The King v Gumurdal [2025] NTSC 65

Evidence (National Uniform Legislation) Act 2011 (NT) s 81, s 90, s 138, s 139

Crown: Office of the Director of Public Prosecutions

The King v Gumurdal [2025] NTSC 65

[1] The accused is charged with one count of causing harm with intent to cause serious harm and one count of aggravated assault. The parties sought a pre-trial ruling on the admissibility of evidence sought to be relied on by the Crown at the trial, namely admissions made by the accused during an interview with Northern Territory Police whilst he was in custody in relation to another matter. The Defence objected to the admissibility of the admissions on the basis that the evidence was improperly obtained because the accused was not properly cautioned, did not understand his right to silence and consequently did not voluntarily participate in the interview. Further, that the Police made a false statement about the evidence against the accused and importuned him to participate in the interview.

[2] On 10 July 2025, after the voir dire, I ruled that the recorded interview was admissible and indicated I would provide written reasons in due course. These are my reasons.

[3] The accused is charged by an indictment dated 2 April 2025 with:

(a) one count of causing harm to KK, with intent to cause serious harm, contrary to s 177(a) of the Criminal Code (Count 1); and

(b) one count of aggravated assault of BS, contrary to s 188 of the Criminal Code, with the circumstances of aggravation that BS suffered harm and was threatened with an offensive weapon, namely a machete (Count 2).

[4] The Crown case is that the accused and victims were unknown to each other.

[5] At the time of the offending, the accused was subject to a suspended sentence for earlier offending and was on bail in respect of other unrelated charges.

[6] During the afternoon of 5 February 2024, the accused consumed alcohol and methamphetamine and later walked into the Darwin CBD.

[7] Throughout that evening, the victims consumed alcohol in the Darwin CBD in the company of a couple and another woman.

[8] At 8.26pm, the accused's movements were caught on CCTV. He was walking around the CBD wearing a black cap, yellow and dark coloured t-shirt, with a black bumbag over his shoulder. Some of the time he was in the company of an unknown woman who was wearing a red t-shirt. He walked towards the victims who were sitting near the corner of Cavenagh and Garramilla streets. He was with the unknown female and an unknown male. He was concealing a 58cm black machete underneath his shorts on his hip.

[9] The accused is caught on CCTV reaching down the front of his shorts with his right hand, pulling out the machete and walking closer towards the victims. He threatened the victims, telling BS: 'I'll cut your neck like this' and holding the machete to his own neck demonstrating a slicing motion. BS and KK stood up and immediately fled, fearing for their safety. They went to the Woolworths shopping complex where security officers were known to patrol and remained there. The accused and the two unidentified people he was with walked away and out of CCTV view.

[10] Between 8.32pm and 9.35pm, the victims remained in the Darwin CBD area, as seen on CCTV. At 9.35pm, they went into the Tomaris Court unit complex in Smith Street, as seen on CCTV. At 9.59pm, the accused was seen on CCTV walking along Knuckey Street towards Mitchell Street. The unidentified female was then wearing the t-shirt previously worn by the accused and the accused was wearing the red t-shirt previously worn by that female.

[11] At 10.00pm, as seen on CCTV, the victims left the Tomaris Court unit complex and walked towards St Mary's Cathedral. At 10.15pm, as seen on CCTV, the accused and the two unidentified people entered the Tomaris Court unit complex. At 10.30pm, as seen on CCTV, the accused left the unit complex and walked alone towards St Mary's Cathedral. There are no CCTV cameras in that area.

[12] Between 10.30pm and 10.43pm, the accused smoked a cigarette and saw the victims sitting outside the Cathedral. The victims recognised the accused from the earlier incident and called out that he was the person who had threatened them earlier.

[13] The accused became enraged and yelled out to BS that he was going to cut his throat. He ran across the street towards the victims who were at the front of the Cathedral. He took the machete out of its sheath, raised it with his right hand and struck KK to the right side of her head and neck area, causing a deep laceration on her skull that began to bleed profusely. She stumbled to the ground. That is the offending the subject of Count 1.

[14] The accused then chased BS. He fled onto the road and tried to get away. The accused chased him. The accused attempted to hit BS in the head with the blade of the machete by raising it over his head and swinging it in BS's direction. BS raised his arms over his head to block the strike. The machete made contact with BS's arm, causing a large laceration on his forearm, which began to bleed profusely. That is the offending the subject of Count 2.

[15] Security officers then attended the scene. The accused left the scene and as seen on CCTV, headed down Smith Street. The security officers called 000 and provided first aid to the victims, who told one of the security officers they were attacked with a machete by a male wearing a red shirt. The victims were taken to the Hospital.

[16] As a result of the attack, KK suffered a deep cut to her skull and a compound skull fracture. If left untreated, it is more likely than not that injury could have led to her death due to intra-curial infection and sepsis. The injury comprised serious harm.

