Rees, Neil --- "Coulthard v Steer (Appeal - larceny of a motor vehicle - admissibility of confessional evidence - Anunga Rules - understanding of the caution - necessity of Courts of Summary Jurisdiction adhering to precedent of Supreme Court)" [1982] AboriginalLawB 5; (1982) 1(3) Aboriginal Law Bulletin 8

• Coulthard V Steer
• Appeal-Larceny Of A Motor Vehicle-Admissibility Of Confessional Evidence-Anunga Rules-Understanding Of The Caution-Necessity Of Courts Of Summary Jurisdiction Adhering To Precedent Of Supreme Court.

---

Coulthard v Steer

Appeal - larceny of a motor vehicle - admissibility of confessional evidence - Anunga Rules - understanding of the caution - necessity of Courts of Summary Jurisdiction adhering to precedent of Supreme Court.

Coulthard v Steer

Supreme Court of the Northern Territory at Alice Springs (Muirhead J)

3 December 1981

Casenote by Neil Rees

On 18 August 1981 the appellant, an Aboriginal man, appeared before a Court of Summary Jurisdiction at Alice Springs on a charge of larceny of a motor vehicle. He pleaded not guilty. The only prosecution evidence of significance was an unsigned record of interview between the appellant and a police officer, conducted in the presence of a prisoner's friend. Counsel for the appellant in the Court of Summary Jurisdiction (Ms S. King of the CAALAS) argued that the record of interview was inadmissible because the prosecution had not proved that the admissions were made voluntarily. It was not disputed that the police officer had not complied with the third guideline for police set out in R v Anunga [1905] ArgusLawRp 117; (1976) 11 ALR 412, which provides in part:

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 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, andd should not proceed with the interrogation until it is clear the Aboriginal has apparent understanding of his right to remain silent. Most experienced police officers in the Territory already do this.

The Magistrate, Mr Barritt, admitted the confessional evidence and convicted the appellant. He was sentenced to 9 months imprisonment. The conviction was set aside by the NT Supreme Court on appeal. Muirhead J reviewed the facts and then stated:

After the hearing of this appeal at Alice Springs, it was allowed. I then published short reasons but observed that I would publish further reasons in due course. The reason I have taken this course is not because the matter is one of complexity but because many of the remarks attributed to the Stipendiary Magistrate and apparently made by him during the course of argument indicate a lack of undestanding of the Anunga Rules, their background and the reasons for their enunciation. The Stipendiary Magistrate also appears to have difficulty in understanding that in the exercise of his functions he is required to follow and be guided by relevant principles of law, procedure and practice enunciated by superior courts. The concept of precedent is vital to the administration of justice in this country and its principles are in fact the foundation of the common law to which the Stipendiary Magistrate referred so often in his many exchanges with defence counsel. Some of the remarks made by the Stipendiary Magistrate were impliedly critical of this court and indicate an erroneous belief that the Anunga Rules made new law. His references to dire social consequences resulting from their implementation were unfortunate and inaccurate.

In the course of the hearing the Stipendiary Magistrate had the benefit of reasoned arguments put forward by the appellant's counsel who patiently dealt with the matters put to her and who stated the law with accuracy. I do not intend to deal with the Magistrate's many' unusual observations but I set out in a schedule hereto some extracts from the general transcript of proceedings taken in Alice Springs on 18 August last which serve to explain why I have found it necessary both to express my concern and to emphasise how necessary it is that those exercising judicial powers apply the law and not their own philosophies. I reiterate the situation as follows:

1. The admissions of any persons in custody will be admissible only if proved to be voluntary and subject to a general judicial discretion based on principles of fairness.

2. Proof of voluntariness rests upon the prosecution. The onus is the balance of probabilities.

3. Proof of voluntariness requires proof that an accused at the time he spoke truly understood his right to speak or remain silent.

