Aboriginal Affairs Planning Authority Act 1972 (WA), s 49

Butler (No 1) v The Queen (1991) 57 A Crim R 451

Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1

Condren v The Queen (1987) 28 A Crim R 261

Foster v The Queen [1993] HCA 80; (1993) 113 ALR 1

R v Weetra (1993) 93 NTR 8

Thompson [2000] WASCA 186; (2000) 113 A Crim R 295

Thompson v The Queen [1999] HCA 43; (1999) 165 ALR 219

Van Der Meer v The Queen [1988] HCA 56; (1988) 82 ALR 10

1 STEYTLER J: I have had the advantage of reading the judgment to be delivered by Roberts-Smith J. That judgment expresses my own reasons for joining in the decision of the Court. There is nothing I wish to add.

2 TEMPLEMAN J: When this appeal came on for hearing, I joined in the Court's decision to accept the Crown's concession that the appellant's conviction should be quashed and a retrial ordered.

3 I have had the advantage of reading in draft the reasons to be published by Roberts-Smith J for concluding that an error of law was made at the appellant's trial and that there would be a substantial miscarriage of justice if the conviction was to stand.

4 I agree with those reasons. There is nothing I wish to add.

5 ROBERTS-SMITH J: On 19 June 2002 in the District Court at Kununurra, the appellant was convicted after trial of one count of sexual penetration without consent.

6 By notice dated 10 July 2002, he appealed against that conviction on four grounds, namely that:

"1. The learned Trial Judge erred in law in admitting into evidence a video record of interview made by the Applicant on 9 June 2000, on the grounds that the same was voluntary (sic)

2. Alternatively to Ground 1, the learned trial Judge erred in the exercise of his discretion in admitting into evidence a video record of interview made by the Applicant on 9 June, 2000.

3. The learned Trial Judge erred in law in admitting into evidence a record of interview made by the Applicant on 9 June 2000, without having any regard to the requirements of s49 of the Aboriginal Affairs Planning Authority Act 1972 (WA) (sic)

4. Alternatively, by reason of the cumulative effect of the matters set out in the grounds above, the conviction is unsafe and unsatisfactory."

7 When the matter came on for hearing in this Court on 10 October 2002, the appellant applied for leave to amend his grounds of appeal in terms of a minute filed on 8 October. That leave was granted.

8 At trial the Crown had sought to adduce in evidence two video records of interview ("VROI") made by the police with the appellant on 8 and 9 June 2000 respectively. The learned trial Judge held the first was inadmissible, but that the second was admissible and he declined to reject it in the exercise of his discretion.

9 The amended notice of appeal contained nine grounds. Ground 1 asserted the learned trial Judge erred in law in admitting the second VROI in that there was a failure to comply with the requirements of s 49 of the Aboriginal Affairs Planning Authority Act 1972 ("the Act") in that he failed to carry out any examination of the appellant to determine whether or not he lacked the necessary capacity or understanding. Ground 2 was expressed to be further and in the alternative to ground 1 and asserted his Honour erred in law in failing to deal in his reasons with the statutory criteria specified in s 49 of the Act. By ground 3 it was asserted that his failure to give reasons in relation to s 49 constituted a fundamental flaw in the proceedings such that the conviction should be quashed. Ground 4 challenged his Honour's finding that the second VROI was voluntary. Ground 5 claimed the admission into evidence of the second VROI was a miscarriage of the exercise of judicial discretion. By ground 6 it was contended the learned trial Judge erred in failing to give what was described as a "Mildren direction" prior to the Crown commencing to lead evidence, or in his directions to the jury. (This was a reference to the suggested "Directions to Jury Concerning Aboriginal Witnesses" set out as an appendix to an article by Mildren J "Redressing the Imbalance Against Aboriginals in the Criminal Justice System" (1997) Crim Law Journal 7 at 21). His Honour's direction to the jury as to recent complaint was challenged by ground 7. His redirection to the jury following a note from the foreman indicating the jury had exhausted their arguments yet remained divided, was claimed by ground 8 to have been an error in that by it, he applied:

"... undue pressure to reach a verdict and thereby infringe(d) the principle of free deliberation."

10 Ground 9 was a rolled up ground which claimed the conviction was unsafe and unsatisfactory by reason of the cumulative effect of the matters raised in the first eight grounds.

