Aubrey v The Queen B17/1995 [1996] HCATrans 117 (15 March 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B17 of 1995

B e t w e e n -

FREDERICK AUBREY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

TOOHEY J

McHUGH J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 15 MARCH 1996, AT 11.59 AM

Copyright in the High Court of Australia

MR J.A. GRIFFIN, QC: May it please the Court, I appear with my learned friends, MR A.C. SMITH and MR D.C. RANGIAH, for the applicant. (instructed by Paul Richards & Associates)

MR M.J. BYRNE, QC: May it please the Court, I appear with my learned friend, MR L.J. CLARE, for the respondent. (instructed by D. Field, Solicitor to the Director of Public Prosecutions (Queensland)).

MR GRIFFIN: Your Honours will have seen that the applicant was 16.5 years of age at the time of the event and at the time of the interview. He lived in an Aboriginal community at Cherbourg and had lived there all of his life. A record of interview was conducted with him on a charge of attempted murder. The victim subsequently died and the charge was altered to murder. The interview was conducted in the presence of a Mr David Thompson.

Your Honours, if it was an essential prerequisite of the admissibility of the record of interview, as we submit it was, that the applicant receive advise from someone capable of advising him of his rights, it does not seem open to dispute that Mr Thompson was not such a person. Our friends go no further than to assert in their outline that he was found by the trial judge to be an independent adult person in whom the applicant had confidence and that was undoubtedly correct. But that is as far as it went. He had no knowledge of the rights of a suspect when an interview was taking place, and we remind your Honours of what was said in Collins by the present Chief Justice of this Court. He said, "A prisoner's friend is intended to enhance the suspect's ability to choose freely whether to speak or to be silent." Mr Thompson plainly did not meet this criterion and, as the President said at page 48 of the application book:

He was in no better position than the appellant himself to decide what was in the appellant's best interests.

Your Honours, it is accepted that rules such as the directives in the present case are not rules of law in the sense that any breach of them necessarily vitiates a confession. There is, of course, now a good deal of authority to the effect that they are rules of law in the sense that a police officer acts unlawfully if he commits a breach of them but, although they are not rules of law in the sense that any breach necessarily vitiates a confession, it has long been uncontested law, of course, that a breach of the rules forms part of the material upon which first the trial judge resolves the issue of voluntariness and secondly, and perhaps more often, determines whether, in the exercise of discretion, the confessional material ought to be excluded. It is submitted that both the letter and the spirit of the rules in this instance require that the applicant be treated as a person under a disability and that the effect of that could not be reversed by the trial judge's conclusion, based on her own observations of the applicant on the hearing of the voir dire, that the applicant did not appear to be disadvantaged.

As to his falling within the letter of the rules, he was in fact an Aborigine, within the meaning of rule 4.54A(c), which is set out at the foot of page 3 of our outline, which begins:

Aborigines and Torres Strait Islanders who come within the category of persons under disability will be questioned in the presence of a solicitor or other legal adviser -

and so on. So, we submit, he was in fact under a disability, if only because he was a juvenile.

Now the next proposition is that the proper implication to be drawn from a rule such as that, and the associated rules, is that a record of interview with such a person will only be admissible in evidence if it is preceded by a reasonable explanation to the suspect of his rights and, in particular, his right to remain silent, so that the court can be satisfied that the suspect was aware of his rights in a realistic sense, and it is submitted that the rules should not be approached narrowly in this respect. They should be viewed as being underpinned by a general proposition that such a person will be in a position of considerable disadvantage when interviewed by a white person in authority. There is insufficient recognition of that proposition in the analysis of the trial judge and that is, in effect, the basis of the dissent of the learned President in the case.

It is further submitted that in accordance with the view expressed by the President, her Honour took too narrow a view of the operation of the directors in so far as she referred to the fact that no evidence was led directed to language and cultural matters. The President pointed out that this statement was in accord with established practice, but said that perceptions of the judicial role in this respect were widening. But he then drew attention to the problems associated with adducing evidence on this subject, if the accused does have to call evidence. Presumably such evidence would necessarily entail an expert testifying as to matters such as the submissiveness, suggestibility and the extent of the intellectual grasp of the suspect.

It would require experts to apply tests of speech habits to the extent to which they are relevant in the making of admissions or their credibility, and if one starts from the standpoint that there are cultural problems associated with the reliability of confessional statements made by Aborigines who are interrogated by persons in positions of authority, then, as the learned President put it, a recurring necessity to produce evidence of those cultural factors would be quite impractical.

TOOHEY J: But the problem with the application, as I see it, Mr Griffin, is that the principles of law are well established and they have been dealt with by this Court on a number of occasions. If special leave were granted, would an appeal involve anything more than consideration of the application of those principles to the facts in the case?

MR GRIFFIN: Your Honour, in my submission, the principles are not well settled. The special leave questions, that we have set out in our summary of argument, in our submission, are not settled and, in particular, certainly not settled by this Court. There have been statements made in a number of authorities, particularly by single judges, that relate to those issues, but these special leave questions that we have identified have never been addressed and, in our submission, it is because of the uncertainty that surrounds those questions that this disparity emerges between the judges of the Court of Appeal.

