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Chris Loorham
'Kumajay' (an Aboriginal word for 'No Name') is a nineteen year old Aboriginal man from Yuendumu, an Aboriginal settlement four hours' drive north-west of Alice Springs. He was born at Papunya, a nearby settlement where he went to school until he was sixteen. Kumajay's literacy skills extend no further than the ability to write his own name. He has great difficulty speaking and comprehending English, yet he speaks several Aboriginal languages fluently.
Kumajay worked several years ago for a period of six months as a labourer on a housing project at Yuendumu. Since then he has been unemployed, with only a very limited opportunity of gaining the most menial of jobs. Apart from the fact that he is single, his position is typical of hundreds of his peers living on Aboriginal settlements, and on the fringes of white towns in Central Australia.
In April 1981, Kumajay was brought to the Yuendumu Police Station and questioned about a rape that was alleged to have occurred the previous evening. A Record of Interview was conducted by two experienced officers from the Alice Springs CIB. During the interview which was conducted in English, Kumajay allegedly made very detailed admissions of the rape and signed the Record of Interview as being true. There was no `prisoner's friend' present during the conduct of the Record of Interview.
Two days later Kumajay was seen by a solicitor of the Central Australian Aboriginal Legal Aid Service in the Alice Springs Gaol where he denied the offence. Kumajay's instructions concerning the admissions contained in the Record of Interview were as follows: 'I been tell them straight way. I never rape that woman but I been call liar by thatt policeman. Policeman been force me tell lies'. Kumajay did not allege violence on the part of the police but he was adamant in his denial of the charge.
This is fairly typical of many cases handled by CAALAS. The problem of Aboriginal suspects making false admissions was dealt with by the Northern Territory Supreme Court in R v Anunga [1905] ArgusLawRp 117; (1976) 11 ALR 412 in which the Court laid down special guide-lines for investigating police to follow when conducting Records of Interview with. Aboriginal suspects. These include the provision of a 'prisoner's friend' and a requirement for the suspect to repeat each part of the formal caution in order that an understanding of his right to remain silent is assured.
The Record of Interview in Kumajay's case contained 140 questions and answers, including a number of preliminary questions and answers which endeavoured to fulfill the Anunga requirements concerning the caution. Questions 2 to 12 of the Record of Interview, and the answers in the Record, were as follows:
1.I am going to talk to you about an alleged rape that was committed on 'Y' last night. Do you understand that?
Yes.
3.I must tell you that you do not have to talk to me if you do not want to. Do you understand that?
Yes.
4. Will you tell me in your own words what I have just said?
I don't have to talk to you if I don't want to.
5.If you talk to me I will type it down here. Do you understand that?
Yes.
6. Will you tell me in your own words what I have just said?
Type him down.
7.I might later show that Judge in Court this paper and he might read it. Do you understand that?
Yes.
8. What might I do with this paper here? Might be for Court, ah. 9. Do you know what a Court is?
Yes.
10. What happens in Court?
I might get into trouble in that Court.
11. What do they call this thing here (indicated typewriter)?
Typewriter.
12. What am I going to talk to you about here tonight?
About rape.
Questions 13 to 47 then go on to deal with the events leading up to the alleged rape in which Kumajay told the detectives what he had been doing the previous day and that night. This included playing basketball, which he cannot play due to a disability.
Kumajay then went on to give a detailed and seemingly credible description of the actual rape in which he implicates another young man ('X') as being involved.
65. Did X grab that girl at the same time as you?
Yes.
66. Whereabouts did X grab that girl?
On shoulder.
67. Which shoulder, right or left?
Right.
68. What happened next after you and X grabbed that girl?
X he been take em up dress.
69. When X been take up dress was that girl standing up or lying on ground?
Lying down on ground.
70. Did X take any clothes off that girl?
Yes.
71. What clothes did X take off that girl?
Pants.
72. Did he take them pants right off or little way?
--This far (indicated ankle area of left leg).
73. Were that girl's pants still on her two legs?
One leg.
74. After X took that girl's pants off what happened next?
X root em.
75. Did X take his pants off?
Yes.
76. How did X root that girl?
Put his in right through.
77. Put what right through?
Cunt.
78. What did X put in that girl's cunt?
Prick.
79. Where is that cunt on a woman?
Inside (Pointed with left hand between his legs).
80. That prick, whereabouts is that on a man?
Here (Pointed with left hand to crutch area).
81. Is that woman cunt called GINDEE in aboriginal language?
Yes.
82. Is that man prick called NINDEE in aboriginal language?
Yes.
83. Did you see X's nindee?
Yes.
84. Was X's nindee hard or soft?
Hard.
85.Did X put his nindee in that girl's gindee?
Yes.
86. How many times did he do that?
Two times.
95. Was that girl saying anything while X was having coora with her?
Yes.