[17] As a result of the attack, BS suffered a deep laceration to his forearm approximately 10-15cm in length, and a laceration to his shoulder blade approximately 5cm in length. An x-ray showed no fracture or malalignment.

[18] On 7 February 2024, the accused was spoken to by Police at a service station after concerns were raised that he had a large black machete concealed in his shorts. He was searched by Police and a 57cm sheathed machete was located concealed in the waistband of his shorts. He provided no lawful reason, excuse or justification for possessing the machete in a public place, so he was arrested. At the time of his arrest, he was wearing the same clothing as depicted in the CCTV footage of him in the CBD on 5 February 2024.

[19] The machete was seized for forensic examination. Swabs taken from the blade and analysed for DNA identified BS as the major contributor to the swab DNA profile.

[20] The accused denies any involvement in this offending.

[21] On 18 June 2024, the accused participated in an electronically recorded interview with Senior Constable Rhys Millar ('Millar') and Detective Sergeant Ashleigh Raeburn ('Raeburn') at the Darwin Correctional Centre during which he made various admissions as to the offending sought to be relied on by the Crown. Millar gave evidence on the voir dire.

[22] Millar gave evidence that he and Raeburn met the accused in a reception area at the Darwin Correctional Centre. They walked with him from there to an interview room. This was recorded on body worn cameras. As they entered the interview room, Millar said to the accused that 'everything we're saying' is being recorded on this body worn camera. The accused nodded towards the camera. There was then the following exchange:

Millar: So before we go any further, I gotta tell you that you don't have to say anything to me, but anything you do say, it's gonna be given in evidence in court.

Millar: All right. So, anything you say is your choice. Yeah?

[23] When Police sat down with the accused in the interview room, Millar told the accused that he wanted to speak to the accused about a machete attack on two people in Smith Street near St Mary's Cathedral in February. Millar asked the accused if he knew what he was talking about and the accused said: 'Nah'. Millar asked the accused if he remembered Police taking a machete off him when he was arrested and he said he did. Millar asked the accused to think about the days before that arrest and if he remembered any incidents that he wanted to tell Millar about. The accused said: 'Nah. I've never.' Millar said that was all right and that he would not do any interview if the accused could not remember anything.

[24] Millar then told the accused that the machete taken from him was tested and DNA on the machete came back as belonging to BS and KK. Millar asked the accused if he knew those people and the accused said: 'Nah'. Millar told the accused the machete came back with their DNA, their blood, on the blade and those two people gave statements to Millar saying that a person had attacked them with a machete, being the machete the accused was carrying, and the accused was tracked on CCTV wearing the same clothing as he was when he was arrested. Millar told the accused that he would have a summons issued for the accused to attend court for charges of attacking the two people with a machete. He asked the accused if he understood and the accused said: 'Yeah'.

[25] There was then the following exchange (with my observations of the accused's demeanour as seen on the recording):

Raeburn: So, do you understand that without any version of events from you all we have is this side of the story? [Accused nodding] Do you understand that?

Raeburn: So, if there is something that you wanna say or if there is something that you think that we should know then it's up to you, obviously if you wanna tell us, but we would like your version of events. So if today you don't feel like it, even if you in future remember something and you would like to talk about something to do with that, that you think we should know about -um- then please tell us because in fairness we do want the whole story. OK. But ---

Raeburn: --- without a version of events from you we only have part of the story. OK?

Millar: Anything you want to talk to us about? Anything you wanna say to us?

Accused: [Leans back in chair and sighs] Um [pause] I just be honest. Yeah, that was me but I wasn't attacking both of them but ---

Accused: --- I was using the blunt bit just to crack that -um- old fella but not that woman. I didn't attacked her. [Accused speaking confidently and firmly]

Accused: Nah. I remember the person that's all I chase at the BP.

Accused: I ran to him and then hitting him with the machete.

[26] There was then the following exchange (with my observations of the accused's demeanour as seen on the recording):

Raeburn: So, I s'pose what we would like to do is ask you some more questions about that. It's up to you if you wanna answer those questions or if you wanna keep doing this. [Accused nodding] If you don't that's totally fine. You just say look, I don't wanna do that.

Raeburn: Um- but I want you to understand that that's your choice to discuss those things or not ---

Raeburn: --- to discuss those things. OK. Um- what would you like to do?

Millar: --- what we wanna do is out of fairness for you there's certain procedures that we have to do. So, we've gotta record. If you wanna con- make confession or tell me the true story of your version of events of what happened there's some requirements that law say that I've gotta record it in a certain way [Accused nodding] and that I've gotta give you your rights in a certain way and I've gotta, I s'pose, do the administrative stuff out of fairness to you so that the judge in the court says that you told your story without me coercing it from you or - so that it's fair on you.

