CATCHWORDS Criminal law - Evidence - Murder - Interrogation of young Aboriginals while under arrest - Re-enactment - Photographs - Claim custody unlawful and that police neglected Anunga Rules concerning prisoner's friend and method of administering caution - Whether confessions voluntary - Whether confessions should be excluded in the exercise of discretion - Whether adequate directions to jury concerning agreement to commit a crime and withdrawal therefrom. Police and Police Offences Ordinance, sub-s.34(1). MARK COLLINS, KEVIN STUART, JOYLEEN WILLIAMS and JOSEPHINE WOODS v. THE QUEEN Nos. NTG 23-25 of 1979; No. NTG 27 of 1979 Coram: Bowen C.J., Muirhead and Brennan JJ. Sydney IN THE FEDERAL COURT OF AUSTRALIA ) No. NTG 23 of 1979 ) No. NTG 24 of 1979 NORTHERN TERRITORY DISTRICT REGISTRY) No. NIG 25 of 1979 ) No. NTG 27 of 1979 GENERAL DIVISION ) ON APPEAL from a the Supreme Court of the Northern Territory BETWEEN: MARK COLLINS, KEVIN STUART, JOYLEEN WILLIAMS and JOSEPHINE WOODS Appellants AND: THE QUEEN Respondent ORDER JUDGES MAKING ORDER: Bowen C.J., Muirhead and Brennan JJ. DATE OF ORDER: 20 June 1980. WHERE MADE: Sydney. THE COURT ORDERS THAT: 1. The appellants' respective appeals against conviction be dismissed. 2. The appellants' respective appeals against sentence be stood over generally. 3. All parties have liberty to apply. IN THE FEDERAL COURT OF AUSTRALIA ) ) NORTHERN TERRITORY DISTRICT REGISTRY) Nos. NTG 23-25 of 1979 No. NTG 27 of 1979 GENERAL DIVISION ON APPEAL from the Supreme Court of the Northern Territory of Australia BETWEEN: MARK COLLINS, KEVIN STUART, JOYLEEN WILLIAMS and JOSEPHINE WOODS Appellants AND: THE QUEEN Respondent Coram: Bowen C.J., Muirhead and Brennan JJ. -_— oo JUVE 1980. REASONS FOR JUDGMENT BOWEN C.d.: The facts are set forth in the reasons for judgment of Muirhead J. and Brennan Jd. I shall not repeat them, except so far as may be necessary in discussion. Each of the appellants, Mark Collins, Kevin Stuart, Joyleen Williams and Josephine Woods, was represented by Counsel at the trial and on the appeal. On the appeal the question raised was whether confessions by the appellants which took the form of a re-enactment accompanied by photographs were rightly admitted at the trial. The main argument on appeal was that each confession should have been rejected on the ground that it was not voluntary or, that if it was voluntary, the learned trial Judge should have excluded it as a matter of discretion. Voluntariness Before a confession may be admitted in evidence in a criminal trial, it must be proved by the Crown on the balance of probabilities, that it was voluntary (Wendo v. The Queen (1963) 109 C.L.R. 559). This means substantially that it has been made in the exercise of the person's free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary. But it is also a definite rule of the common law that a confessional statement cannot be voluntary, if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made. An inducement may take the form of some fear of prejudice or hope of advantage exercised or held out by the person in authority (McDermott v. The King (1948) 76 C.L.R. 501 at p.51l; The King v. Lee (1950) 82 C.L.R. 133). The learned trial Judge, after a lengthy hearing on the voir dire extending over some weeks, held that the confessions were voluntary. In my opinion it has not been shown that he misdirected himself in any material respect or that his decision was wrong. Stating the matter in a summary way, it was put to us on behalf of Mark Collins that the interrogation at Huckitta Station was unfair. It was submitted that it was conducted while Mark Collins was being subjected to false imprisonment; in breach of the requirement of notice to the Director of Welfare under Standing Order 34 of the Northern Territory Police Force; in breach of the precautions in dealing with children suggested by common sense and the authority of The Queen v. C. ([1976] Qd.R. 341) and The Queen v. M. ((1976] Qd.R.344); ain breach of the requirement to notify as soon as practicable after arrest the Aboriginal Legal Aid Service (Circular Memorandum No. 11 of 1975 of the Northern Territory Police); in breach of the Anunga Rules (The Queen v. Anunga (1976) 11 A.L.R. 412) relating to the provision of a prisoner's friend and also relating to the giving of an appropriate caution and ensuring that the caution was understood. It was also pointed out that Mark Collins was taken from Hart's Range Police Station to Huckitta Station in custody and without being told why he was being taken there; that he was a child and an Aboriginal who would not readily understand or feel able to exercise his right to remain silent. It was submitted