11 In the respondent's outline of submissions filed on 8 October 2002, the Crown conceded that ground 1 had been made out in that the provisions of s 49 of the Act had not been complied with and as a result, it was not possible to be satisfied there was no miscarriage of justice. The Crown further conceded that in those circumstances the conviction should be quashed and a retrial ordered.

12 Notwithstanding such a concession, it is still the responsibility of an appeal court to itself determine whether or not there has been an error of law and a substantial miscarriage of justice. The court was so satisfied and accordingly upheld the appeal on ground 1 and ordered a retrial limited to the charge of sexual penetration.

13 The following are my brief reasons for joining in the making of that order.

14 The appellant appeared before the learned trial Judge sitting without a jury in the District Court in Kununurra on 17 June 2002 on an indictment charging that on or about 7 June 2000 at Kununurra he sexually penetrated the complainant without her consent and then did bodily harm to her contrary to s 326 of the Criminal Code. Various procedural matters were attended to, including the return of a subpoena and arrangements for taking evidence of witnesses by video-link. Counsel advised that there was to be a challenge to the evidence of the second VROI. In response to an enquiry by his Honour, counsel for the appellant explained the basis of the objections:

"... the bases of the objections are two-fold. The first is it will be submitted that the records of interview weren't voluntary in a legal sense and accordingly ought to be excluded as a matter of law. Alternatively it will be submitted that it would be unfair to the accused to admit both records of interview into evidence ..."

This was not a sufficient exposure of the grounds upon which objection to the evidence was being made; specific particularity is required (see Frijaf v The Queen [1982] WAR 128 per Wallace J at 145 and Webb v The Queen (1994) 13 WAR 257 per Ipp J at 262).

15 Then, after some discussion about arrangements for the empanelling of the jury, his Honour made an enquiry specifically about s 49 of the Act. There was the following exchange (AB 39):

"O'SULLIVAN DCJ: Are there any matters to do with section 49 of the Aboriginal Affairs Planning Authority Act that I need to be aware of before we proceed with the empanelling?

COLLINS, MR: There's nothing in particular, your Honour. Of course it's your Honour's task to decide whether 49 has been complied with but I don't foresee anything over and above the issues that will be raised during the course of the voir dire by me which would especially impact upon the task that your Honour has to undertake pursuant to section 49."

16 The jury was then empanelled and released until the conclusion of legal argument. The voir dire was then conducted. The Crown called only the investigating officer, Detective Senior Constable Balfour, who gave evidence of both VROI. A transcript of those interviews was available to his Honour.

17 The appellant gave no evidence and called no witnesses on the voir dire. His Honour expressed some hesitation about that (AB 84):

"O'SULLIVAN DCJ: I'm hesitating, Mr Collins, because in the end - well, it's up there in lights - you are no doubt going to be making a submission based upon your client's lack of understanding.

COLLINS, MR: That's correct, your Honour.

O'SULLIVAN DCJ: But you are not asking me to hear him.

COLLINS, MR: No."

18 Counsel then made the submissions on the voir dire. These were all directed to the issues of voluntariness and discretion as had been foreshadowed. No reference was made to s 49 of the Act. The submissions advanced on behalf of the appellant were lengthy and detailed. They were put in the context of authorities of general application, such as R v Swaffield [1998] HCA 1; (1998) 192 CLR 159, McPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512, Duke v The Queen [1989] HCA 1; (1989) 180 CLR 508, R v Lee [1950] HCA 25; (1950) 82 CLR 133 and others relating to police interviews with Aboriginal suspects, including Collins [1980] FCA 72; (1980) 31 ALR 257 and Jabarula (1988) 11 A Crim R 131.

19 His Honour's reasons for decision on the voir dire commenced with an outline of the factual circumstances. In substance they were that on 7 June 2000, the complainant had left the Kununurra Hotel and was walking home late at night. It was alleged that in the course of so doing, she was accosted by the accused, assaulted, knocked to the ground and sexually penetrated without her consent. This was said to have occurred in the early hours of the morning. Shortly before 4 pm on the same day, police officers interviewed the accused. That interview lasted for some 30 minutes. After asking and receiving answers from the accused to a number of questions, the investigating officers indicated to him that they were going to make further enquiries. The interview was terminated and the accused left the police station.