Millar: Is that something that you'll wanna do today and that you wanna do now? Is tell your side of the story and ---

[27] Millar then told the accused he would set up the machine to record the interview onto CD and would 'run through this administrative stuff' and give the accused his rights again like he said at the start and then the accused could tell him everything he wanted to tell about what happened. Millar told the accused he could have someone sit with him in the interview and confirmed the accused felt 'OK' to be there by himself.

[28] Millar told the accused that if at any point he decided he did not want to do it anymore, to let them know. Millar then asked the accused some background questions about how to spell his name, where he was from, where he went to school and they had a brief conversation about Kormilda College. The recording machine was not working, so the interview was recorded on the body worn cameras of both officers.

[29] On the sixth page of the transcript of the recorded interactions with the accused, Millar gave the formal introduction to a recorded interview, stating the time and date and the identities of both Police officers.

[30] Thereafter, the accused told Police he stayed with a carer when not in custody, he had schizophrenia for which he takes medication, he was taking it at that time, which keeps his anger calm, he was happy to be there without a support person, he understood he was remanded in custody and not free to leave and was told that if at any time he did not want to continue with the interview, he could tell Police he did not want to do it and they would stop. He was asked if he remembered being told about his right to silence. The transcript of the interview indicates that he said: 'Um - nah'. That was not something I heard him say in the recording.

[31] The accused then confirmed he remembered being told that he did not have to speak to Police if he did not want to. Asked what he told Police in response, the accused said: 'Um - tell you the truth'. The accused was told that anything he said or did is potentially going to be used in evidence in court. He was told Police wanted to talk to him about the machete attack on Smith Street on 5 February 2024 and that he was not obliged to do or say anything unless he wished to do so. There was then the following exchange:

Millar: Can you tell me in your own words what that means?

Millar: So, you don't have to talk to me or Ashleigh or answer our questions if we ask them of you ---

Millar: --- if you don't want to do to. So, whose choice is it to talk to us?

Millar: And if I ask you a question, do you have to answer it?

Raeburn: We want to be really clear on that; that it's your choice to answer those questions.

Raeburn: OK. So, if we asked you a question you can answer it if you want to or you can say 'I don't wanna answer that question, but I'll answer some other questions'. Or you can say 'I don't wanna answer any of those questions'. OK. It's all your choice.

Raeburn: You tell us what you want to tell us. If you don't want to tell us things, that's OK.

Millar: So, whose choice is it to answer questions?

Millar: Whose choice? Do you have to answer or not?

Millar: You don't have to. Yep. So, if I ask you a question and you don't wanna answer it, do you have to say - do you have to answer it?

Millar: So, the other part of this is we're recording, so that beeping and that recording over there, we're recording this conversation on video. So, our words and our images are being recorded and they're gonna be given later in evidence. Do you understand what that means?

Millar: All right. So, a Judge might view that video. The Court ---

Millar: Anyone that might be in the Court might view that video. Do you understand that?

Millar: All right. So, all these people can view that video of what you're saying now and what's being recorded now.

Raeburn: Um - all right and I just - I s'pose I wanted to be really sure that you're - you're happy to talk to us today. Are you happy to keep talking to us?

[32] Subsequently, the accused made admissions that:

(a) He had been drinking and then smoked and injected ICE, got 'highed up' and went to the city.

(b) He walked to Tomaris Court, to drop his girlfriend off as she stays there.

(c) When he walked out, one 'old fella' (probably middle-aged, who was 'a countryman', he was 'black') sang out to him, swore at him and was 'carrying on'.

(d) The old man was saying: 'Oi, you're the person there'. The accused did not know what he was going on about.

(e) The man was standing at the front of the church when he said this.

(f) The accused got really angry because he was 'high off [his] head'.

(g) The accused said: 'Oi, I'm coming to cut you throat'.

(h) The man ran away, so he ran and chased him on the road and hit him twice with the machete, then walked away.

(i) He did not hit him with the sharp part, but with the blunt side.

(j) The accused had the machete with him, on his hip.

(k) He hit him twice, on the back top of the head and then on his leg. The man was laying on the ground 'looking for help'.

(l) The man had a woman next to him. The accused did not hurt her, he did not do anything to her. She was bleeding, with blood covering her head, but the accused did not know what from.

(m) The accused freaked out and thought he did not want to get done for that because he had a machete and it might be thought he 'chopped her up', so he walked away.

(n) The accused only assaulted the man, not the woman.

(o) The woman was saying: 'Why are you hurting my man?' and he told her to call an ambulance for the man or the Police.

(p) This happened when it was dark.

(q) The accused was wearing a red shirt, basketball shorts, black runners, a bumbag and a black hat.

(r) The accused drew a sketch of where he was coming out of Tomaris Court and where the man was, where the man ran to, and where the accused pulled out the machete.

(s) Asked what can happen when you hit a person with a machete on the head, the accused said that is the wrong thing to do, the person could lose their memory or 'probably might kill them'.

