Aboriginal Law Bulletin
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Neil Rees
It is highly likely that the Criminal Investigation Bill 1981 will be enacted by the federal parliament within the next few months. Much thought has gone into the Bill: it has been years in the making and those who drafted it are obviously acutely aware of many of the practical problems which arise in the criminal investigation process.
Despite the fact that its overall theme is laudable, the Bill fails to provide adequate safeguards against the denial of fundamental individual freedoms and the abuse of police powers. Evidence obtained in contravention of the new `law' is inadmissible, `unless, in the opinion of the court, admission of the evidence would substantially benefit the public interest in the administration of criminal justice without unduly' prejudicingg the rights and freedoms' of any person'.[1] This test is remarkably similar to that laid down by the High Court in Bunning v Cross,[2] for use in cases involving improperly or unlawfully obtained 'real' evidence. It is a widely held belief amongst criminal lawyers that the Bunning v Cross test invariably operates to the disadvantage of accused persons. With the benefit of that experience it is reasonable to conclude that evidence obtained in contravention of the Criminal Investigation 'Act' will rarely be rejected because our courts have consistently held that the protection of the individual does not outweigh 'the public interest in the administration of criminal justice'. If this prediction proves correct the police will be provided with a 'licence' to flout the new `law' in those cases where it can be argued that there is aa strong public interest in securing a conviction.
The new Commonwealth `law' will be of limited operation; its strictures are directed to the Australian Federal Police' and State and Territory police, only when exercising powers in relation to Federal or ACT offences. However the Bill may well be copied elsewhere. Because the Bill is the first attempt by any Australian legislature to comprehensively regulate the criminal investigation process and because it is the product of an exhaustive study conducted by the Australian Law Reform Com mission tempered with political considerations, legislatures contemplating a similar undertaking will undoubtedly treat the new Commonwealth Saw' as its basic reference.
There are specific provisions in the Criminal Investigation Bill dealing with the interrogation of Aborigines and Torres Strait Islanders in police custody. These provisions do not replace, but are in addition to, the procedures which must be followed when any members of the community are being questioned by Federal (or ACT) police in relation to an offence. Some of the more important provisions are discussed below.
Clause 26(1) of the Bill provides that a police officer must inform the most conveniently located Aboriginal Legal Service when s/he proposes to take any investigative action concerning an offence and there is in police custody a person who is reasonably believed to be an Aborigine or an Islander. The person in custody may object to the ALS being notified or may make private arrangements for a lawyer to attend the police station. When a police officer suspects that an Aborigine or an Islander has committed a serious offence[3] or any offence against the person or property (or such a person is in custody in respect of any of these offences), Clause 26(3) provides that the officer must not interview the suspect or take any other investigative action (e.g. an identification parade) unless a 'prisoner's friend' is present. Such a person may, be a friend or relative, a lawyer, a representative of an ALS or a person whose name appears on a list prepared by the responsible Minister (the Attorney-General). Lists will be prepared in consultation with appropriate ALSs.
It is not necessary for the police to conduct investigations in the presence of a prisoner's friend in the following circumstances:
1. when it is necessary to interview a person without delay in order to avoid the danger of death or serious injury or serious damage to property;
2. when the person in custody expressly and voluntarily waives the right to the presence of a prisoner's friend;
3. when there is a prescribed Commonwealth or ACT law which permits a police officer to ask a person certain questions or to cause a person to do certain actions; or
4. when 'the police officer has reasonable grounds for believing that, having regard to the person's level of education and understanding, he is not at a disadvantage in respect of the investigation ... in comparison with members of the Australian community generally'.
The burden of proving that a particular, case fell within one of these exceptions rests with the police.
Unfortunately these provisions of the Criminal Investigation Bill fall short of the protections afforded to Aborigines by the Anunga Rules[4] and the South Australian Police Circular[5]. It is unclear whether the Anunga Rules are applicable when Aborigines are questioned by federal police. If they do apply the new federal `law' will emasculate those Rules.
