Rees, Neil --- "MD (a child) v McKinlay (Appeal - attempt to break and enter - admissibility of confessional evidence -- child - Anunga Rules - failure to notify solicitor of police interview)" [1985] AboriginalLawB 62; (1985) 1(16) Aboriginal Law Bulletin 9

• Md (A Child) V Mckinlay
• Appeal-Attempt To Break And Enter-Admissibility Of Confessional Evidence – Child-Anunga Rules-Failure To Notify Solicitor Of Police Interview.

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MD (a child) v McKinlay

Appeal - attempt to break and enter - admissibility of confessional evidence – child - Anunga Rules - failure to notify solicitor of police interview.

MD (a child) v McKinlay

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

6 September, 1984

Casenote by Neil Rees

The appellant, a 15 year old Aboriginal boy, was convicted by a Children's Court of attempting to break and enter a dwelling house with intent to commit a felony, to wit stealing.

On 2 December 1983 the appellant was shot and later taken to hospital in Alice Springs. The appellant remained in hospital for about a week. During this time Mr Corker, a solicitor from the Central Australian Aboriginal Legal Aid Service (CAALAS), had a telephone conversation with Detective Symons of Alice Springs police about the incident in which MD was shot. Mr Corker asked that he or another solicitor be present when MD was interviewed by the police in relation to the incident. Detective Symons agreed with this request. Mr Corker stated in evidence (which was disputed by Detective Symons) that the detective promised to contact CAALAS before the interview took place.

A few days later MD was interviewed by Detective Symons in the presence of Mrs E. H. who was regarded by the appellant as his mother. Neither Mr Corker nor any other CAALAS officer was informed of the interview or present when it was conducted. During the interview the appellant stated that he had spoken to a CAALAS field officer about the incident in which he was shot but declined the presence of the field officer during the police interview. He then proceeded to admit that on the evening he was shot he had attempted to break and enter a building with intent to steal. The prosecution of the appellant depended almost entirely on this confessional evidence which was presented by way of record of interview.

The solicitor who appeared for the appellant in the Children's Court challenged the admissibility of the confession. The voluntariness of the confession was not challenged but it was argued that the evidence should be rejected in the exercise of the magistrate's discretion. Mr Tippett, the solicitor for the appellant, argued that it was unfair to the appellant to admit the confession because Mr Corker should have been informed by the police that the interview was to be conducted. It was further argued that the confession should be excluded because it was obtained contrary to the spirit and intent of the Anunga Rules and because it was improperly obtained. The magistrate admitted the confession into evidence and the appellant was convicted. The appellant appealed to the Supreme Court of the Northern Territoryand argued that in determining to admit the confessional evidence the magistrate failed to properly,exercise his discretion and that when exercising that discretion he took into account extraneous matters.

Nader J reviewed the evidence given by the CAALAS solicitor, Mr Corker, during the Children's Court hearing. He stated:

Mr Corker, in giving evidence upon the voir dire, said that he had had no direct communication with the appellant before 16 December the day of the confession. The transcript of evidence shows that Mr Corker was cross-examined by the learned magistrate as follows:

HIS WORSHIP: Q. - Just assuming that you had been contacted, I take it that you've read the record of interview that subsequently ... ?
A. - No, I haven't. I've glanced at the first page of it, I haven't read it.

Q. - Had you ever actually spoken to D before 16 December?
A. - No, I hadn't spoken to him. I'd received instructions through the legal aid field officers who had spoken to him and taken a statement from him.

Q. - Well, what advice then would you have given him in relation to the interview with the police?
A. - Well, I'd say that that's a matter for solicitor/client privilege, but to answer your Worship's question I'd say I would have advised him that he had a right to remain silent and I would have also fully advised him as to the consequences of any response he might have made to questions that the police had put to him.

Q. - What if - were you - well, that might be instructions. I take it than that you would have been at pains to see that he did not admit the commission of any offences himself?
A. - No, sir, I don't think that's correct. I would have advised him as to his rights as to whether he wished to make responses to questions or not and advise him as to the consequences of what he might say, but I certainly wouldn't be at pains to stop him making admissions if he wanted to.

These questions were to say the least of them, irrelevant to what the magistrate had to decide. The fact that a solicitor is likely to advise a client to refuse to answer questions does not make it proper for a police officer to cause an interrogation to take place in the absence of the solicitor contrary to the wishes of a suspect. Such conduct has been called 'reprehensible': Driscoll v R [1977] HCA 43; (1977) 137 CLR 517 at 521; [1977] HCA 43; 15 ALR 47 at 51. However, the questions were asked without objection and they, with their answers, form part of the evidence. No objection was taken before me, on the hearing of the appeal, to those questions and answers. It is relevant that Mr Corker would have advised the appellant of his right not to answer questions, of the consequences of what he might say, and whether he wished to answer questions. He certainly would not have been at pains to stop the appellant making admissions if he wanted to.