20 On the morning of 9 June 2000 the accused returned to the police station of his own volition and asked to speak to Detective Balfour who was conducting the enquiry. The second VROI was then conducted.

21 The first interview was conducted in the presence of a Mr Neville Leonard who was nominated by the appellant to accompany him for the purpose.

22 Having referred to the question whether the accused was in custody when the first VROI was conducted, his Honour noted that the detective had proceeded to caution the appellant, and continued (AB 136):

"Unfortunately, although he made a significant effort in that regard, I am not at all sure that he succeeded in bringing the accused to an understanding that he was able to speak or to remain silent of his own free will and in those circumstances I have come to the conclusion that the crown has not persuaded me that the will of the accused was not overborne at the time of the first interview.

I have no doubt that the detective did not seek to place any undue or improper pressure upon the accused but the facts are that the accused is a young, unsophisticated male of Aboriginal descent. He was born on 11 November 1980 and was only educated to year 8. He was asked by the detective to accompany him to the police station. There is no evidence on the video that he understood that he was free to leave the station or to stay as he wished.

The detective made no less than four attempts to explain to the accused in the course of the interview that he was not required to answer his questions and it seems to me that the accused indicated by his answers more often than not that he did not understand that concept. Only on one occasion, the last, did he indicate that he did comprehend the position and that was simply by the giving of an affirmative answer to a question along the lines, 'Do you understand your right to remain silent?'

The video shows that after enlisting the help of Mr Leonard the detective then asked Mr Leonard if the accused understood his rights and Mr Leonard's response was as follows, 'I don't know. It's hard to say.' Mr Leonard then turned to the accused and said to him, 'You can either say no to this, right, say no. You can stay silent or else you can say yes to go ahead with this. All right? You understand that better? To go ahead and answer all the questions. You understand what I'm getting at now?' The accused's response to that was simply to say, 'Mm.' Nevertheless questioning then proceeded.

In my view in these circumstances it has not been established that the accused's answers at this first interview were given by him of his own free will and I have therefore concluded that evidence of those answers should not be admitted." (My emphasis).

23 His Honour then turned to the second VROI. He noted that took place on 9 June, the day after the first interview, that the accused attended the police station uninvited and there was no evidence of any influence or pressure having been brought to bear upon him by the police. He had come to the police station with his parents and asked to speak to the detective. It was apparent from the video itself, that the accused had indicated that he wanted to talk to the police on his own and not in the presence of anyone else. However, his Honour also observed that once again it showed that the detective had some difficulty in giving a caution to the appellant and bringing him to an understanding of it. Nonetheless, his Honour considered there was a fundamental difference between that situation and what had occurred at the first interview because on the second occasion the appellant had attended the police station of his own volition and made it clear that he wished to tell the police in his own words what had happened. He was satisfied that the appellant had done so of his own free will and in his view, the efforts made by the detective to explain to the appellant his right to remain silent only went to establish more firmly that there were no external factors operating to bring impermissible pressure to bear upon him.

24 His Honour then dealt with the question of discretionary exclusion of the second VROI, principally on the basis of a submission that the appellant had suffered a significant forensic disadvantage in that he made admissions in the course of it which he might not have made had he truly understood his right to remain silent.

25 The learned trial Judge referred to Duke (supra) at 513 and to the principles expounded in R v Anunga (1976) 11 ALR 412. He concluded there was no impropriety in the way in which the appellant was treated by the police giving rise to any unfair effect upon him, and concluded (AB 139):

"I am satisfied that the accused was quite determined to say what he did say to the police and to do so whether or not he had an understanding of his right to remain silent and in the absence of any so-called prisoner's friend.

I am not satisfied that any other or better understanding by the accused of his rights would have dissuaded him from his course. It follows that it in (sic) my opinion the statements made by the accused in the course of the second interview should be admitted."

26 There was no reference to s 49 of the Act.

27 Section 49 of the Act provides:

(1) In any proceedings in respect of an offence which is punishable in the first instance by a term of imprisonment for a period of 6 months or more the court hearing the charge shall refuse to accept or admit a plea of guilt at trial or an admission of guilt or confession before trial in any case where the court is satisfied upon examination of the accused person that he is a person of Aboriginal descent who from want of comprehension of the nature of the circumstances alleged, or of the proceedings, is or was not capable of understanding that plea of guilt or that admission of guilt or confession.