The Bill has not adopted the most important element of the Anunga Rules. There has been no attempt to ensure that an Aboriginal suspect fully understands that there is a free choice to speak or remain silent and only chooses to speak to the police after freely exercising that choice. The third guideline laid down by Forster CJ in Anunga's Case is as follows:
Great care should be taken in administering the caution when it is appropriate to do so. It is simply not adequate to administer it in the usual terms and say, 'Do you understand that?' or 'Do you understand that you do not have to answer questions?'. Interrogating police officers, having explained the caution in simple terms, should ask the Aboriginal to tell them what is meant by the caution, phrase by phrase, and should not proceed with the interrogation until it is clear the Aboriginal has apparent understanding of his right to remain silent ..[6].
By contrast, Clause 19 of the Bill simply requires the police to administer the standard caution to all persons in custody.
There have been a number of recent cases involving Aborigines in which it has been held that the prosecution must prove that 'an accused at the time he spoke truly understood his right to speak or remain silent',[7] in order to establish that a confession was made voluntarily. If there has been compliance with the Anunga Rules, and especially guideline number three which behoves the police to ask the accused to explain the meaning of the standard caution in his/her own words, a court is greatly assisted in determining whether there is sufficient evidence to conclude that the accused understood that s/he was not under any obligation to speak. Without this explanation by an Aboriginal accused it is 'not safe to assume from simple acknowledgment that the accused truly understood his right of silence, let alone had the capacity to exercise it if he wished.'[8]
Clause 31 of the Bill, which seeks to define 'voluntariness', exacerbates the problem. A confession is deemed not to be voluntary if it is made in consequence of:
(a) the use of physical violence, or a hreat of physical violence,to any person; or
(b) the making of a promise, threat or other inducement (not being physical violence or a threat of physical violence) likely to cause the person to make a confession that is untrue.
If this Clause seeks to restate the common law rule it is grossly inaccurate. In his classic formulation of the voluntariness rule in McDermott vR,[9] Dixon J stated that in order for a confession to be voluntary it must be proved that the accused made it 'in the exercise of his free choice'.[10] There are many factors other than physical violence and inducements which may cause an accused to confess without exercising a free choice to speak or remain silent. For instance, as the NT Supreme Court has recognised, even following the administration of the standard caution the accused may not be aware of the fact that s/he possesses that free choice.[11]
Because of the very limited reach of Clause 31 and the failure to incorporate the third Anunga guideline into the Bill, a confession made by an Aborigine would be admissible even though the accused had done nothing more to demonstrate an understanding of the choice to speak or remain silent than answer 'Yes' when asked whether s/he understood the standard caution. It is of more than passing interest that in both R v Jungala and Jagamara[12] and Coulthard v Steer[13] the NT Supreme Court chose to reject confessions when confronted with such evidence.
Clause 6(3) of the Bill seeks to retain the operation of any rules which protect the individual and which are capable of concurrent operation with the new federal 'law'. However it would be unrealistic to expect any court to undertake the necessary mental gyrations to weld together the Bill and those provisions of the Anunga Rules which it has not adopted. To add to the complications, Clause 69(4) provides that a court shall not exclude confessional evidence because the police have contravened the Judges Rules. On occasions courts have declared that the Judges Rules are analagous -to the Anunga Rules.[14] Thus it is open to argument that Clause 69(4) forbids exclusion when the Anunga Rules have been breached. Those interested may wish to examine Clause 69(3) which adds yet another dimension to the problem.
The suitability of the person chosen as an Aboriginal prisoner's friend has received considerable judicial attention in the Northern Territory and South'Australia. . It has also caused concern throughout Australia in the context of police interrogation of children.[15] The Bill does nothing to resolve the, problems which have arisen. It is difficult to disagree with the statement made by Brennan J in Collins v R that 'a prisoner's friend is intended to enhance the suspect's ability to choose freely whether to speak or to be silent'.[16] Yet in practice the prisoner's friend is often present `rather like a piece of appropriate furniture' as Muirhead J starkly commented in' Rockman v Stevens.[17] There is no point in having a prisoner's friend when that person may be just as bewildered and overborne by the experience of police interrogation as the suspect. Nevertheless Clause 26(9) of the Bill provides that a friend or relative of the suspect can be a suitable prisoner's friend. It is not beyond the realm of possibility that the police may prefer to interview a suspect in the presence of such an individual rather than an ALS lawyer or field officer. Fortunately cases such as R v Kennedy,[18] R v Ajax and Davey,[19] R v Hoosen and Nelson[20] and Rockman v Stevens[21] demonstrate that some courts have not been prepared to allow the police to pay mere lip service to the rules which require the presence of a prisoner's friend. In these cases South Australian and Northern Territory courts excluded confessions made in the presence of inappropriate prisoners' friends. If similar fact situations arise in cases involving the proposed Commonwealth law, the confessional evidence would be admissable.
