Goode, Matthew --- "Still Jailing the Poor - Two Recent Decisions on the Criminal Law as Applied to Aboriginals in South Australia" [1984] AboriginalLawB 5; (1984) 1(10) Aboriginal Law Bulletin 10

• Still Jailing The Poor-Two Recent Decisions On The Criminal Law As Applied To Aboriginals In South Australia

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Still Jailing the Poor -

Two Recent Decisions on the Criminal Law as Applied to Aboriginals in South Australia

by Matthew Goode

The second case involved two Aboriginal juveniles found by police in a street of a workingclass neighbourhood at 4.30 a.m. in possession of an electronic calculator marked "Floreani Brothers" for which they could give no reasonable explanation. They were told that they were not under arrest and asked if they would accompany police to Floreani Brothers which was nearby. The youths agreed and were taken to the premises, which had been broken into, and detained until the manager arrived in another police car. The youths were searched, and questioned, cautioned and questioned further about various items found in their possession. They made damaging admissions, and were separated and taken to other breakings where they made further damaging admissions. They were again told that they were not under arrest and asked to accompany police to the police station. Both were asked whether they wished to have parents or other responsible persons present and both declined. They each completed inculpatory records of interview.

The youths were jointly charged with four counts of breaking and entering, one count of setting fire to a school, and theft of the calculator and money. Despite the fact that they were juveniles, they were tried in the adult jurisdiction. They pleaded guilty to the offences involving Floreani Brothers, but not guilty to the other counts, challenging the admission of evidence of the confessions made and the police conduct. They were unsuccessful and appealed from conviction.

The basic ground of appeal was that the admissions of the appellants ought to have been excluded in the discretion of the trial judge. The point of the objection was that the appellants had been held in illegal custody from the time at which they had been held separately at Floreani Brothers. Allegations of beatings and involuntariness had been made and rejected at trial, and this finding was not challenged on appeal. Hence the Court of Appeal faced three questions: first, whether the appellants were in fact under arrest at any point prior to their delivery at the police station, in which case the detention under arrest would be contrary to the provisions of the Children's Protection and Young OffendersAct,1979, (S.A.); second, if the detention, or any part of it, was illegal, whether the admissions made whilst in illegal custody ought to have been excluded by the trial judge; and third, even if the detention was legal, whether the questioning of the appellants in the absence of a responsible adult required the exclusion of the records of interview.

Thus far, this may have been a description of any case which may or may not have involved Aboriginals, or juveniles, or both. The Court of Appeal rejected the appeal, and it is in their reason for so doing that one must look for particularly instructive points.

Mitchell and Matheson JJ. formed a majority; White J. dissented. The majority held that the appellants had not been under arrest in fact until they were formally arrested upon completion of their records of interview at the station. White J. held that the appellants were in fact under arrest from the point at which they were separated, searched and questioned at the site of the Floreani Brothers breaking.

The competing considerations on this question were as follows. The majority relied upon the fact that the police had clearly informed the appellants at least twice that they were not under arrest, that the appellants had been in trouble with the police before (one admitted involvement in about 50 offences and the other about 30 offences) and hence each "knew the ropes", and the old saw that the finding was open to the trial judge, he had all the evidence before him, he heard he witnesses, and his finding ought not lightly be interfered with. White J. relied upon the separation of the appellants, the fact that each was watched, guarded, and subjected to a deal of underlying compulsion, the failure of the police to match the statement that they were not under arrest with a statement that they were free to go, and the atmosphere of general compulsion.

The opinion of White J. is surely right. The reasons of the majority are not persuasive. The fact that the police informed the appellants that they were not under arrest is relevant but hardly conclusive. It is one thing to say that the words of arrest constitute a legal arrest, it is quite another to say that their denial does not constitute an arrest. Were it otherwise, the law would not recognise the notion of de facto arrest. Against the repetition of a formula, there was in this case the separation, guarding and watching of the youths, and the atmosphere of routine coercion. White J. is right to remark that voluntary compliance in these conditions demands that the police make it clear that the suspect is really free to go, matching these words with conduct which makes the choice a genuine one. Otherwise, the empty repetition of the formula will become a farce. It was, moreover, perfectly clear and accepted by Mitchell J. that the police were engaged in the deliberate avoidance of the law in their formula in this case.

Deference to the original function of the trial judge is surely misplaced when a matter of law rather than a matter of original discretion is concerned. So far as the experience of the youths with the law is concerned, White J. noted:

In this case, the trial judge said that the prior experience of each youth with the police on many occasions would have tended to assist their understanding that they were free not to comply. It may only be a matter of opinion, but I would have thought the contrary. If what happened in this case is any criterion, prior experiences like this ... would, I think, have tended to condition the youths to believe that they were not free to refuse to comply, were not free to go."

There is no need to labour that point.

The answer to the first question conditions the second. If the youths were voluntarily assisting the police with their inquiries then there is nothing upon which to base a discretionary exclusion of their admissions in the matter of custody. Amazingly, however, Matheson J. admitted:

"I think I might have found that each of them had been arrested at the end of their respective interviews at the premises of Floreani Bros., but by that time each of them had made fairly comprehensive admissions, and even if what had happened thereafter had been excluded, I do not think their chances of acquittal would have been improved."