that, having regard to the cumulative effect of these matters, the trial Judge was in error in holding he was satisfied the confession of Mark Collins was voluntary. The list of complaints is formidable. They were put at some length to the trial Judge but at the end of the day he held he was satisfied that the confession by Mark Collins was voluntary. At the time when the police and Mark Collins engaged in the re-enactment, the accused was in the circumstances plainly vulnerable to pressure. The question was whether he was able to exercise a free choice to speak or to remain silent; whether his will was overborne. The evidence was all one way that there was no overt duress, intimidation, or undue pressure. There was no inducement held out by any person in authority which might have led Mark Collins to entertain a fear of prejudice or hope of advantage. A caution was given. This was heard by him in English and in the appropriate Aboriginal language and apparently understood. The procedure laid down in the Anunga Rules of asking him to tell the police what was meant by the caution, phrase by phrase, and of not proceeding with the interrogation until it was clear that the accused had apparent understanding of the right to remain silent was not followed. This was a matter to be taken into consideration, but in the end it was for the trial Judge to decide on the whole of the evidence given on the voir dire whether the Crown had established that the confession was made in the exercise of a free choice. It is true that all the accused were Aboriginals and very young and were, as I have said, at the time vulnerable to pressure. It is also true that the evidence, even apart from the re- enactment, relating to their actions at Amoonguna and afterwards demonstrated some degree of self-reliance and initiative, if not cunning. During the long period of the voir dire, they were present in court under the observation of the trial Judge. Tape recordings taken while they were being interviewed were listened to by his Honour, although these did not get into evidence before the jury since he rejected them. It appears to me it was open to the trial Judge to hold that no pressure was in fact exerted on Mark Collins and that he spoke at the enactment in the exercise of a free choice. His Honour concluded the confessions were voluntary. I do not consider he was in error in doing so. A subsidiary point was raised that there was no specific caution regarding the taking of photographs. In my opinion, the photographs, which were still shots explanatory of various aspects of the re-enactment, stand or fall on the question of admissibility with the confessional material. Counsel for the other appellants adopted the arguments put by Counsel for Mark Collins, with some additions. Thus, in the case of Kevin Stuart it was argued that because the others had already taken part in a re-enactment when Kevin Stuart was called upon to do so, there was additional pressure upon him. In the case of Josephine Woods evidence concerning her retarded mentality was stressed. It was also submitted on behalf of Josephine Woods that the manner in which the caution was administered to her in her Aboriginal language amounted to an inducement and that her confession should be excluded for this reason as not being voluntary. The evidence on this is set forth in the reasons for judgment of Brennan J. It does not appear to me that there is any substance in the submission. In the result, I am not persuaded the learned trial Judge was in error in holding all the confessions were voluntary. Discretion Even though a confession is held to be voluntary, there still resides a discretion in the trial Judge to exclude it, if it has been obtained by ""improper" or "unfair" methods. The question in considering the exercise of the discretion is whether in all the circumstances it would be unfair to use the statement against the accused (The King v. Lee (1950) 82 C.L.R. 133). It was strongly argued before us, as it was before the trial Judge, that the confessions in the present case should in any event have been excluded in exercise of this discretion. The difficulties arising from the exigencies of time and Place faced by the police in performing their duty of investigating a felonious death are appreciated. However, I would not wish anything I say to weaken the force of the rules, which have been laid down to be observed by the police in the interests of fairness. I am of opinion that the police failed to give due observance to these rules and treated them too lightly. Nevertheless, all relevant matters appear to have been put to the learned trial Judge and to have been considered by him. The discretion is one