Clause 26(4) of the Bill attempts to divide the Aboriginal community into two classes: disadvantaged persons entitled to special protection and others who may be interviewed by the police without the benefit of the presence of a prisoner's friend. It is apparent that this provision will be used to propogate the myth that it is only tribal Aborigines who are deserving of special protection during police interrogation. Courts in southern States have already demonstrated a reluctance to concede that there are Aborigines living in these areas who should be accorded the protection of Anunga-style rules. It is highly likely that these courts will continue to assert that any Aborigine who does not follow a traditional lifestyle 'is not at a disadvantage ... in comparison with members of the Australian community generally' and therefore may be interrogated in the absence of a prisoner's friend.
Other aspects of the Bill merit attention. As mentioned, prisoners' friends may be drawn from a variety of sources which include a list which is to be compiled by the responsible Minister after consultationn with ALS representatives. It seems the Legal Services can only consult and not veto. It is anticipated that welfare officials, JP's, ministers of religion and respected business people will figure prominently on any such lists. In the past such people have regularly acted as the prisoner's friend for children in police custody and have often been viewed by those children as authority figures, little removed from the police. The Queensland case of R v C[22] clearly illustrates the sort of problems which can arise. In that case a fourteen year old boy was questioned by police in the presence of a JP whom he had not previously known. The boy was not told of the reason for the JP's presence, there was no opportunity for private consultation, and the JP testified that he thought his function was merely to ensure that no undue pressure was placed on the accused. The boy's confession was rejected by a District Court judge because 'the balance between the parties so far as it was possible and practicable in the circumstances was not evened up'. Such a result could not be achieved under the Criminal Investigation Bill because it fails to look beyond the mere presence of a prisoner's friend during police interrogation.
A senior Victorian police officer recently described the Bill as an 'abject failure';[23] it is a fitting description of the provisions which are designed to provide special protection for Aboriginal people in police custody. Apparently the people responsible for the Bill have failed to closely scrutinize the many cases which have followed the decision in Anunga and the promulgation of the South Australian Police Circular.
[1] Clause 69(1). Clause 69(2) contains a number of matters which a court may consider in reaching its decision.
[2] [1978] HCA 22; (1978) 19 ALR 641; 52 ALJR 561.
[3] This term is defined in Clause 3 to be an offence punishable by more than 6 months imprisonment.
[4] See R v Anunga [1905] ArgusLawRp 117; (1976) 11 ALR 412.
[5] The Circular appears in Neil Rees, 'Police Interrogation of Aborigines' in Basten, Richardson, Ronalds and Zdenkowski (eds), The Criminal Injustice System (1982) 36 at 57-49.
[6] [1905] ArgusLawRp 117; (1976) 11 ALR 412,414-415.
[7] Coulthard v Steer (1982) 3 Aboriginal Law Bulletin] 8.
[8] Id.
[10] Id. at 511.
[11] See e.g. R v Jungala and Jagamara, Unrep., Sup. Ct. (NT) 21 March, 1980; Coulthard v Steer (1982) 3 Aboriginal Law Bulletin 8.
[12] Unrep., Sup. Ct. (NT) 21 March, 1980.
[13] (1982) 3 Aboriginal Law Bulletin 8.
[14] See e.g., Collins v R [1980] FCA 72; (1980) 31 ALR 257,312-314 (per Brennan J).
[15] See Neil Rees, 'Police Interrogation of Children' in Basten et al (eds), note 5 above, at 67.
[16] [1980] FCA 72; (1980) 31 ALR 257, 322.
[17] .(1981) [1981] AboriginalLawB 6; 1 Aboriginal Law Bulletin 6.
[18] Unrep. Sup. Ct. (NT) 30 November 1978.
[19] .(1977) 17 SASR 88.
[20] Unrep. Sup. Ct. (NT) 10 April 1978.
[21] [1981] AboriginalLawB 6; (1981) 1 Aboriginal Law Bulletin 6.
[22] Unrep. Dist. Ct. (Qld) 31 July 1979.
[23] Sydney ' Morning Herald, 8 February 1982.
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