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Willie Gudabi v the Queen
Federal Court of Australia at Melbourne (Woodward, Sheppard and Neaves JJ)
10 February, 1984
Casenote by Neil Rees
The appellant was convicted in the Supreme Court of the Northern Territory at Darwin of one count of rape. He was sentenced to 2 years imprisonment but was ordered to be released immediately upon entering into a recognizance to be of good behaviour for a period of 2 years. He appealed to the Federal Court against conviction and sentence.
The appellant was an Aboriginal man who was approximately 70 years of age. He had a traditional background, spoke limited English, could not read or write and had no prior convictions. At the trial the Crown alleged that the appellant had coerced an Aboriginal woman into having sexual intercourse with him on a number of occasions by informing her that as she had been touched by a sacred ceremonial object, which she was not permitted to see or touch, she was bound to act in accordance with the appellant's wishes. Eventually the woman told her husband about this behaviour and the matter was reported to the police.
The Federal Court found that the following events took place. On 18 December, 1981 two detectives travelled from Katherine to Ngukurr to investigate the complaint. A few days earlier the detectives had spoken to the appellant in Katherine and informed him that they wished to speak to him after the woman had been interviewed. The appellant was taken to the police station at Ngukurr by Nawundupi, an Aboriginal Police Aide. Nawundupi did not inform the appellant that he was under no obligation to attend the police station. The detectives questioned the appellant about his understanding of his right to remain silent and in the conversation which followed he admitted that he had had sexual intercourse with the prosecutrix. Detective Constable Moseley then informed the appellant that he proposed to conduct a formal interview and the appellant was invited to choose a prisoner's friend.
The first person chosen by the appellant to be his prisoner's friend, declined to act and Mr Arthur Dingle was eventually chosen. Mr Dingle was elderly and had a background similar to that of the appellant. Even though Mr Dingle was present he did not participate in the subsequent interview during which the appellant admitted the substance of the Crown case. The appellant signed a record of interview and at the trial counsel for the appellant objected to the admissibility of the confessional evidence. The trial judge, Forster C.J., allowed the Crown to lead this evidence after finding that the confession was voluntary and that there was no reason for him to exercise his discretion in favour of the defence.
On appeal, counsel for the applicant, argued that there were a number of reasons which should have caused the trial judge to reject the confessional evidence. Counsel argued that as the appellant had been led to believe that he was compelled to attend the police station, all later behaviour was coloured by this erroneous belief. The Federal Court rejected this argument –
Neither, in our view, is any significance to be placed on the circumstances in which the appellant was brought to the police station at Ngukurr. Police Aide Nawundupi belonged to the same tribal group as the appellant and was a much younger man who had been known to the appellant for a considerable time. The evidence does not suggest that the appellant was overborne by anything that Police Aide Nawundupi said to him at the time. It suggests rather that the appellant would have seen the summons to the police station as the carrying out of an arrangement made three days earlier in Katherine. Even if the appellant believed that he was obliged to accompany the police aide to the police station, there is nothing to suggest that his free choice whether to speak or remain silent was affected. There was certainly no intention on the part of any of the police officers to place the appellant under arrest.
Counsel for the appellant also argued that as the investigating police officers had breached a number of the Anunga Rules the confessional statements should be excluded.
He said that an interpreter should have been present during the interviews (guideline [1]), that the arrangements made for the presence of a "prisoner's friend" resulted in the appellant not receiving the necessary support (guideline [2]), that the cautions given by the police officers were inadequate (guideline [3]), that the proceedings were conducted by the police officers in an oppressive fashion (guideline [4]), that the police officers had failed to investigate the matter thoroughly (guideline [5]), and that the appellant was, during the formal interview, disabled by tiredness (guideline [7]). In particular counsel was critical of the fact that the detectives did not inform the appellant that he was alleged to have committed rape and nor did they explain the elements of this offence to him. He also argued that the answers given by the appellant to the police did not demonstrate a satisfactory understanding of the usual caution. The relevant questions and answers were as follows:-
Q. This morning I have talked with Amy and her husband and now 1 am going to ask you some questions about this trouble. Do you understand that?
A. Yes.
Q. You don't have to talk to me about this if you don't want to. Do you understand that?
A. Yes.
Q. Later on Imight tell a court what we talk about and what you tell me might get you in trouble. Do you understand that?
A. Yes I understand white fella law.
Q. Do you understand that you might go to gaol because of this trouble?
A. Yes.
Q. Do you have to talk to me about this trouble if you don't want to?
A. No. I don't have to.
Later in that conversation the following exchange took place –
Q. Willy, this seems to be a very serious matter. What! kill do now is talk to you some more about this and I will write down on this typewriter what we say. Do you understand that?