which the law vests in him. I am not persuaded that he has in any respect misdirected himself. He does not appear to me to have allowed extraneous or irrelevant matters to guide or affect him, or to have mistaken the facts or failed to take into account some material consideration. In my opinion the Court should not interfere with his exercise of his discretion. Withdrawal A further argument put on behalf of Joyleen Williams and Josephine Woods was that the learned trial Judge had failed adequately to direct the jury as to the law relating to acting in concert and withdrawal from an agreement to commit a crime. Reference was made to White v. Ridley (1978) 52 A.L.J.R. 724. The evidence on this point suggested that while each was a party to a discussion about shooting the old man, each later told Mark Collins not to shoot him. His Honour dealt with this matter in his summing up to the jury. He explained the onus resting upon the Crown of proving beyond reasonable doubt the entry into the agreement to shoot the old man, the remaining a party to that agreement and the carrying out of it. His Honour referred to submissions of the Crown and of Counsel on the question of withdrawal. There was no error in law with the directions which he gave. In my opinion there is no substance in the argument. - In the result, in my opinion the appeals' should be aismissed. see I certify that this and the 6 mage net aeete a '.ue co7ty-of the precec 17 yur . 1 FX t > = — 'y" his Honor. Brut tae Deere 1 Mea Douay 1 u i. 1 a g tale VutLED vase, 1 - 2 aba sf fe "on ' ' / i ft | ff i \ aa { i. + ate. of | ; boy | Teted.gah 6 fp aN IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY OF AUSTRALIA REGISTRY GENERAL DIVISION No. NTG 23 of 1979 No. NTG 24 of 1979 No. NTG 25 of 1979 No. NTG 27 of 1979 ON APPEAL from the Supreme Court of the Northern Territory of Australia Nos. 127-131 of 1979 BETWEEN. MARK COLLINS KEVIN STUART JOYLEEN WILLIAMS JOSEPHINE WOODS Appellants (Defendants) AND: THE QUEEN Respondent (Plaintif£) oo Juni (Wo MUIRHEAD J. REASONS FOR JUDGMENT On 17 August 1979 after a very lengthy trial at Alice Springs in the Northern Territory, the four appellants were convicted of murder by verdict of a jury. They have all appealed to this Court against the judgments of conviction. The jurisdiction of the Federal Court to determine appeals against such conviction was recently dealt with in Duff v. The Queen (Unreported - Delivered 6 December 1979) and requires no further mention. BACKGROUND Huckitta Station lies about 175 miles north east of Alice Springs, a remote area of this country. On the morning of Sunday, 31 December 1978, two men were at the homestead, one, Quinton Webb, a part owner of the property, and a younger man, a station hand by the name of John Ransome. At about 10.30 a.m. a Ford Falcon panel van arrived. This contained the four appellants and one, Janice Edwards. It was driven by the appellant Stuart, a part aboriginal youth, 13 years of age. The other appellants Mark Collins, 12 years of age, Joyleen Williams, 14 years of age and Josephine Woods, 24 years of age, were passengers. They and Janice Edwards, a woman 28 years of age, who was in the van, were aboriginals who had travelled overnight from near Alice Springs. They sought and obtained petrol, supplied by Ransome and they continued on their journey. Soon after, they returned, Edwards driving the vehicle with two flat tyres, one of which was damaged. They sought assistance. They were told a new tyre and tube were required. Ransome did what he could to help them and he spoke by scheduled radio link to Mount Riddock Station at 12.30 p.m. It is evident they were informed as a result of this call that the tyre would be sent out that evening. This, so far as the appellants were - concerned, involved a substantial delay to their journey, a delay, bearing in mind their activities the previous night, they probably had good reason to avoid. The appellants, who were all strangers to Quinton Webb and Ransome, waited at the station. The situation was quiet and normal. The appellants at times grouped together and at times wandered around singly or in pairs. At about 1.00 p.m., Ransome and the woman, Edwards, who had met previously, left the homestead. They returned about 45 minutes later to find the appellants had departed Janice Edwards drew Ransome's attention to a pool of blood near the house. Investi- gating further, Ransome found Webb dead in the kitchen. The panel van in which the party had arrived was still there, but a Toyota, a four-wheel drive vehicle used on the station - and its ignition key which was kept inside the house, were missing. Blood stains inside and outside the house suggested, as