96. What was she saying?
Walpri.
97. What was she saying in Walpri?
Help.
98. When X finished coora, was his nindee hard or soft?
Hard.
99. After X finished having coora with that girl, what did you do?
I been do same way.
100. How did you do that coora?
One time.
101. Did you get your nindee in that girl's gindee?
Yes.
110. Did that girl say that you could have coora with her?
No. She said she doesn't like me.
111. Was she yelling out when you had coora with her?
Yes.
112. What was she yelling out?
Help.
113. Did anyone hold that girl's legs?
Yes X.
114. When did X hold her legs?
When I have coora.
115. Did you hold her legs?
No, arms.
116. Have you ever had coora with this girl before?
No, first time.
On the face of it, the whole Record of Interview gives the impression of Kumajay having a genuine understanding of his rights and of him having a wish through conscious free will to fully co-operate and own up to this crime. There was however, one aspect of this case that was not typical and that is the fact that a tape-recording was made of a preliminary conversation between the detectives and Kumajay concerning a prisoner's friend. The transcript of this conversation presents a completely different impression of the situation while Kumajay was being questioned by police:
What is your full name?
Kumajay.
Right, I'm going to speak to you shortly about that girl that has alleged that she has been raped. All right? Before I talk to you, I must tell you that you are entitled to have a friend of yours here present while I talk to you. Do you understand that? Do you understand that?
Yeh.
Do you want a friend of yours present when I talk to you? Do you understand that question? Do you want a friend present, a friend of yours present when I talk to you?
I don't know.
You don't know?
Yeh.
Why don't you know?
I been back to school back.
Now wait a minute. Right I'm going to talk to you about this business right, about this girl, it's ... rights. She is saying that she has been raped by two fellows last night, right? Do you understand that, hey?
No.
You understand that?
Me never seen that person.
Now, look all I'm saying now is.
Yeh.
What I'm telling you, that I'm going to talk to you about this business right?
Yeh.
Right. While I'm talking to you, you are allowed to have a friend here while I'm talking to you about that business, now do you want a friend here?
No.
You don't want a friend here?
Yeh.
Are you sure about that?
Yeh.
Now do you understand what Im going to talk to you about?
No.
Well I'm going to talk to you about 'Y'. She said that two fellows raped her last night and that's what I'm going to talk to you about, right?
Yeh. That doesn't involve me.
All right, I'll ask you questions about that, that business in a minute right. All I want to know and to make sure now is that you want a friend here or not while I talk to you, or are you happy to sit here on your own? You happy to sit here on your own with me, is that right? And this Policewoman, hey, while I talk to you.
Yeh.
Right oh.
From this tape-recording the only thing we can be sure is that Kumajay stated that he did not rape the woman. There is also revealed a degree of frustration on the part of the questioning police at Kumajay's lack of comprehension. A forensic examination failed to adduce any evidence which linked Kumajay with a rape upon the prosecutrix. At Kumajay's committal hearing the prosecutrix, under cross-examination by Counsel for the accused, admitted that she had made the story up. No further evidence was called by the Crown and the Magistrate discharged the accused.
What then of the long, detailed and apparently credible Record of Inverview? One is led to only two possible conclusions. Either the detailed descriptions of the rape and surrounding events came from the detective conducting the Record of Interview and may have been adopted by Kumajay. The Record of Interview contained no fresh information otherwise unavailable to the police. Or Kumajay may have made the story up, under the pressure to tell the detectives what they wanted to hear. Another possible explanation is a combination of the two.
It was hoped by the NT Supreme Court that the provision of a prisoner's friend would overcome the difficulties of interrogating and properly cautioning an Aboriginal suspect. Certainly the situation has improved since R v Anunga. However all too often police allege that the accused did not want a friend with him while he was making his admission. Rarely is evidence of this supported by a tape-recording and perhaps the tape-recording in Kumajay's case gives us the reason why. Often the prisoner's friend is totally inappropriate: the nearest black face available, occasionally a co-accused and often a person just as likely to feel intimidated by the interrogation situation as the suspect. The NT Supreme Court has consistently applied the Anunga Rules. Unfortunately the same cannot be said for the Court of Summary Jurisdiction in Alice Springs which has resisted their application from the outset. To the NT Police Force in Central Australia, the Rules are a nuisance and there is much pressure from the Force to have them watered down. Kumajay's case demonstrates the grave dangers associated with such a proposition. It also shows the dangers of relying solely on a Record of Interview, even one which is signed, for evidence sufficient to convict many of the people who come before the courts in Central Australia.
Clearly the only fail-safe method that would allow the Courts to have confidence in the voluntariness and fairness of Records of Interview is through the tape-recording of the whole interview. The fact that this proposal has been strongly resisted by police forces throughout the country is itself a clear indication of its need.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1982/3.html