4. The traditional caution administered to the majority of Aboriginal people in this Territory proved to be inadequate to establish voluntariness. Thee affirmative answers - so often the monosyllabic 'yes' - to the cautionary questions were found deceptive; it was 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. More was needed to ensure the words and meaning of the caution were understood by Aboriginal people. Hence the Anunga Rules which were directed to police officers, not to stifle or impede the police function, but to promote efficiency of investigation. These Rules have not changed the law relating to the admissibility of evidence.

The experience of this court is that they have been understood and well applied by the police. The efficiency of investigation has been thereby advanced. The rationale of the Rules will apply to others of different ethnic backgrounds, with language difficulties or other disadvantages.

In the present case at the commencement of the conversation the police officer purported to administer the caution in the following terms –

'Ql. What is your full name?

Peter Coulthard.

Q2. Where do you live all the time?

Dennis place.

Q3. How old are you?

20.

Q4. Did you go to school?

Yes.

Q5. Can you write?

Yes.

Q6. Can you read?

Yes.

Q7. Do you understand all that I say?

Yes.

Q8. I am going to ask you some questions about last night, and about drinking sherry and beer last night atHermannsburg. Do you understand what I am going to talk to you about?

Yes.

Q9. You do not have to tell me if you do not want to but only by your own free will. Do you understand that?

Yes.

Q10.I am going to write down on this paper what you say and I will show this paper to a magistrate in the Court, and you might get into trouble. Do you understand that?

Yes.

Qll.What do you think might happen to you in the Court?

Might get into trouble alright.

Then followed questions about another offence. Later he was asked questions about another matter involving a motor vehicle and a reminder 'caution' was administered in the following terms:

'Q32.I am now going to ask you some questions about that car. You do not have to tell me anything unless you want to, and you might get into trouble in the court. Do you know that?

Yes'.

Eventually the police officer opened the subject of the offence in respect of which the present appeal lies.

'Q54.I am now going to talk to you about a white coloured Falcon ute that was painted red and was found at your father and brothers' camp. Do you understand what I am going to talk to you about?

Yes.

Q55.Before you tell me anything I must again tell you that you do not have to answer my questions or tell me anything if you do not want to as I will write down what you say and show it to the Magistrate and you might get into trouble. Do you understand that?

Yes'.

The above responses are typical of the interrogations experienced before the Rules were enunciated, no effort being made to test the true understanding. In the matter of R v Jungala and Jagamara (Unreported, delivered 21 March 1980) the Chief Justice set out in full the words of the caution which he refused to admit in evidence. This authority was referred to the Stipendiary Magistrate and as was stressed by the appellant's counsel, the caution in the present case gained nothing by the comparison. There was, as I have said, no evidence before the magistrate to justify the admission of this record of interview. The appellant admitted he had been to school, that he could read or write. But there was nothing to suggest a degree of sophistication or understanding which merited the admission of the alleged confession in the face of the objection. In Stevens v Lewis (Unreported Judgment, delivered 31 October 1979; No. 872 of 1979) I dealt with a Special Case Stated by the same Stipendiary Magistrate. I found in the particular circumstances the stating of the case was beyond power, but I then made a few observations in the hope they would be of assistance. I attempted to dispel the notion that the Anunga Rules were absolute or that they applied to every situation involving the questioning of Aboriginals. Many in this Territory are not subject to the disadvantages which this court had in mind when the Rules were pronounced and the Chief Justice did not suggest they were universal. But in the absence of evidence as to these issues (which may justify admission of confessions where the Rules have not been adopted) such confessions should not, in the face of the accused's objections, be admitted in-evidence. Here, as I have said, the Rules were not adopted, the admissions should not have been received in evidence and it was for that reason that I set aside the conviction and the sentence of imprisonment.

The extracts set out in the schedule sufficiently illustrate the Stipendiary Magistrate's views and confusion as to the Anunga Rules. Whilst it seems to me he misconceives their function it is necessary to observe that he does not advance the interests of justice by stating or implying that this court was in error. That decision has been considered and applied in other superior courts. (See e.g. R v Collins & Ors. (1980) 31 ALR 258).

