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Rees, Neil --- "R v Clevens (Criminal Law -admissibility of confessional evidence- juvenile Aboriginal accused - need for inquiries as to accused's age - need for Police to ascertain accused's race - Anunga Rules not confined to NT)" [1982] AboriginalLawB 50; (1982) 1(5) Aboriginal Law Bulletin 10


R v Clevens

Criminal Law -admissibility of confessional evidence – juvenile Aboriginal accused - need for inquiries as to accused's age - need for Police to ascertain accused's race - Anunga Rules not confined to NT.

R v Clevens

Supreme Court of the Australian Capital Territory (Kelly J)

5 June 1981

Casenote by Neil Rees

The accused, a 16 year old Aboriginal boy, was charged on indictment with breaking and entering a house at night with intent to rape, assault with intent to rape, indecent assault and assault. Counsel for the accused challenged the admissibility of evidence of a conversation between the .accused and two police officers. It was argued that any admissions made by the accused were not voluntary and in the alternative, that the evidence should be rejected in the exercise of the trial judge's discretion.

A number of witnesses gave evidence on the voir dire. Constable O'Rourke gave evidence that he saw the accused at about midnight on 9 June 1980 in the interview room at Woden Police Station. He stated that the accused had been drinking but was sober, that he was wearing jeans with mud on them and that he did not recognize the accused as an Aborigine but thought that he was Spanish.

Detective Sergeant Ninness testified that he fust saw the accused at the police station at 1.50 a.m. on 10 June 1980. He stated that the accused was clad in, wet jeans and was not wearing a shirt. He described the accused as moderately affected by alcohol but agreed that he also exhibited slurred speech, bloodshot eyes, unsteadiness, temper, aggressive behaviour and irrational behaviour.

At 2 a.m. on 10 June 1980 the accused was seen by Dr Buckland who testified that he considered him to be an Aboriginal youth between 16 to 18 years of age. The accused refused to be medically examined by the doctor.

Shortly after the doctor left the accused was provided with some dry clothes and police interrogation commenced. During the interrogation the accused behaved in an irrational manner and at one stage started to cry. After the caution was administered he abused Ninness and started to yell at the top of his voice. The accused was then asked to take part in a recorded interview and answered: 'I do not understand the white man's ways about that. I am just Aboriginal'. He also refused to make a handwritten statement.

Ninness testified that it was not until the accused responded to the request to participate in a recorded interview that he became aware that he was an Aborigine. He had earlier thought the accused to be Mexican or Chilean. Ninness stated that he did not ask the accused his date of birth until he was formally charged. The detective testified that he was aware of the general instruction to ACT police that juveniles should, whenever practicable, be interviewed in the presencee of parents or guardians, or if such persons are unavailable, in the presence of a senior police officer not connected with the case. Evidence was also given that ACT police General Orders require the Aboriginal Legal Service to be notified when an Aboriginal person is being interviewed.

The accused gave evidence that he had consumed one and a half bottles of port and half a bottle of sparkling wine on the evening in question. He also gave evidence that the police had used violence towards him and that he had demanded to see a solicitor. A clinical psychologist testified that the accused was of average intelligence, socially immature and possessed the reading comprehension and spelling ability of a 12 year old. The psychologist stated that it was his opinion that the accused, when confronted by authority figures, was sufficiently immature and lacking in verbal skills to be overawed by his situation and influenced by the people around him.

The trial judge excluded the confessional evidence in the exercise of his discretion. He stated:

Section 68 (3) of the Evidence Ordinance 1971 says,
"The judge has, in a criminal proceeding, a discretion to reject a confession or admission (whether or not it is a confession or admission to which the last preceding subsection applies) made by the person charged if, having regard to the circumstances in which, or the means by which, the confessionn or admission was obtained, the judge is satisfied that it would be unfair to the person charged to admit the confession or admission in evidence."

I found the Police evidence of the degree of intoxication of the Accused at the time of the interrogation unsatisfactory. My conclusion at the end of the evidence was that the Accused was far more affected by intoxicating liquor than the Police were willing to admit. Lacking a sure guide as to the extent of his intoxication, but being aware of many of the oddities of his behaviour on that evening, (the trial proper brought out many more instances) I felt that I could not be reasonably satisfied that he was In a fit condition to be interrogated.

There was, in addition, the extraordinary circumstance where a youth was permitted to remain in a Police Station clad only in wet jeans. True it is that he was given dry clothing shortly after Sergeant Ninness first saw him and on this point I make no criticism of Sergeant Ninness but it seems extraordinary to me that a youth could remain in a Police Station where it might reasonably be expected that he was about to be interrogated for a period of 2 hours when clad only in wet jeans on a rainy winter's night. Such heating as there may have been in the Police Station was obviously insufficient to dry his jeans. There can not be many circumstances more calculated to reduce the capacity of a person whose actions are being investigated by the Police to deal appropriately with his interrogation.

Then, too, there was the fact that his age was not correctly ascertained when it must have been obvious, as it was to Dr Buckland, that he could have been less, as much as 2 years less, than 18 years of age. The inquiry concerning date of birth ought, in my opinion, to have been made. Had that been made, I think the chances are that a truthful answer would have been given. Of course, if a young person persists in giving both date of birth and age which show that he is of or above the age of 18 years even though that be incorrect, I would not be prepared to hold in every case that the Police should assume that he was a young person and act accordingly. All the circumstances have to be taken into account. In this case, however, even at the date of trial almost one year after the incident, the Accused did not appear to be any more than his actual age. Accordingly, the procedure appropriate to the interrogation of young offenders should, in my opinion, have been carried out. Had that been done there would, at the least, have been present a senior Police officer who, not being engaged in the inquiry, would most probably have prevented the interrogation of the Accused at the time when it was done.