A. Yes.
Q. Later I mightshow the papers I write on to a court and you might be in trouble. Do you understand that?
A. Yes.
The matter was again addressed at the commencement of the formal interview –
Ql. As you already know I am a Policeman from Katherine and I am going to ask yousomemore questions about that trouble with Amy. Do you understand that?
A. Yes.
Q2. Before I ask you any more questions about this matter I must warn you that you do not have to answerany of my questions ([you don't want to. Do you understand that?
A. Yes.
Q3. You do not have to tell me anything about that trouble with Amy if you don't want to. Do you understand that?
A. Yes I understand.
Q4. Do you agree that before I started this conversation I told you that I would write on this paper everything we said?
A. Yes.
Q5. Do you also agree that I told you that I might later show this paper to a Judge?
A. Yes.
Q6. Can you tell me what a judge is?
A. He listens to that trouble and he judges like an old man of tribe.
Q7. What might he do if he thinks that you have done the wrong thing?
A. Might send me to gaol.
Q8. Do you have to talk to me about this trouble?
A. No, I don't have to.
Q9. What might happen to you if you do tell me?
A. I'll get into trouble, fine or gaol.
Q10. Do you want to talk to me about this
trouble?
A. Yes.
The Federal Court rejected these arguments for the appellant –
We agree with the learned trial judge that neither in respect of the conversation that preceded the formal interview nor in respect of that interview did the police officers act fully in accordance with guideline (3).
For example, before the conversation preceding the formal interview the Constable should have gone on to ask questions such as, "What will happen if you do talk to me?"and "Who might I tell about what you say?" and "What could happen to you?" But the most important question, "Do you have to talk to me about this trouble if you don't want to?" was asked, and the questions numbered 6-10 in the formal record went most of the way towards satisfying the guideline.
Notwithstanding this departure from the guideline, his Honour concluded that sufficient was done to ensure that the appellant was aware of his right to remain silent. Some criticism was made of his Honour's finding in relation to the conversation preceding the formal interview. It was said that his Honour fell short of stating his satisfaction that it had been clearly brought home to the appellant that he had a free choice whether to speak or remain silent and that he had spoken in the exercise of that free choice. We do not think this criticism is justified. In reference to that matter his Honour said "I am satisfied that the accused knew he was not obliged to answer those questions". We do not believe that, in fording as he did, his Honour fell into error.
As part of his argument concerning the adequacy of the caution, counsel for the appellant was also critical of Detective Constable Moseley for his failure tomake clear to the apellant what it was that was alleged against him. In particular Detective Constable Moseley was criticised for not informing the appellant that he was alleged to have committed rape, and explaining to him the elements of that offence. Detective Constable Moseley agreed that he had not used the word rape and had not explained its elements to the accused. He clearly took the view that it would not have assisted the investigation either from the police or the appellant's-viewpoint had he done so. He consistently used the word "trouble" and explained why he did so thus –
"When I talk to Aborigines, and I think a lot of policemen do the same thing when they talk, whether it be murder or anything, they talk about 'that trouble', and it seems to be an accepted terminology - it seems to work well and that's what - well, my practice certainly is, and I think other policemen have - and Aboriginals understand that practice."
The learned trial judge, who has had long experience in this feld, did not regard the course followed by Detective Constable Moseley as casting any doubt upon the admissibility of the confessional statements or as providing any reason in point of discretion for regarding the statements as unfairly obtained and we see no reason to disagree with that view. Particularly in view of the unusual nature of the rape, involving as it did deceit or sorcery rather than force, any more specific description of the alleged offence might well have led to confusion rather than to clarification in the mind of the appellant.
Counsel for the appellant also argued that the choice of Mr Dingle as the prisoner's friend breached the Anunga Rules. He sought to draw from the examples given in the Anunga guidelines of the type of person who might act as prisoner's friend the concept that theprisoner's friend had to be a person who had the capacity and ability not only to assist the person being interviewed to appreciate fully his right to remain silent in the face of questioning by a police officer, but also to guide him, and perhaps even speak for him, in exercising that right. Counsel sought support for this submission in a sentence in the reasons for judgment of Brennan J. in Collins v R [1980] FCA 72; (1980) 31 ALR 257 at p.322 where his Honour said –
"A prisoner's friend is intended to enhance the suspect's ability to choose freely whether to speak or be silent."
The Federal Court stated –
Those submissions raise issues as to the true basis of having a person act as prisoner's friend in relation to a police interview at which confessional statements might be made. The role of prisoner's friend was submitted to be such that it could only properly be filled by a person who could by his presence achieve for the person being interviewed what was referred to as "a practical equality with the average English-speaking person of English descent". It was clear that Mr Dingle fell far short of fulfilling that role. The submission went so far as to place a duty on the investigating police to ensure that an appropriate person capable of fulfilling such a role was chosen as prisoner's friend.