(t) When the accused hit the man, he wanted to 'shut him', this man who kept talking.

(u) Shown still shots from body worn footage of himself on his arrest, the accused said it was him and described the clothing he was wearing: black hat, red shirt, black bumbag. Shown still shots from CCTV in the city, the accused said it was him and described the clothing he was wearing: red shirt, black shorts. Shown photographs of the machete seized from the accused by Police, the accused said his uncle had given it to him and he had it with him for self-defence. He said he hit the man with the back side of the blade.

(v) Asked why he did not call an ambulance or the Police, the accused said because he was the person that assaulted the person.

[33] At the end of the interview, the accused agreed that he had answered all the questions of his own free will, no one had forced him to answer them, and it was his choice.

[34] There is no dispute that the representations by the accused as set out in paragraphs [25] and [32] above are 'admissions' within the meaning of the Evidence (National Uniform Legislation) Act 2011 (NT) ('ENULA'). I will refer to them as 'the challenged admissions'.

[35] Section 81(1) of the ENULA provides (relevantly) that the hearsay rule does not apply to evidence of an admission. The term 'admission' is defined to mean a previous representation that is: (a) made by a person who (relevantly) is or becomes a defendant in a criminal proceeding; and (b) adverse to the person's interest in the outcome of the proceeding.[1]

[36] It is clear that the challenged admissions fall within this definition.

Were the circumstances such as to make it unlikely that the truth of the admissions was adversely affected?

The operation of s 85, ENULA

[37] There is no dispute that the challenged admissions were made in circumstances falling within s 85(1) of the ENULA. Section 85(2) provides that evidence of an admission is not admissible unless the circumstances in which it was made were such as to make it unlikely that the truth of the admission was adversely affected. By s 85(3), the court may take into account (relevantly) any relevant condition or characteristic of the accused (including age, personality, education, any mental, intellectual or physical disability); and the nature of the questions and the manner in which they were put.

[38] Section 85 of the ENULA is concerned with whether the circumstances adversely affected the 'truth of the admission'. It is not directly concerned with whether the evidence has been improperly or illegally obtained, or general considerations of fairness, and nor is the provision concerned with the voluntariness of the confession, except to the extent that it might bear on the assessment of reliability in the relevant sense.[2]

[39] The enquiry also does not raise any consideration of whether the admissions made were, in fact, true.[3] The relevant enquiry is whether circumstances such as the accused's personal characteristics and the level of compliance with procedural safeguards may have affected the truth of the confession.[4]

[40] The operation of the provision and the relevant factors and considerations were identified by Barr J in R v GP[5] (at [30]) in the following terms:

The prosecution in the present case must satisfy the court on the balance of probabilities that the admissions relied on were made in circumstances that were not likely to affect their truth adversely [Bin Sulaeman v R [2013] NSWCCA 283 at [81]]. As trial judge, I must determine whether the reliability of the admissions may have been impaired by the way in which they were obtained. In this exercise, I need to consider all the circumstances. Those circumstances include the characteristics of the accused person making the admission, including age, personality, education and any mental, intellectual or physical disability affecting him. The circumstances would also include, where they exist, misconduct by those interrogating, the procedural safeguards adopted, and whether there was any impairment of the ability of the person making the admission to make a rational decision.

[41] In other words, the enquiry is whether the circumstances were such that it was unlikely that the accused made a false confession.[6]

[42] The accused must satisfy the Court, on the balance of probabilities, that a question legitimately arises as to whether the circumstances were such that the truth of the admission might have been adversely affected.[7] If so satisfied, then the burden falls on the Crown to establish that the circumstances were unlikely to have adversely affected the truth of the admissions.[8]

[43] In the recorded interview, the accused stated that he has schizophrenia, a condition he had been diagnosed with some years earlier, and for which he was taking medication which had the effect of calming his anger.

[44] The Defence submitted that the accused's mental illness was a circumstance which bore on the likely truth of the challenged admissions because Police did not consider the potential effect of that condition on the reliability of his memory. In the absence of anything other than an admitted diagnosis of schizophrenia, for which he was taking medication, there is no foundation for this submission. There is no medical or other evidence to suggest that the accused's schizophrenia affected his memory or his capacity to communicate.

[45] I am not satisfied that a question legitimately arises as to whether the accused suffering schizophrenia was a circumstance such that the truth of the challenged admissions might have been adversely affected.

[46] In the recorded interview, the accused stated that the main language he speaks is an Aboriginal language, that he does speak English, that he understood what Millar was saying to him, that he went to school in Darwin, completed Year 9, and can read and write English 'not that good but I can read'.