(2) The provisions of subsection (1) are in addition to, and not in derogation of, any rule of law or practice relating to the admissibility of pleas of guilt or admissions of guilt or confessions."

28 It is apparent from its terms that the section applies not only to a plea of guilty made to a court, but also in respect of an admission of guilt or confession made before trial (per Malcolm CJ in Webb v The Queen, supra at 259).

29 The performance of the duty imposed on a trial Judge under s 49 of the Act is imperative (Webb v The Queen (supra) per Malcolm CJ at 259 and Smith v Greave [1974] WAR 193 per Burt J at 195). The section requires an examination of an accused to be carried out where, in the circumstances, it reasonably appears (or there exists any reason for supposing that it might be the case) that the accused person may lack relevant comprehension (Green v The Queen [2001] WASCA 162; (2001) 24 WAR 192).

30 As Malcolm CJ and Wallwork J pointed out in Green v The Queen at [32] and [67] respectively, where no voir dire has been conducted in which the accused is examined and cross-examined by counsel for the purpose of enabling the court to make the necessary determination under s 49, then it is necessary for the trial Judge to personally do so. Neither course was taken in the present case. The trial Judge is obliged by s 49 to have regard, not only to the content of the interview or statements constituting the admissions, but to the accused's demeanour whilst testifying on the voir dire or otherwise being examined in the court, to determine whether or not he was capable of comprehending the circumstances under which he had foregone his right to remain silent and under which he had confessed and whether he was a person capable of understanding the confession that he had made (see Ipp J in Webb (supra) at 267).

31 It was expressly conceded by counsel for the Crown on this appeal that the circumstances in this case sufficiently indicated that it was possible that the appellant, being a person of Aboriginal descent (as his Honour found) lacked comprehension of the nature of the circumstances alleged, or of the proceedings, so that he was not capable of understanding his admission of guilt and an examination of him was therefore required for the purposes of s 49 of the Act. The fact that the appellant did not give evidence on the voir dire (which in any event did not concern the question whether he lacked comprehension of the nature of the circumstances alleged so that he was not capable of understanding his admission of guilt) and that the learned trial Judge did not otherwise conduct a personal examination of him to determine whether he lacked the relevant comprehension, meant the provisions of s 49 were not complied with.

32 In Webb v The Queen, supra, a voir dire was held for the purpose of the determination of an objection to the admission on confessional statements. The objection sought exclusion of the confession of grounds of both voluntariness and discretion, but in addition, counsel for that appellant had also specifically raised the issue of s 49 of the Act. At the conclusion of argument the learned Commissioner simply ruled the confessional evidence admissible, but gave no reasons. That failure was held to constitute an error of law and the conviction was quashed. In the course of his reasons, Ipp J pointed out (supra 265) that as the appellant was an Aborigine, s 49 of the Act obliged the learned Commissioner, after an examination of him, to determine whether he was capable of understanding the confession.

33 It is to be noted that the lack of capacity to understand the admission of guilt or confession of which the section speaks, is a lack of capacity flowing from want of comprehension of the nature of the circumstances alleged, or of the proceedings. In the instant case the relevant aspect was the nature of the circumstances alleged. In other words, before the second VROI could be admitted into evidence, the learned trial Judge was obliged by s 49 to conduct an examination of the appellant to determine whether or not he was satisfied that the appellant lacked the capacity to understand the confession due to a want of comprehension of the nature of the circumstances alleged. No such examination was conducted and there was accordingly a failure to comply with s 49 of the Act.

34 In Webb, Ipp J saw the relevant capacity of that appellant to comprehend as closely related to the reliability or accuracy of his answers (supra 265). His Honour then referred to the "Anunga Rules" (R v Anunga (1976) 11 ALR 412) holding that although the Anunga Rules are not law in Western Australia, in appropriate circumstances, they give a very good indication of what ordinarily would be regarded as a fair interrogation. I observe that Seaman J agreed with the reasons of Ipp J, and Malcolm CJ expressed a similar conclusion on the application of the Anunga Rules (Webb at 259). The aspect adverted to by Ipp J touched on an issue going well beyond voluntariness and the understanding of the caution and one going to the very essence of the integrity of the confession, namely as to the reliability and accuracy of the content of it. His Honour referred to the remarks of Forster J in Anunga at 414 concerning language and cultural difficulties which often arise with Aboriginal persons, including cultural considerations going to such things as gratuitous acquiescence, suggestibility and a lack of conceptual comprehension. Such considerations as these were pertinent to the determination the learned trial Judge was required to make under s 49 but were not canvassed in that way (if at all) in his Honour's reasons for decision on the issues of voluntariness and discretion.