I make a similar point concerning the racial origin of the Accused. It is all very well for Police officers to say that they thought honestly that a person was of some other racial origin than Aboriginal. At the same time there are hundreds of thousands of Aboriginals in Australia and their facial characteristics are fairly well known. The Accused was recognised instantly as an Aboriginal by Dr Buckland and perusal of the photographs I have earlier referred to indicate to me that, at the least, an inquiry ought to have been made of the Accused as to whether he was in fact Aboriginal. The photographs seemed to me clearly enough those of a youth of Aboriginal race. I accept the evidence on this point of the Police but I consider the view they adopted to have been unreasonable and not such as to excuse them from the need to ascertain what the race of the Accused in fact was. It may be, having regard to the evidence, that nobody from the Aboriginal Legal Services could have attended at the interrogation of the Accused. But again, it seems to me, it would have been appropriate that a senior Police officer should be present during the interrogation.

Although the question of whether the caution was appropriately administered was debated before me, I was not at the time of the wire dire hearing particularly concerned about it. It was not suggested to Sergeant Ninness that he had already made up his mind to charge the Accused before the question which immediately preceded the caution. In those circumstances, I would not be prepared to find as of course that the Accused was under arrest in an informal but effective way so that a caution should immediately have been administered to him. See Smith v The Queen, [1957] HCA 3; (1957) 97 CLR 100 at pp. 128, 129 per Williams J. I think that there is little doubt that, had the matter been pursued, I would have been ready enough to find that the Accused was in custody in the relevant sense and to have rejected the answer to the question posed immediately before the caution was administered. But I do not think that the rejection of that question would have vitiated the warning so far as the rest of the interrogation was concerned had it been effective. There must be some doubt, too, having regard to the way in which the Accused responded to the caution whether he really understood what was being said to him. It must be said, however, that I did not direct my attention to this particular aspect of the case at the time.

It was pressed upon me that I should follow the rules laid down by Forster J, with the approval of Muirhead and Ward JJ, in the Supreme Court of the Northern Territory in R Y Anunga[1905] ArgusLawRp 117; , (1976) 11 ALR 412.

It is clear that use of those rules which appear at pp. 414 and 415 of the report as guidelines in the interrogation of Aboriginals need not be confined to Aboriginals resident in the Northern Territory but I was not persuaded that they had to be followed strictly in the present case. The Accused gave evidence that he was aware of his right to seek a solicitor when being interrogated or when arrested. This indicated a degree of relative sophistication which does not appear to be that of those for whom Forster J, was concerned. However, I found helpful in my consideration of this matter the seventh rule laid down by Forster J. It reads:

"It is particularly important that Aboriginal and other people are not interrogated when they are disabled by illness or drunkenness or tiredness. Admissions so gained will probably be rejected by a court. Interrogation should not continue for an unreasonably long time."

I refer also to the words of Street J in R v Jef vies [1946] NSWStRp 54; (1947) 47 SR(NSW) 284 at p. 312, cited by Muirhead J in Collins v R [1980] FCA 72; (1980) 31 ALR 257 at p. 275.

"It is the mental condition of the accused, when answering, that is the determining factor in deciding upon the admissibility of such evidence. Even without threats or promises on the part of police, if by his confinement or from other circumstances, for example, exhaustion or lack of comptehension, it appears to the presiding judge that he has been subjected to such a degree of moral suasion on the part of the police in whose power he then was that his answers could not fairly be regarded as reliable, then the judge should exclude the evidence. But the mere fact that in answer to questions he makes admissions that operate to his own prejudice does not make such answers inadmissible. It is a question of degree in each case, and it is for the presiding judge to determine, in the light of all the circumstances, whether the statements or admissions of the accused have been extracted from him under conditions which render it unjust to allow his own words to be given in evidence against him."

I may say that, having regard to some inappropriate answers given by him and to some of his actions which I regard as irrational, particularly his refusal of dry clothes and his yelling incoherently, I formed the view that I could not fairly be satisfied that his answers ought to be regarded as reliable.

In the end, however, no single factor was decisive in my decision. That is not to say that in appropriate circumstances any one of the factors which influenced me might not have been so decisive but I found it unnecessary in this case to decide whether any one of them was.

In summary, therefore, I considered that the failure to supply dry clothes to the Accused at an early stage, if necessary by the use of appropriate authority, the failure to make an appropriate inquiry regarding his birth date, the failure to make an appropriate inquiry regarding his racial origin, the consequent failure to take into account the orders laid down by the authorities for the investigation by the police of allegations against young persons or Aboriginals, the state of intoxication of the Accused, the fact that he had been left for so-long in scanty wet clothing and what I found to have been the uncertainty I felt that his answers were reliable led me to reject the evidence sought to be led by the Crown.

T.V. Chadwick instructed by the Deputy Crown Solicitor appeared for the prosecution.

F.J. Purnell instructed by Neil Andrews of the Aboriginal Legal Service, Cowra, appeared for the accused.

(This case is reported in full at (1981) 37ACTR 57].


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