[47] The Defence submitted that the fact that English was the accused's second language was a circumstance which bore on the likely truth of the challenged admissions because of the potential for miscommunications, including gratuitous concurrence. The Defence pointed to various matters said to comprise miscommunications, which related to the accused's understanding of the cautions, and to various matters said to comprise gratuitous concurrence indicating a mistaken (but encouraged) belief that he was under an obligation to remember and recount the machete incident and the clothes he was wearing. These matters are dealt with in detail in relation to the issue of whether the evidence was obtained by an impropriety.

[48] In my observation, watching the footage of the recorded interview, the accused was able to give a clear narrative about his encounter with the man and the woman, where that encounter occurred, what was said by the man and the woman, what he said, what he did with the machete, what he did not do with the machete, where he got the machete from, and what he was wearing. As the accused gave this narrative, the Police did not ask leading questions nor put 'either / or' questions which suggested limited options for response. The accused put his narrative in response to questions clearly and confidently. He corrected matters of detail (such as that it was the man who was saying 'you're the person' not the woman, as put to him by Millar) and was able to indicate that he did not recall matters asked of him.

[49] On the basis of my observations of the recorded interview, I am not satisfied that the fact that English was the accused's second language was a circumstance such that the truth of the challenged admissions might have been adversely affected.

Accused lacked understanding of his right to end the interview

[50] In the recorded interview, the accused expressed his understanding that he was on remand so not free to leave the prison. He was told a number of times that he did not have to speak to the Police or answer all or any of their questions. He was specifically told he could terminate the interview at any time.

[51] I do not accept that the accused was labouring under a mistaken belief that he could not end the interview because he was a prisoner on remand and was obliged to answer the questions. I deal with this issue further below in relation to whether there was an impropriety.

[52] I am not satisfied that the circumstances of the interview were such that the truth of the challenged admissions might have been adversely affected.

[53] I do not accept that any non-compliance with the Anunga guidelines suggested miscommunication or unreliability of the challenged admissions.

[54] As was observed by Blokland J in The Queen v BL,[9] the Anunga guidelines are not and never have been absolute rules, were intended to ensure vulnerable suspects were not disadvantaged and unreliable admissions were not admitted and especially, but not exclusively, address vulnerabilities resulting from deficiencies in language or the inability to properly explain or guard against gratuitous concurrence in the face of leading questions.

[55] As held above, my observation of the accused's English language capacity and the nature of the questioning by Police was that there was nothing to suggest that the fact that English was the accused's second language was a circumstance such that the truth of the challenged admissions might have been adversely affected. Any 'failure' to comply with the Anunga guidelines was a result of the accused's English language capacities which meant that they did not need to be applied to him.

Conclusion as to compliance with s 85, ENULA

[56] For the above reasons, I am satisfied that the circumstances in which the challenged admissions were made were such as to make it unlikely that their truth was adversely affected. They are therefore admissible pursuant to s 85 of the ENULA.

Were the admissions obtained by an impropriety in the interview?

[57] The Defence argued that the challenged admissions should be excluded under s 138(1)(a) of the ENULA as evidence of a statement made during questioning improperly obtained, by reference to s 139 of that Act and other matters. The Defence argued that the accused did not properly understand the caution. Further, Millar had told the accused that the DNA and blood of both victims was found on the machete, which was a false statement within s 138(2)(b), because only BS's DNA and blood was found on the machete. The Defence also argued that the accused was effectively coerced, or at least importuned, into making the challenged admissions.

The operation of ss 138 and 139, ENULA

[58] Section 138(1) of the ENULA provides that evidence that was obtained (relevantly) in consequence of an impropriety 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 the evidence was obtained.

[59] Section 138(2) provides that evidence of an admission that was made during or in consequence of questioning is taken to have been obtained improperly if the person conducting the questioning (relevantly) made a false statement in the course of the questioning even though they knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

[60] Section 139(1) of the ENULA provides that, for the purposes of s 138(1)(a), evidence of a statement made by a person during questioning is taken to have been obtained improperly if: (a) the person was under arrest at the time; (b) the questioning was conducted by an investigating official who was at the time empowered to arrest the person; and (c) before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence. Section 139(3) provides that the caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency.

[61] Despite the fact that the accused was not under arrest for these charges at the time of the questioning, it was not in dispute that s 139 applied to the recorded interview. Presumably, that was on the basis that he was held in custody on remand in relation to other offending. Given my conclusion below, it is unnecessary to decide whether the pre-requisite in s 139(1)(a) was satisfied.

[62] At the outset of the recorded Police interaction with the accused, a caution was administered in substantially the terms set out in s 139(1)(c). The caution was given in English. The critical issue in s 139(3) is whether the caution was communicated to the arrested person in a way which ensured that he or she understood the matters contained in the caution.[10]

[63] I apply the test formulated by Higgins J in The Queen v Taylor[11] at [19], namely that the caution will fail to satisfy s 139(3) if the circumstances are such that the officer knows, or ought to know, that the caution has not been understood, but there is no such failure if a reasonable person in the position of the officer, acting with proper respect for the rights of suspects, did not and could not reasonably have been expected to perceive that the suspect did not understand the caution.