Neither the appellant himself, nor Mrs E. H. was called on the voir dire. They were in a position to give evidence concerning a number of matters in relation to the interview. An effect of this is that I can readily accept the evidence of Detective Symons on its face. They could have given evidence as to whether they wanted a solicitor present and, if so, whether their failure to ask for one was due to any constraint they may have felt. There is no such evidence or allegation.

Nader J. found that the magistrate had wrongly exercised his discretion. He stated:

There was some cross-examination of Mr Corker directed to testing his assertion that he had received instructions to act for the appellant. Mr Corkerwas allowed, without objection, when giving his evidence-in-chief to use the broadest generalities. He said he had received instructions through the CAALAS field officers who had been to see the appellant. Not only was no objection taken to that simple assertion but it was not tested in the sense that no questions were asked as to precisely what was said to Mr Corker by one or both of the field officers. Some cross-examination was directed to the question, but I cannot see that it went so far as to justify a finding that CAALAS was not retained by the appellant. Certainly, upon the whole of the evidence there was nothing that would have justified Detective Symons concluding that CAALAS was not properly instructed; indeed he does not contend that there was. The matter that was left completely untested was what was transacted between the field officers and the appellant. The magistrate was, and this court is, bound by the evidence that instructions had been received through the field officers, referred to above. It was also left obscure by the evidence whether CAALAS had been retained for any matter other than that directly concerning the shooting. It is not clear whether the offence, the subject of the proceedings before the magistrate, was included in the retainer. The very existence of such an offence did not become known until the appellant spontaneously admitted it at the interview. However, it remains that the only evidence was that CAALAS had received instructions; the breadth of the retainer was never specified.

As I said earlier, there was also cross-examination by the learned magistrate himself of Mr Corker as to what he would have done if he had been present at the interview. I have already referred to Mr Corker's answers. Search as I might, I have found nothing in the transcript of proceedings before his Worship that could amount to evidence that 'the defendant would have been advised not to make any statement' or that he would 'have frustrated the efforts of the police in investigating the shooting offence'. Even if that were a legitimate consideration, it was not open on the evidence before the magistrate to make such a finding.

It follows that this court is bound to find that the learned magistrate's discretion as to whether to admit the confession miscarried. As I understand it, I am now required to exercise that discretion on my own view of the evidence before the magistrate.

The question arises whether the absence of the solicitor from the interview has caused any actual or even potential injustice to the appellant. Unless there was at least some potential injustice to him, it would be empty verbiage to say that the admission of the confession was unfair. The solicitor would not have advised the appellant not to answer questions. The confession was voluntary in the relevant sense; indeed, there was no issue as to voluntariness. There was no actual impropriety or unfairness in the way the questioning proceeded. There is no basis, therefore, for thinking that the end result of the interview would have been any different if the solicitor had been present. The appellant had the comfort of the presence of the person he regarded as his mother. He was offered the presence of David Renahan, the field officer of CAALAS, to whom he had spoken. He rejected that offer. He was by contrast a stranger to Mr Corker. Either he or Mrs E. H. could have asked for Mr Corker or a solicitor from CAALAS, but neither did so.

There was no evidence that either of them felt constrained not to make such a request. It is possible they did not want Mr Corker present. I observed earlier that neither was called on the voir dire. This is significant, too, when the onus of proof, in respect of discretionary exclusion, lay on the defendant.

The remaining issue, therefore, is whether the failure by the police officer to adhere to an arrangement with the solicitor for the appellant, underwhich the solicitor was to be informed of the time and place of the interview, is of itself sufficient to justify the exclusion from evidence of the confession made at that interview.

Nader J. reviewed the relevant authorities and stated:

In the present case the evidence that the police officer had not adhered to an arrangement with the solicitor was admitted. Therefore, the precise point raised in Driscoll does not arise here. The question here is, such evidence having been duly admitted, what weight should be given to it. As I said the effect of that kind of evidence carries the instant case no further; there is no issue of voluntariness, no issue as to whether the confession was made and no issue as to its terms. In short, there is no issue as to its reliability.

