 142, it does not mean that there is any impropriety surrounding the making of a spontaneous admission by an accused, or the hearing of it by the police.

[3] Police Administration Act s 141

[4] In written submissions, defence counsel said: "It is unclear whether a section 140 caution ever took place. Mr Yirrawala takes part in a record of interview but when cautioned, exercises his right to silence." The "caution" referred to is the s 140 caution.