was later proved, that Webb died from a bullet wound. With some difficulty due to defective equipment, Ransome eventually made radio contact in a round about way with the police. Constable David Picker, the only police officer stationed at the Harts Range Police Station, about 35 miles from Huckitta, arrived at about 6.30 p.m. He spoke to Janice Edwards who named those with whom she had arrived that morning and told him something of their earlier activities and movements, information which was confirmed by subsequent investigation and which was basically common ground at trial. The appellants and Edwards had, during the night of Saturday, 30 December 1978, broken into a store and dwelling at Amoonguna - an aboriginal settlement not far to the east of Alice Springs. They stole various items including a Winchester .22 rifle, jewellery, money and food. The van was taken without the owner's consent and after being driven around Alice Springs, the party proceeded up the Plenty Highway, petrol being obtained at Yambah Station en route. It was later proved that the bullet which killed Webb was fired from the stolen Winchester. Picker arrested Janice Edwards for the offence of illegal use of the panel van. She was not then regarded as a murder suspect. Her subsequent arrest on a charge of murdering Webb followed some answers she gave when a police officer was later taking a routine statement from her which suggested she may have been a party to Webb's killing, having deliberately lured Ransome from the scene, She was tried for murder jointly with the appellants and she was acquitted by the jury. It was determined with the aid of Janice Edward's tracking abilities that the Toyota had been driven from the Station in the general direction of Queensland, still apparently heading away from the appellant's homes at Amoonguna. An hour or so later, Constable Sims and Constable Cox arrived from Alice Springs by light aircraft. A rudimentary investigation then indicated that Webb had probably been shot outside his dwelling, had made his way inside, losing blood as he did so, and he died on his kitchen floor. Naturally enough, the facts led to immediate suspicion that the appellants, or one or more of them, were involved and Constables Picker and Sims set out to find them. After travelling about 45 km they stopped a vehicle travelling towards Huckitta from Queensland and driven by the witness, Harold Lankin. The appellants were found in the vehicle. Lankin had picked them up some distance to the east. The vehicle stolen from Huckitta Station had broken down and the appellants continued their journey for some distance on foot, leaving the vehicle in the centre of the road. Lankin, after picking them up, stopped to remove the vehicle to the side of the road, noting its number as he did so. The weather was hot, the appellants were tired and thirsty and Lankin gave them water. The rifle, with which Webb was shot, was still in the group's possession and was recovered by Constable Picker as he removed them from Lankin's vehicle. He gave evidence that each appellant admitted illegal use of a vehicle (or vehicles) and they were promptly arrested and placed in the police vehicle. From that time they were in custody. The police and the appellants then proceeded east to the abandoned vehicle and it was noted that it had been "hot wired", i.e., the ignition leads bared and manually joined to effect ignition without the use of the key. They then returned to Huckitta Station where by this time three other police officers had arrived, including Sergeant Chung, a member of the C.1.B., and Sergeant Sandry, a member of the forensic section. The appellants and Janice Edwards were then conveyed to the Harts Range Police Station at about 11.15 p.m., where they were charged with illegal use of motor vehicles and placed in the two available security sections of the basic police station complex, males in one section, females in the other. They were supplied with bedding. At about 12.45 a.m. on New Year's day, 1 January 1979, Constable Picker and Sergeant Chung woke the appellants and had a brief conversation with them in English when they were asked questions concerning their families, friends and dialects. It was common ground that the appellants could all converse in English and in fact, this was Kevin Stuart's sole language. As a result of that conversation the police correctly understood that Collins, Williams and Woods spoke Aranda dialect and wrongly understood that Edwards spoke Warlpiri. The information they had already gleaned from Janice Edwards and from Lankin was no doubt sufficient to indicate that the appellants lived at or about Amoonguna. Probably as a result of those