TOOHEY J: Well, look, for instance, at your draft notice of appeal on 139 - and I appreciate it is a draft notice - but the ground of appeal is that:

The Court of Appeal erred in holding that the trial judge was correct in allowing admissions made by the Applicant in a record of interview into evidence.

It is pretty hard to distil from that some question of principle that calls for examination, or re-examination, by this Court.

MR GRIFFIN: That is perhaps because the notice of appeal is too generally expressed. The issues, however, are more appropriately identified in the application for special leave and the outline of submissions.

KIRBY J: As I understand it, your principal two points are (1), that you should not have to call evidence, that judges can take in some way judicial notice. Is that one of the points?

MR GRIFFIN: That is one of the two points, your Honour, yes.

KIRBY J: And (2), in relation to somebody present, that it has to be a real defender of the interests of the Aboriginal accused that will ensure that it is brought home to the mind of the accused that we have a right to remain silent in our legal system and to advise them, whereas this particular person was not the pastor who was first asked, but a person who sat as mute as the applicant.

The problem as I see it is that whatever rules were fashioned, there would have to be an understanding that there are circumstances where people will want to have their say. One gets an impression here that your client really wanted to tell his version and that is a very common feature of the confessional situation and one which the common law also takes into account, that people do want to have their say and give their version.

MR GRIFFIN: Of course, your Honour, that is one of the problems in this situation, where it is often asserted where you have a young Aborigine like this who is interviewed by white people in authority, they will feel obliged to give their version.

TOOHEY J: No, that is not quite the way. It is often put, rather, that people will simply agree with what is being put to them in a situation where someone is being interviewed by a person in authority, but that is not the situation that we are faced with here. The situation is, as Justice Kirby has put it to you, that there seemed to have been a real willingness on the part of the applicant, and understandably so in the circumstances, to make quite clear to the police what his position was.

MR GRIFFIN: That was the willingness of the applicant after a discussion with a person who was not qualified to tell him what his rights were. That is why the President said, in effect, it was worse than it would have been if it were a situation in which he was not receiving any advice at all because he was receiving advice, and no doubt encouragement, from an unqualified person who appears to have encouraged him to proceed with this intent of his to engage in the record of interview.

But one comes back to the proposition that the decision by the trial judge is underpinned by those two principles. First of all she says that she can determine that the applicant is not under a disadvantage by her viewing him in the witness-box and that, in order to avoid that consequence, the applicant has to give evidence. Secondly, that the applicant does not have to have the assistance of someone who was capable of telling him what his rights are.

TOOHEY J: Are you saying that it was part of the ruling by the trial judge that in order to displace any impression her Honour may have formed of the applicant, some evidence needed to be adduced? Is that what she said?

MR GRIFFIN: She referred to the fact that there was no evidence to the contrary - - -

TOOHEY J: Could you show us where that passage is?

MR GRIFFIN: Page 9, line 18. That then in turn is relied on by the two judges in the majority. The matter is dealt with in paragraph 27 of our outline. The trial judge suggested that evidence was required of language or cultural matters such as to constitute a disability in the accused.

And then on appeal, Mr Justice McPherson said that there was no evidence to suggest that, in the circumstances of the applicant's age, background and fluency in English, the answers of the applicant were unfairly obtained. That is at page 69. And Mr Justice Davies referred to the trial judge's conclusion as to matters such as the applicant's command of English and whether he was overborne and said that there was no convincing reason as to why an appellate court should not accept that assessment - that is at page 62.

TOOHEY J: Yes, I must say I do not read that as importing some onus on the accused so much as part of the general picture that faced the trial judge in this case. I note on page 9, line 11, she says:

It was initially submitted that the applicant suffered a language disability and the residents at Cherbourg spoke a form of Creole, even though English was their primary language. After viewing and hearing the tape, that submission was withdrawn, as I understand it.

I take that to mean that the trial judge was satisfied there was no linguistic problem in the applicant communicating. That is not to say that there may not have been other difficulties, but at least so far as language was concerned, it does not seem to have been a consideration.

McHUGH J: This is hardly a suitable vehicle for determination of these general issues, Mr Griffin, when you have at page 14 of the record the dual finding that the accused was keen to have his account given to the police and that he sufficiently understood that he need not answer questions if he did not wish to.

MR GRIFFIN: Yes. Well, I cannot take the matter any further, if the Court pleases.

TOOHEY J: Thank you, Mr Griffin. We need not trouble you, Mr Byrne.

This application seeks to raise important questions of principle in relation to the interrogation of suspects who are minors or who are under a disability by reason of cultural differences. These are important questions, but the issue here is whether there is sufficient reason to doubt the correctness of the approach taken by the majority in the Court of Appeal and the conclusion they reached.

Having regard to the entirety of the evidence, including the applicant's obvious desire to give his account of events - and in that regard I refer to the ruling of the trial judge which appears on page 14 of the application book in which she concludes:

that the accused was keen to have his account of what had occurred the previous evening heard by the police and that he sufficiently understood that he need not answer questions if he did not wish to do so -

in the light of those matters, we are not persuaded that there was any error in the approach taken by the majority. The application for special leave to appeal is therefore refused.

AT 12.16 PM THE MATTER WAS CONCLUDED