In respect of Ireland, Bunning v Cross and Cleland, Cleland was the culmination of the line of cases in so fares the principle embodied in them applies to confessional evidence. Although each of them approved a principle of discretionary exclusion of evidence, Ireland was the only one in which the evidence in contention was held to have been wrongly admitted. In Ireland, Barwick CJ was inclined to the view that the trial judge had exercised no discretion and had resolved the question of admissibility of the evidence by reference to its relevance alone. Bunning v Cross makes it clear that the principle involved in Ireland is not related simply to ensuring fairness to an accused.

It is necessary to distinguish clearly between the 'unfairness' question and the 'competing public interest' question. It was made clear in Bunning v Cross that the one may not involve the other and the considerations relevant to one may be distinct from those relevant to the other. The learned magistrate did not apply his mind to the question of 'competing public interest'.

Cleland is directly concerned with confessional evidence. The applicant was arrested shortly after 1.00 pm on 9 April 1981. He was held in custody till about 7.30 pm, when he began to be questioned by police. The questioning took most of the evening. It was common ground that from 5.30 pm the applicant's detention was unlawful because he was not taken before a justice or magistrate. The interrogation, therefore, took place while the applicant was in unlawful custody. This led the court to consider the nature of the discretion of the trial judge to exclude confessional evidence otherwise admissible. The High Court held that the older discretion to exclude based on the unfairness of admitting the evidence had not been watered-down by recent cases and that the newer doctrine found in Ireland and Bunning v Cross applies to confessional as well as other evidence. It was said in Cleland (43 ALR) at 624-5; (57 ALJR) at 18, that an illegal act attending a confession maybe such as to call into question its voluntariness, or, if its voluntariness is not in issue, the fairness of using it. If the illegality does not affect either the voluntariness of the confession or the fairness of using it, a discretion to reject it on the ground that it was unlawfully obtained remains.

There is one other matter that has caused difficulty. Ireland, Bunning v Cross and Cleland were all concerned with cases where the conduct of the police associated with the obtaining of the evidence was unlawful. In one sense, therefore, those cases are authorities only where unlawful conduct has occurred. However, it would be a foolish disregard of reality not to notice that there are many references throughout those decisions to evidence obtained, unlawfully, improperly and, even, unfairly. It must be inferred, from the fairly indiscriminate use of those words that the relevant vice in the conduct of those charged with law enforcement is whatever right-minded members of the community would see as requiring discouragement. I have been concerned whether the conduct of Detective Symons, even if it were a conscious and deliberate breach of undertaking to Mr Corker from being present at the interview, is caught by those cases.

I have not been able to decide that it is. The evidence so equivocal on thequestion whether Detective Symons in all the circumstances of the interview (including his knowledge that Mr Corker had never spoken to the appellant, that Mr Renahan was the one who had spoken to him, that the appellant's mother was present, that the offer to have Mr Renahan present was declined and that no request was made to have Mr Corker present), ought nevertheless to have brought in Mr Corker. If I am mistaken in this, and if such an obligation existed, it is certainly not possible to find that Detective Symons knowingly disregarded the obligation.

I have considered the matters seen by the High Court in Bunning v Cross as significant: the seriousness of the illegality and the degree of culpability of the police officer responsible for it; the ease with which it might have been avoided; the comparative seriousness of the alleged criminal conduct of the appellant and of the alleged impropriety of Detective Symons.

Upon a balance of all the factors, I would not reject the confession in the application of the 'competing interests' principle.

Nader J. then proceeded to reject the appellant's argument about the operation of the Anunga Rules:

R v Anunga [1905] ArgusLawRp 117; (1976) 11 ALR 412 (the Anunge Rules) does not in this case provide a basis for rejecting the confession. The evidence is that the appellant was 'very outgoing' and that he had attended high school for a year. Again, the absence of any evidence on the voir dire left this evidence unchallenged. In relation to the Anunga Rules it is relevant that Mrs E. H. was present at the interview.

It would be a mistake to construe these reasons as implying that police can wilfully disregard an arrangement made with a solicitor for the solicitors presence at an interview with any confidence that a confession emanating therefrom will be admitted into evidence. This case has been decided on its particular facts and may have been significantly affected by the lack of evidence on the voir dire from either the appellant or Mrs E. H. I cannot speculate as to what they might have said if they had given evidence.

The appeal was dismissed.

Mr J. Tippet of the Central Australia Aboriginal Legal Aid Service appeared for the appellant.

Ms L. Jenkins instructed by the Northern Territory Crown Solicitor appeared for the respondent.

This case has been reported at (1875) 31 N.T.R. 1.