conversations, Constable Lloyd, a police officer on duty at Alice Springs police headquarters, was despatched to Amoonguna where he made certain enquiries and where he conversed with the father of Joyleen Williams who was an important person at Amoonguna and president of the management committee of Central Australian Aboriginal Legal Aid Service. At about 9.00 a.m. the following morning, 1 January 1979 - another hot day - the appellants and Janice Edwards were taken to Huckitta Station. The same morning the police drove one Bobby Armstrong, an aboriginal who speaks Aranda and Dick Jungala, an aboriginal who speaks Warlpiri, to Huckitta. After experiencing some mechanical trouble the vehicle arrived. Monday, 1 January 1979, was a public holiday. The Alice Springs court office was closed, no sittings of the courts being scheduled. There was a conflict of evidence as to the police activities at Huckitta during the morning which assumed importance. It is common ground that the appellants and Janice Edwards were released from the police vehicle upon their arrival and they were allowed to remain together seated as a group under a tree in the shade. Police enquiries continued and the body of Quinton Webb was removed. During the afternoon each of the appellants was asked to tell and to demonstrate to the investigating officers what had occurred the previous morning when Webb was shot. Each appellant was cautioned and the caution was interpreted to them in Aranda by Bobby Armstrong. Each, it was said by the police, agreed to participate. They told and showed what had occurred, each appellant being taken from the group during the process, but being at least sporadically in view of the others including the civilians at the station. Photographs were taken which served clearly to explain the appellants' indications to the police and these were in evidence. The police did not specifically seek the permission of the appellants to take these photographs, nor was any reference made to the fact that photographs would be taken when the cautions were allegedly administered. Bobby Armstrong, the interpreter or "prisoner's friend", accompanied each appellant and the police during each re-enactment. Collins admitted shooting the deceased and he demonstrated how it was done, taking deliberate aim at the deceased who was sitting on a tank stand, reading. The others made admissions which were of importance to the Crown in its submission to the jury that the others, including Janice Edwards, acted in concert, that the shooting was a planned affair. And so it was, that at the end of the day, Monday 1 January, the appellants had described to the police what occurred and the police at that stage had evidence which should have been sufficient for them to determine future steps There can in my view, be no doubt that the circumstantial evidence, the discovery of items such as the cartridge case found where Collins allegedly demonstrated the shooting, tests of the rifle and the other forensic evidence, were wholly consistent with the matters told and indicated to the police by the appellants. The trial judge admitted evidence of the demonstration. The appellants challenge his finding about those demonstrations arguing that they were but a farce, the culmination of rehearsals carried out earlier that day which were part of the "softening up" process initiated by the police. On the evening of 1 January, the appellants were returned to Harts Range Police Station and during the following two days they were kept there whilst detailed interviews were conducted and recorded. No court was convened at Harts Range and the delay in bringing the appellants before a Justice was substantial. The trial judge in the exercise of his discretion excluded from evidence the records then taken, the tapes then recorded. He gave reasons for that decision. He found that the admissions then made were voluntary but he excluded them in the exercise of his discretion, mainly because in his view following the investigations conducted at the scene of the killing on 1 January, he considered the appellants' continuing detention without being brought before a Justice of the Peace, not only -10- unlawful, but unlawful to an extent which justified the exclusion of those otherwise relevant, probative and voluntary confessions. I have mentioned this as a matter of history. The primary issue contended by the appellants upon the appeal was that the trial judge erred in admitting the "ye-enactments" of 1 January as the evidence did not support his findings that they were voluntary. I have commented that after the re-enactments and their investigation on 1 January the investigating police officers had sufficient