The learned trial judge rejected those submissions. His Honour considered that the essential matter was that Mr Dingle, although he was not the appellant's first choice, was nonetheless the person whom the appellant had chosen to act as prisoner's friend. His Honour expressed himself as being firmly of the view that it was no part of the investigating officer's function to consider whether Mr Dingle was a suitable choice and, if he did not so consider him, to suggest to the appellant that another more suitable person should be chosen. It would, his Honour said, have been impertinent of the investigating officer so to act.
During the course of argument the learned trial judge drew an analogy between the situation to which guideline (2) is directed and the situation encountered by any other person when about to enter an unfamiliar environment. His Honour instanced such a person entering a church of a denomination unfamiliar to him. Such a person it was said would feel more at ease-or, in the language used in the guideline, supported - in that unfamiliar environment by the mere presence of a friend in whom he had confidence even if that friend had no greater familiarity with the surroundings than the person himself.
In dealing with arguments based upon an alleged breach of the Anunga rules two matters must be borne in mind. The guidelines, which have as their object the assistance of investigating officers in conducting their inquiries in such a manner as to be fair to the person being interviewed while at the same time serving the public interest by not unduly inhibiting the investigating prrw ss, are not rules of law. It would be wrong to treat what is said in R v Anunga as laying down principles or rules the breach df which in any respect will result in confessional material being rejected as inadmissible. Equally it cannot properly be said that evidence of a confessional statement will always be admissible if it can be shown that the investigating officers did not in any respect contravene those guidelines. The legal question will always be whether the confessional statement was voluntary in the sense in which that expression is used in the relevant authorities.
Secondly, it must be recognised that the Anunga guidelines were formulated in 1976 in a social climate which differed markedly, in many respects, from that which has prevailed in the Northern Territory for the last two or three years at least. Social conditions and values, and community standards and expectations, have changed and are continuing to change and, while the basic principles underlying the Anunga guidelines remain valid, their application must reflect the changes in society. This is particularly so in the case of the guideline concerning the choice of a prisoner's friend, for that guideline not only lays down the general principle but pairs to describe - albeit as examples only – the type of person who might fulfil the role of giving confidence and support to the person being interrogated. One may accept that in the conditions prevailing in 1976 it might well have been expected that an Aboriginal person being interrogated would be likely to choose a person of the kind mentioned. But we think it is clear that the types of persons were not included because of any notion that, if chosen, they would bring about "a practical equality with the average English-speaking person of English descent." They were included as examples of persons whom an Aboriginal suspect might choose as being persons in whom he might have confidence and by whose presence at the interrogation, and availability for discussion, he might feel supported.
If it be accepted, as we think it must, that the guideline as formulated in 1976 provided no principal role for the investigating officer to play in the choice of the prisoner's friend, it would seem to us to be a retrograde step in 1983 to re-formulate the guideline so as to provide the kind of role for the investigating officer that would necessarily be involved in the acceptance of the submissions put to the Court by counsel for the appellant. It would be a retrograde step because it would fail to take account of what counsel himself told us was the almost invariable practice . of Aborigines - a practice confirmed to us by Muirhead J. in circumstances which we mention below. In our view the choice of prisoner's friend must be left entirely to the person about to be interviewed, once it has been explained to him that the purpose of the friend's presence is to give support or help. We think it would be useful if the person to be interviewed were told, before making his choice, that he will be free to talk to his friend, and ask advice, in the course of the interview.
What we have said about police officers not trying to influence the choice of prisoner's friend does not mean that an investigating officer should not give such assistance as he is able to an Aboriginal suspect in securing the services of a prisoner's friend, provided he gives that assistance at the express request of the suspect. The overriding consideration must always be that the prisoner's friend is a person selected by the Aboriginal suspect in the exercise of a free choice.
We do not think that Brennan J. in the sentence which was relied upon from his reasons for judgment in R v Collins, above, intended to suggest a basically different approach. There was no doubt that in that case the prisoner's friend had not been chosen by the suspects in the exercise of a free choice and, because of his role as police interpreter, he was not available for private discussion. Those were the matters that were the subjects of his Honour's criticism. Neither Bowen C.J. nor Muirhead J. adverted to the matter in their reasons for judgment.
- In our opinion it has not been shown that the learned trial judge misdirected himself in any material respect on the issue of voluntariness or that his decision was wrong.
Having ruled that the confessional statements were voluntarily made, the learned trial judge considered whether, as a matter of discretion, he should exclude the evidence on the ground that its admission would be unfair to the appellant. His Honour considered the matters relied upon by counsel, but concluded that.those matters, taken alone or in combination, did not establish that the admission of the statements would work unfairness to the appellant.
The appeal was dismissed.
Mr Cohn McDonald of the North Australian Aboriginal Legal Aid Service appeared for the appellant.
Mr B. Tiffin appeared for the Crown.
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