This passage defies explanation. If the appellants were under defacto arrest from the conclusion of the interviews at Floreatii's, then why were they not under arrest at some earlier point? If detention from that point was illegal, when did it become legal again and why? Since this was a major point of disagreement between Mitchell and White JJ. why was it not considered worthy of resolution? And why is it conclusive that some guess as to the reactions of the jury may be made in the event that the subsequent evidence should have been excluded? Even if that guess is right, which may be strongly disputed and is dependent upon the answers to the other questions posed above, if there is one thing that is clear about the exercise of the Bunning v. Cross discretion, it is that the probative value of the evidenceobtained is irrelevant to the principal matters of judicial integrity and control of police misconduct.

White J. would have allowed the appeal on the ground that the appellants confessed while they were in the illicit custody of the police at the time in question. Virtually all of the admissions had been obtained while the appellants were under illegal arrest for the purposes of interrogation. The majority position was, of course, that the appellants had confessed while voluntarily helping the police with their inquiries. For the majority, the remaining question was whether the records of interview should have been excluded on the ground that the appellants had been questioned in the absence of an independent responsible adult.

The majority were of the opinion that this fact did not warrant interference in he trial judge's conclusion of admission. They relied upon first, the waiver by the appellants of the opportunity to contact parents; secondly the previous experience of the appellants as evidence of their knowledge of their rights; and thirdly the lack of any startling error to justify interference with the discretion of the trial judge.

There is in this issue more scope for the deference of the appellate court to the discretion of the trial judge than is apparent in the previous issue. It is certainly the practice of appellate courts to refuse to interfere with the discretionary admission of illicitly obtained evidence in the absence of egregious error by the trial judge. On the other hand, as a reason for dismissing the appeal, this reason suffers from lack of content. Moreover, while the behaviour of the police was, on the majority reasoning, in accordance with police standing orders on the subject current at the time, it was not in accordance with the police standing orders at the time of the appeal which had been altered as a result of judicial criticism. It may be unfair to subject the police to subsequently formulated standards, but it must not be forgotten that the basis of the criticism was that the previous guidelines were inadequate and that in the case at bar, there was a deliberate attempt to subvert those rules.

The relevance of the previous experience of the appellants has been dealt with above. Examination of the record produced in the judgment of Matheson J. reveals the exact extent of the waiver concerned. Both youths were asked if they would like their parents to be contacted so that they could attend at the police station. One responded that his parents were deaf and dumb. If literally true, this would surely dictate further inquiry. If metaphorical, it is surely indicative of the helplessness of the youth and his cynicism about the proceedings. The latter alternative is confirmed by his response to the further inquiry whether he would like another named person contacted: a bald negative. The second youth was also asked if his parents could be contacted, to which he responded that his father was in prison and he had not seen his mother for five or six years. He was then asked whether the police could contact anyone else to which he replied that he did not want anyone and would go with the police.

This may constitute a technical waiver of the "right" to have a responsible adult present at questioning, but placed in context can hardly be described as convincing renunciation of the protection thought by many to be necessary in such cases. In each case, the protection to be afforded by the summoning of parents would be nonsensical. The police did not proceed beyond a general inquiry whether anyone else would do: there was, for example, no explicit reminder of the availability and status of a lawyer or the Aboriginal Legal Service. In short, the policing of the right to have another present was very much pro forma.

The unconvincing waiver taken together with the successful attempt by police to subvert the spirit of the law on arrest by creating a coercive situation short of arrest should have led to the exclusion of the evidence.

The point of this case for those concerned with the way in which the law deals with the particular problems of Aboriginals in conflict with the police is that much of the protection of the criminal law assumes a certain context for the offender. In this case, the rule about whether one is under arrest or not in fact operates on the assumption that the suspect will take the words "you are not under arrest" at their face value and will understand that those words mean "you are free to go". This assumption may be right in the case of the literate white adult, may be unlikely in the case of any juvenile, and is even less likely in the case of the Aboriginal juvenile. The controversial nature of the assumed context surfaces in this case in the dispute concerning the relevance of the extensive prior experience of the youths with the police.

Similarly, the rule concerning the "right" of juveniles to have a responsible adult present at questioning may serve as a perfectly adequate safeguard in a social context in which the juvenile has concerned and available parents. Where that is not so, the protection simply falls flat on its face. Moreover, if the enforcement of the protection is to be subject to the "right" of the suspect juvenile to waiver, then all of the former assumptions come into play. The protection is there because of the view that juveniles cannot make sensible decisions when confronted with the weight of police routine. It is ridiculous then to make that protection conditional upon a juvenile decision made under the influence of police routine. The result will be to protect those who need the protection least.

The last word belongs to the dissenting White J.:

"It is understandable that the police should, in the public interest, wish to clear up as many crimes as these youths might be prepared to admit to, caught as they were red-handed, with some evidence possibly linking them with some recent breaks. However, convictions of culprits might be achieved at too high a price, especially young deprived culprits. Most crimes of breaking and entering are not sheeted home to the actual offenders. The non-detection of two or more offenders does not weigh as heavily in the public interest as the exact observance by police officers of the laws concerning arrest, especially of underprivileged and vulnerable persons like these."