evidence to determine future steps, indeed by then, assuming the veracity of the re-enactment they could have had little doubt as to what had occurred. But it was equally relevant in my view for the trial judge to take into account how little was known that morning before the re-enactment took place. Many questions remained. Was the deceased's death an accident? Were the appellants or any of them present when the shooting took place? If so, did one or another shoot Webb and if so, why? Where were all the appellants at the time Webb was shot? Was there evidence of conspiracy, concerted action? If the latter, did the joint plan survive until the shooting? Which rifle was involved? What, if any motive was there? Were any other visitors to the homestead involved? Not only did such questions arise, the solution to those questions was an urgent requirement. The objective facts first found by the police suggested Webb had been shot, possibly -1l- murdered. The events took place during the New Year holiday period, in a lonely area of the Territory, a long way from the nearest centre, Alice Springs, serviced by radio schedules, not by telephone. People living in such an area are vulnerable to ill-intentioned visitors. Of the five aborigines arrested, two were adult women, three were juveniles. Where lay the guilt, if any? The interests of justice and, at the time, for all the investigating officers knew the interests of the appellants, or one or other of them, demanded that the investigation proceed without delay. The appellants were the obvious persons to turn to for information as the police must have been quickly aware that neither Edwards nor Ransome could assist beyond relating what took place before their departure and what they found on their return. It is necessary to mention this as the main challenge concerning the police conduct on 1 January relates to their action in taking the appellants from Harts Range Police Station to the nearby Huckitta Station. It was said the only proper and lawful course was to remove them to Alice Springs where they could be brought before a Justice of the Peace upon the charge of the illegal use of motor vehicles and where they could utilise the services of the Central Australian Aboriginal Aid and, in the case of the juveniles, the protection of the Director of Child Welfare in that centre. But it cannot be overlooked that the primary responsibility of the police that day was to investigate the killing of ~12- Webb - and to promptly investigate his death. It is but common sense to observe that provided the safeguards the law has developed to ensure fair dealing with suspects are observed, a prompt investigation is likely to produce the most accurate and valuable evidence and is most likely to sheet home responsibility where it lies. In the present case for instance, the discovery of the cartridge case ejected by Collins where he indicated he fired the fatal shot, is but an example. TRIAL AND VOIR DIRE After their arrest on charges of murder, following the interviews which took place on 2 and 3 January (ultimately excluded from evidence), the appellants and Janice Edwards were committed for trial on charges of murder. At trial before a jury at Alice Springs each accused was separately represented by counsel. The trial lasted from 12 June 1979 until 17 August 1979. Most of the court's time was devoted to hearings on the voir dire when the admissibility of the "re-enactments" referred to and the subsequent records of interview were challenged. As essential voluntariness was under challenge the trial judge quite rightly directed that the Crown should carry the onus of proof of voluntariness and should begin. The voir dire hearing relating to the admissibility of the appellants' admissions commenced on 14 June 1979 and concluded on 2 August 1979. His Honour then ruled -13- that the records of interview would not be admitted, but evidence of the re-enactments could be introduced. He gave short extempore reasons for rejecting evidence of the interviews and he stated he would give reasons for his decision as to the "re-enactment" in due course. These were delivered after the completion of the trial, a practice not infrequently followed in criminal trials when one, as trial judge, is concerned with getting on with the trial and minimising inconvenience to the jury. Furthermore, whilst the trial is in progress the less said by the judge as to credibility of witnesses, the better. I will deal later with the issues on the voir dire examinations, but there were two matters of interest. The first, clearly of some significance to the trial judge, was that after the days and days of cross examination of the police officers and