Lord Hailsham made reference to precedent in Broome v Cassell & Co. [1972] UKHL 3; (1972) AC 1027 at 1054: The fact is, and I hope it will never be necessary to say so again that, in the hierarchical system of courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers'. See R v Gronert (19751976) 13 SASR 189.

To speak in the manner attributed to the Stipendiary Magistrate in this transcript tends only to cause confusion and to undermine respect for the law itself.

SCHEDULE (Comments by Barritt S.M. from the transcript of proceedings at Alice Springs on 18 August 1981).
1. ...
2. ...
3. ...
4. You look, at the situation, these cases do not seem to arise in Darwin, it may well be that in Darwin they - I just do not know, I have sat up there at different times and have never encountered them, but the other day I was out at Papunya and I was speaking to the senior constable out there and he was saying - I was asking him about petrol sniffers and that sort of persistent problem. He said: 'I can't do anything. I have a council on my back to do things and I get these lads down. and they have been petrol sniffing for ages. Their level of literacy was bad at any stage and you start explaining a caution to them s6 ass to question them in relation to an offence and conceptually it is impossible to get them to understand it'. Admittedly the petrol sniffers there are probably less literate than anyone in this area in their age group, and we are talking about children, 13, 14, and he said you will try to get the concept through to them of the caution. He said you cannot even get to that stage so you just let them go and forget about it and forget about the offence that you were questioning them about. The offence I suppose he might look on as not all that important. you go out there, you see the problem, it is generally a sort of blind attack on a building or else it is break and enter thee local store. The local council view it seriously, the local community, because it is slowly driving the community bankrupt, or their store bankrupt. They will not be able to get any stock. So they view it seriously but they turn around and say `What can we do?' 'Why do you not do something about it?' He says 'I cannot do anything about it because of this difficulty I have. I will go and pick them all up again and interview them all again and the same thing happens.'

Basically the real concept is as to whether the confession is obtained fairly at common law. There are real sociological problems about judges who no doubt for the best of motives I am sure, try to lay down better rules, but there are grave sociological problems. (Transcript pp. 28 and 29).

5. The law as it applies or as it is set out in cases in the Northern Territory is all over the place, because a lot of these decisions where they have made no reference to the common law principles of the admissibility of confessional evidence, though clearly it would seem they have not turned their mind properly to the principles of the admissibility of evidence. That is where the problem is. (Transcript p. 31).

6. All right, then look at this situation: if the butcher, baker or the candlestick maker at Hermannsburg walked down the road and spoke to your client and said 'Where did that car come from' and you said 'I have stolen it.' 'Where did you steal it from?' You said so and so. That evidence would be admitted, there would be no problems about it. But because the person is a policeman who asks the question, it is not admitted unless all this cautioning has been undertaken. (Transcript p. 32).

7. The difficulty about this, where does Anunga's Case sit in the law? I have rationalised it to the position as I explained it this afternoon. I would be quite happy if an authoritative statement was made in it in the clearest of terms, because in the clearest of terms I am quite sure each judge of the Supreme Court has rejected confessional evidence based only on the submission that one or other rule had not been complied with. They have not gone through the intellectual exercise of bringing that back to the application of the principles of common law.

If that is the law in the Northern Territory, that each one of those rules have to be literally complied with, well and good, I would know where I stand or sit, and so would everyone else. I would think that if that was applied literally within 12 months there would be the greatest exodus from the Northern Territory that anyone could imagine. That would be my personal opinion. I think that sociologically it was not thought out with any great realisation of the problems that beset the community in the Northern Territory and each individual little community in the Northern Territory, because to get the whole lot of the Anunga's Case applied in the one case, to get them all done perfectly, is about as easy as it is to work out one of those cube blocks that they are selling around town at the moment'. (Transcript pp. 32 and 33).

Mr D. Norman for the Crown.

Mr H. Spooner of the CAALAS for the appellant.