[64] There is no direct evidence that the accused did not understand the caution. There is evidence that the accused is an Aboriginal person and spoke an Aboriginal language as his first language, in addition to English.

[65] The Defence pointed to the accused being told that Police would like to ask him some more questions about the machete incident, he did not have to answer their questions, he was asked what he wanted to do, and his response was that he could plead guilty to the assault [of the man]. This was said to be evidence of the accused's lack of understanding of the caution. I do not accept that. He had just told Police that he assaulted the man with the machete, he was asked what he wanted to do, and he said he can plead guilty for the assault. All this indicates is that the accused was focussing on the consequences of what he had just admitted to, rather than on the immediate issue of whether he wanted to participate in a formal recorded interview. It is a firm indication that he understood the consequences of making the admissions he made to Police.

[66] As set out in paragraphs [30]-[31] above, the accused confirmed he remembered Millar saying he did not have to speak to Police if he did not want to. Asked what the accused told Millar, he said: 'Um - tell you the truth'. Millar then repeated the caution. Asked to say what that meant in his own words, the accused said: 'Sorry?' and 'What you say, sorry?'. It appeared to me that he simply did not hear what had been said to him.

[67] The caution was repeated and, asked whose choice it is to talk, he answered: 'Um - me.' Asked if he had to answer a question, he said: 'Um - yes'. He was told he did not have to answer, and it is his choice to answer. Asked again whose choice it is to answer, he said: 'Um'. Asked if he had to answer or not, he said: 'Um, nah'. Asked again if he had to answer a question, he said: 'Nah'. He was then told again that the recording would be given in evidence. Asked who might view the recording, he did not know. He was told it might be a Judge, the court, lawyers and anyone else who might be in court. He agreed he understood that. He was asked again if he was happy to keep talking to the Police and he said he was.

[68] During this part of the interview, the accused's responses were, for the most part, given confidently, he was nodding at intervals appropriate to what was said to him, and he did not appear in any way reluctant, hesitant or uncertain.

[69] Given his language proficiency as I observed it (as referred to above), his schooling in Darwin having completed Year 9, and what was said to him and his responses in the interview, including his demeanour, I am satisfied that he understood the essence of the caution, namely he knew the nature of the allegations, he understood he did not have to say anything, he understood that what he said would be recorded, and he understood that the recording might be used in court.

[70] On the voir dire, the Crown relied on evidence from Millar, the substance of which was:

(a) from the age of 14 and up to the age of 18, the accused had, on three occasions, declined to participate in a recorded interview;

(b) from the age of 18 and upwards, the accused had, on six occasions, declined to participate in a recorded interview;

(c) after turning 18, the accused had participated in two recorded interviews with Police, both in 2014; and

(d) the accused's criminal history comprised over 50 entries.

[71] I take into account the accused's prior experience with recorded interviews, and his experience in court proceedings as simply confirming my perception that the accused understood the essence of the caution.

[72] Consequently, the cautions administered to the accused satisfied the requirements of s 139(3) of the ENULA.

False statement about the female victim's DNA on the machete

[73] As set out in paragraph [24] above, Millar told the accused that DNA and blood from both victims had been found on the machete. This was not correct because only BS's DNA had been found on the machete.

[74] The Defence argued that this was a false statement within s 138(2)(b) of the ENULA.

[75] On the voir dire, Millar gave evidence that the DNA analysis identified the DNA of BS on the machete. He agreed he told the accused that the DNA of both victims was found. He said this was just a slip. He had spoken to both victims, and both their names were in his head. He said he did not even realise that he had made that slip during the interview, which was why he did not correct it.

[76] On the basis of Millar's evidence, which was not challenged under cross-examination I accept that the statement about the female victim's DNA being on the machete was inadvertent, not deliberate.

[77] I note that, in outlining to the accused, what Police had against him, Millar referred to a number of matters, not just the DNA evidence, namely statements from the victims, CCTV footage of the accused and his clothing. Further, the misstatement did not cause the accused to make any admission relating to striking the female victim with the machete. This indicates that the accused was capable of rejecting the misstatement and the accused was not unduly influenced or pressured to make any admission because of it.

[78] Consequently, I do not regard it as an impropriety within s 138 of the ENULA.[12]

Was the accused coerced or importuned into making the admissions?

[79] The Defence argued that, by 'imploring' the accused to give his version of events, in circumstances where they already had enough evidence to charge him with the offending,[13] the Police effectively coerced or, at the least importuned, the accused to make the initial admission, and participate in the recorded interview.