of the unfortunate aboriginal Bobby Armstrong, recruited by the police as "friend" of the appellants, who identified with them by race and language, but not by clan or past association, not one of the accused gave evidence in the absence of the jury, of any lack of understanding of the right to silence, of any fear, hope, sense of oppression or confusion. They gave no evidence of being overborne, of speaking because they thought the policeman wanted them to speak. Nor did any appellant give evidence to support the criticisms of counsel as to the unsuitability of Bobby Armstrong as a "'prisoner's -14- friend", nor to support their counsel's submissions that the re-enactment during the afternoon of 1 January followed a rehearsal in the morning. The second matter is that the cross examination of the Crown witnesses upon the voir dire was not restricted to the issues argued upon the appeal. It was far reaching - suggestions of abuse, humiliation and violence were put to the police, denied, and they fell by the wayside being unsupported by evidence. Wells J. stated in The Queen v. Williams 14 S.A.S.R. 1 at p.3 - "But it should not be, as it sometimes is, assumed that the trial judge ought to have resort to such a procedure without strong reasons. The practice of directing a voir dire in appropriate cases must not lead to the supposition that counsel have an unrestricted right to a fishing expedition. Ordinarily, a trial judge will not allow a voir dire hearing simply at the request of counsel. It is within his discretion whether or not to do so, and for the exercise of the discretion there must be proper and adequate material before him. That material may be found in an explicit assurance by counsel. for the defence that he intends to adduce certain evidence, or in some passage or passages in the depositions." In the present case the trial judge, who at that stage was not to know what evidence, if any, would be called by the appellants, allowed the cross examination of counsel to range far and wide. Eventually the trial concluded. Janice Edwards was acquitted and the appellants convicted of murder. They were not subject to mandatory sentences -15- of life imprisonment in the Territory as s.6 of the Criminal Law Consolidation Act provides that where an aboriginal is convicted of murder "the Judge may impose such penalty, as having regard to all the circumstances of the case, appears to him to be just and proper." The trial judge sentenced all appellants to imprisonment for nine years and two months and directed they should each serve four years imprisonment before being eligible for parole. The appeals against sentence were withdrawn and in my view, wisely so. Fortunately, following a recent amendment to the Prisons Act (No. 155 of 1979) juveniles sentenced to imprisonment in the Northern Territory may now be placed in more appropriate institutions. ADMISSIBILITY OF ADMISSIONS UPON RE-ENACTMENT - VOLUNTARINESS AND DISCRETION Many, in fact most, of the submissions of counsel on questions relating to voluntariness, the exercise of judicial discretion and questions of arrest and detention had common factual basis. Collins, Stuart and Joyleen Williams were all juveniles. They all spoke English. Stuart, who was apparently reared mainly in Port Augusta, South Australia, spoke it as his sole language. Evidence was called on behalf of Josephine Woods to prove that though in years an adult, (24), she was intellectually retarded. Her appeal introduced some special elements. -16- If the finding that the re-enactments were voluntary has insufficient evidence to support it, as the Crown bears the onus of proof, this court will interfere, just as it will interfere if it is apparent that the trial judge applied the wrong principles in reaching such a finding. His finding that the participation of the appellants in the re-enactment was voluntary was a finding of fact. If that finding or decisions made in the exercise of discretion are plainly wrong, then this Court is compelled to interfere just as it will interfere if it finds that the trial judge wrongly exercised no discretion. But the error must be demonstrated by the evidence. The "court will not lightly interfere with the exercise of a discretion validly made by a court at first instance." (R. v. Austin (1979) 21 S.A.S.R. 315 at p. 319. Lord Salmon's words in Director of Public Prosecutions v_ Ping Lin cu.u.) [1976] a.c. 575 at 605 define the role and duty of a judge in a criminal trial exercising such discretion, advert to the test of voluntariness and are a reminder of the advantages of the trial judge who, as a rule, gains much better insight and understanding than the transcript of evidence and argument