35 In Webb, Ipp J further elaborated on the nature of the relevant understanding at 267:

"... his Honour was obliged under s 49, to have regard not only to the conversations but to the appellant's demeanour, while testifying in the voir dire, to determine whether the appellant was capable of comprehending the circumstances under which he had forgone his right to remain silent, and under which he had confessed, and, whether he was a person capable of understanding the confession that he had made."

36 In the present case there was no consideration of the question whether the appellant was capable of "comprehending the circumstances under which he had forgone his right to remain silent", nor those circumstances "under which he had confessed" nor whether he was "a person capable of understanding the confession that he had made." It is most unfortunate that counsel for the appellant at the trial did not raise the matter again after the ruling on the voir dire, particularly as the learned trial Judge had expressly queried at the outset whether s 49 of the Act was an issue.

37 Given the findings of the learned trial Judge that the appellant was a young, unsophisticated male of Aboriginal descent, educated only to year 8, that by his answers the appellant indicated "more often than not" that he did not understand the concept that he was not required to answer the investigating officer's questions" the appellant was entitled, as a matter of statute law, to scrutiny of the admissions made in the second VROI, under s 49 of the Act (see Rowland and Owen JJ in R v Williams (1992) 8 WAR 265, 277). That was an obligation which rested upon the trial Judge and the failure of his counsel to raise it at that point, affords no answer for not complying with it.

38 But as Malcolm CJ (with whom Wallwork J agreed) pointed out in Green v The Queen, supra at 199, non-compliance with the requirements of s 49 of the Act will not necessarily result in the quashing of a conviction. The failure must be one which results in a miscarriage of justice (s 689(1) of the Criminal Code). Whether a failure to comply with s 49 has resulted in a miscarriage of justice will obviously depend upon the circumstances of the particular case, including the nature of the failure in the context in which it has occurred.

39 Here, in addition to the matters brought out before the learned trial Judge on the voir dire and his own findings which clearly conveyed some concern about the appellant's capacity to understand, the transcript of the second VROI itself indicates potential problems of communication. Whether they were real or not is impossible to say, because they were never subject to the sort of scrutiny required by s 49.

40 Furthermore, at an early stage in the interview, when asked pro forma questions about whether he was comfortable, or feeling ill, the appellant answered in the affirmative to the latter and when that was pursued by the police officer, he said it was "worrying to his head" which the police officer took to mean "nervous". Asked if there was anything else wrong with him, like flu or headache, the appellant said he had a sore throat, "... and shorty mob fighted me and choked me". What that was all about was not pursued, but again it is something that should have been clarified on the examination which was required by s 49.

41 That the members of the jury were having some difficulty with the second VROI in the course of their deliberations was indicated by the fact that they later requested his Honour for a copy of the transcript of it. His Honour did not provide that because the evidence was, of course, what was on the tape itself, but also it seems, (as is apparent from the copy in the appeal book) the transcriber had considerable difficulty in actually understanding what the appellant was saying so that there were some errors and more commonly, portions which simply could not be deciphered.

42 The significance of the second VROI to the prosecution case must also be viewed in light of the fact that late in the afternoon, the foreman sent a note to his Honour informing him that the jurors had exhausted all their arguments but were still divided. His Honour then gave them a direction which was the subject of ground 8 and they retired again. However, after further deliberations, they informed his Honour they were still unable to agree. At that point his Honour told them they could return a majority verdict, which after further deliberation, they did.

43 In all these circumstances, it seems to me the failure to conduct the examination and make the determination required by s 49 of the Act did constitute a miscarriage of justice. Given the Crown's concession, no attempt was made to argue there was no substantial miscarriage of justice and so the proviso to s 689 of the Code does not apply. For the same reason it is not necessary to deal with the remaining grounds of appeal.