[80] Millar explained what he said to the accused as, out of fairness to the accused, giving him an opportunity to provide exculpatory evidence or comment on the allegations against him.[14]

[81] In cross-examination, Millar explained that initially the accused declined to do a recorded interview, saying he did not remember the incident and that he did not know what Millar was talking about. Millar asked the accused about the machete being taken from him on his arrest and asked if he remembered any incidents relating to the machete. He did this to determine whether the accused recalled anything, otherwise there would be no point doing an interview. Millar agreed he referred to the DNA evidence because at that stage the accused was not remembering. He said he told the accused what he would be doing given that the accused had declined an interview, namely issuing a notice to appear. Millar disagreed that, when Raeburn was telling the accused that without the accused's version of events, all Police had was 'this side of the story', questioning of the accused about the machete attack was continuing. Millar denied that Raeburn asking the accused if there was anything he wanted to say to them was importuning or pressuring the accused to speak to them. Millar said this was simply offering the accused the chance to speak to the allegations that had been put to him, and asking the accused if he had anything to say to Police in a formal recorded interview.

[82] Despite the rigorous cross-examination, I accept that Millar's intention at this time was (as he said) to put before the accused the evidence the Police had and ask him whether he wished to participate in a formal recorded interview. I do not accept that, at that stage, Millar's (or Raeburn's) intention was to elicit information from the accused about the alleged offending. Rather, their intention was simply to invite him to participate in a formal recorded interview.

[83] I do accept that the effect of this conversation may have been that the accused was persuaded to make the initial admission and participate in the recorded interview. I consider that the likelihood is that the accused wished to put his version of events to Police in response to the substance of the allegations they were putting to him, particularly that he assaulted the male but not the female, and he elected to do so. I do not accept that he did that because he did not understand the caution or his right to silence. Rather, he changed his initial decision not to do a recorded interview in response to the allegations put to him, and he made the initial admission and the other admissions in consequence of that decision. In the circumstances of this case, particularly the accused's understanding of the essence of the caution and his election to give Police his version of events and make the challenged admissions, any persuasion he felt by what Police said to him was not an impropriety.

Conclusions regarding admissibility under s 138, ENULA

[84] For the above reasons, the challenged admissions are not rendered inadmissible by ss 138 and 139 of the ENULA.

Desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in that way

[85] Given my conclusions above, it is not strictly necessary to consider further the operation of s 138. Nevertheless, lest I be wrong about those conclusions, I will do so briefly on the assumption (contrary to my conclusions above) that I found the matters complained about by the Defence were improprieties.

[86] Once an accused has satisfied the court that evidence was obtained improperly, the Crown must persuade the court that the balance favours the admission of the evidence.[15]

[87] In conducting that balancing exercise, s 138 is not expressly concerned with ensuring a fair trial and is not directed to relieving the accused from unfairness resulting from the relevant impropriety.[16] The prejudice to the individual accused will almost always be present but will rarely be material.[17] The fundamental concern of the section is to ensure that the impropriety involved in obtaining the evidence is balanced against the public interest in successfully prosecuting alleged offenders.[18]

[88] Section 138(3) provides a non-exhaustive list of the matters the court may consider in the exercise of the discretion. The most important consideration in a case such as the present will be the nature and seriousness of the improper conduct engaged in by the Police officer.[19] The authorities draw a distinction between the two extreme categories of case. At one end of the spectrum there are those improprieties which constitute 'isolated and merely accidental non-compliance', and at the other end of the spectrum are cases in which the incriminating statement has been procured by a deliberate or reckless disregard of the law on the part of the law officers concerned. In the former category of case, it would ordinarily be inappropriate to exclude evidence of a voluntary confessional statement on public policy grounds.[20]

[89] The impropriety in this case was argued to be constituted essentially by: (a) a failure to administer the caution with the assistance of an interpreter or support person to ensure the accused understood its essence; (b) a factual misstatement about the DNA evidence; and (c) some importunity. The right to silence is a fundamental civil liberty. That is reflected in the fact that Art 14.3 of the International Covenant on Civil and Political Rights 1966 recognises the privilege against self-incrimination and the right to silence. At the level of principle, any such impropriety is grave.[21]

[90] It certainly cannot be said that the impropriety was deliberate or reckless in nature. It was accepted by the Defence that there was no mala fides on the part of the Police officers. This was not an unlawfully compelled interrogation going to the very root of the administration of justice.[22] Nor was it a case of persistent Police importunity after the subject of the questioning had repeatedly indicated he or she was exercising the right to silence, and that right was undermined and otherwise derogated.[23]

[91] Both the probative value and importance of the evidence is significant in these proceedings. The assessment of probative value requires an analysis of the extent to which the evidence could rationally affect the proof of facts. This evidence clearly has a very high probative value as direct admissions of guilt in relation to Count 2 and admissions of opportunity, possession of the weapon and the state of mind relevant to intention in relation to Count 1.

[92] The charged offences are reasonably serious. Violent offending with weapons and causing harm is prevalent and causes disquiet in the community. The maximum penalties for the offences are imprisonment for life for Count 1 and imprisonment for five years for Count 2.

[93] The reasons for the non-compliance in this case were that the initial purpose of the conversation was to offer the accused the opportunity to participate in a recorded interview, and Millar did administer a caution at the very outset. There was no considered intention to flout the relevant requirement. While the admission of the evidence may be unfair to the accused given the circumstances in which the admissions were made, the probative value and importance of the evidence is very high. For these reasons, I would have been satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in this way.

[94] The Defence submitted in writing that the Court should exercise its discretion to refuse to admit the challenged admissions under s 90 of the ENULA, which provides that the court may refuse to admit evidence of an admission if it is adduced by the prosecution and, having regard to the circumstances in which it was made, it would be unfair to the accused to use the evidence.

[95] The Defence did not press any specific complaint about why the evidence should be excluded under s 90 separately or additional to the matters raised in relation to ss 85, 138 and 139. While s 90 acts as a final or 'safety net' provision, questions relating to reliability and illegality or impropriety are covered by those other sections of the ENULA.[24] Section 90 has not been enlivened.

[96] For the above reasons, I ruled that the challenged admissions in the recorded interview are admissible at the trial.

[1] See Part 1 of the Dictionary.

[2] The Queen v Downs [2019] NTSC 7 ('Downs') at [29] per Grant CJ.

[4] Ibid at [30], citing R v GP (2015) 35 NTLR 117 at [30].

[5] (2015) 35 NTLR 117.

[6] Downs at [30] per Grant CJ, citing R v Esposito (1998) 45 NSWLR 442 at 459-460; R v Rooke (Unreported, NSW Court of Criminal Appeal, Newman, Levine and Barr JJ, No 60550/96, 2 September 1997).

[7] The Queen v Esposito (1998) 45 NSWLR 442 at 459 per Woods CJ.

[8] FMJ v The Queen [2011] VSCA 308 at [48], citing The Queen v Esposito.

[9] [2015] NTSC 85 at [33].

[10] The Queen v Deng [2001] NSWCCA 153 at [17] per James J, at [34] per Ipp AJA. Reliance was placed by the Defence on the decision in The Queen v Bonson [2019] NTSC 22, which was said to explain or emphasise the term 'fluency' in s 139(3). That decision does not explain the meaning of the term 'fluency' and (at [55]), Hiley J expressly declined to express an opinion as to whether or not s 139(3) was complied with in that case.

[11] [1999] ACTSC 47.

[12] See Beckett v The Queen [2014] NSWCCA 305 at [69] per Beazley P, citing The Queen v Cornwell [2003] NSWSC 97 at [24] per Howie J. I note that the decision in Beckett v The Queen was overturned on appeal to the High Court, but not for reasons relating to this issue: see The Queen v Beckett [2015] HCA 38.

[13] Millar attested to this in his statutory declaration made on 23 June 2025, [11].

[14] Statutory declaration of Millar made on 23 June 2025, [12].

[15] Parker v Comptroller-General of Customs (2009) 252 ALR 619 at [28].

[16] The King v Marcus [2025] NTSC 39 at [18] per Grant J.

[18] Ibid, citing The Queen v Flemming [2007] NSWCA 328 at [31].

[19] The King v Marcus [2025] NTSC 39 at [19] per Grant J.

[20] Ibid, citing, in the common law context, Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177 at 203-204.

[21] The King v Marcus [2025] NTSC 39 at [20] per Grant J.

[22] See, for example, Strikland (a pseudonym) v Commonwealth DPP [2018] HCA 53; (2018) 93 ALJR 1 at [100]. In that case, the impropriety was a grossly negligent abrogation of statutory responsibilities by way of invocation of a statutory power of questioning where the right to silence was limited, for a purpose other than the specific, identified statutory purpose or which did not accord strictly with the statute: at [101].

[23] See, for example, The Queen v FE [2013] NSWSC 1692 at [61]- [64], [68], [134]. That involved holding the accused, a youth, in a room and telling her she was not allowed to leave, and questioning her when she had not been cautioned or arrested, on a subsequent occasion, after her arrest, providing a support person she did not choose who had English language difficulties, and conducting a recorded interview with her even though she unequivocally informed Police that she did not want to be interviewed or recorded, her lawyer had confirmed that to Police in writing, the accused had unequivocally reiterated to Police that she did not want to be interviewed and was told she had to, and the accused did not understand the caution. The Court held (at [68]) that the accused did not understand her right to silence or that she was entitled to refuse to answer questions, and the Police took advantage of her youth, her vulnerability and her support person's limited education and English, which ill-equipped her to protect the accused's rights.

[24] The Queen v Layt [2018] NTSC 36 at [58], [61]-[62] per Grant CJ; The Queen v Jennings [2020] NTSC 71 at [12]- [14] per Grant CJ.