later reveals to a court of appeal. In my view this is particularly so in a long and complicated trial and this was certainly in that category. "It follows that a judge may allow evidence of an alleged confession or statement by an accused to go before -17- the jury only if he is satisfied that the confession or statement has not been obtained in contravention of the principle laid down in the authorities to which I have referred. This is because of the risk that, unless the judge is so satisfied, to allow evidence of an alleged confession or statement to go before the jury might seriously prejudice the accused. Hence 'the trial within a trial'. The judge's decision is, in reality, a decision on the facts. He has to weigh up the evidence and decide whether he is satisfied that no person in authority has obtained the confession or statement, directly or indirectly, by engendering fear in the accused that he will be worse off if he makes no confession or statement or by exciting hope in the accused that he will be better off if he does make a confession or statement. If the judge is so satisfied, he may admit evidence of the confession or statement. If he is not so satisfied he must exclude it. The judge's task is to consider the evidence before him, to assess its implications and to decide the case on his view of that evidence in the light of the basic established principle. The somewhat pedantic approach which seems to have been adopted in some of the cases to which we have been referred should be avoided. These cases are of doubtful validity and of little, if any, value. The Court of Appeal should not disturb the judge's findings merely because of difficulties in reconciling them with different findings of fact, on apparently similar evidence, in other reported cases, but only if it is completely satisfied that the judge made a wrong assessment of the evidence before him or failed to apply the correct principle - always remembering that usually the trial judge has better opportunities of assessing the evidence than those enjoyed by an appellate tribunal." In Cornelius v. The King (1936) 55 C.L.R. 235 Starke J. after observing the trial judge had refused to classify a confession as improperly obtained stated (p.240) "There is ample evidence to support this conclusion. In my opinion, it is -18- detrimental to the administration of criminal justice that such matters are investigated in this Court, and it would be highly mischievous if we substituted our opinion for that of the trial judge, without having any of the advantages already referred to, or the experience which he and the Full Court possess." It is convenient in my view to deal initially with the trial judge's finding that the re-enactments during which photographs were taken were voluntary. His Honour said - "For the reasons I have already indicated, I have reached the view that the participation of the respective accused in the re-enactments and their being photographed in the course of those re-enactments were shown to have been voluntary in the sense that they acted in the exercise of their free choice, were not overborne or intimidated or subjected to sustained or undue insistence or pressure." His Honour correctly referred to the onus of proof resting on the Crown, the onus being ''the probabilities" as enunciated in Wendo v. R. (1963) 109 C.L.R. 559. Later the trial judge commented in his reasons - "I have found earlier in these reasons that the re-enactments by each accused were voluntary. There was no violence, hostility or offensive conduct by the police." The appellants contend inter alia, that his Honour's reference to the reasons "already indicated" was erroneous or meaningless as he had not previously given any detailed reasons relating to the question of voluntariness. His Honour had made two previous rulings on the voir dire, the first on 20 June on the fifth day of the examination concerning the admissibility of a statement made by Janice Edwards. That finding -19- appears at page 441 of the trial evidence and continues for ten pages. It was a detailed examination of the issues which arose in her case. Many weeks later on 1 August, the trial judge gave succinct reasons for rejecting the subsequent records of interview and he admitted the evidence of the re-enactments (p.3064 of trial evidence). In so doing he deferred, on good grounds, his detailed reasons which were delivered on 12 September 1979, after the verdicts. It may be his Honour thought that he had said more previously on questions relating to voluntari- ness, but in view of his examination of the authorities and his specific reference to the well known words of Dixon J. in McDermott v. The King (1948) 76 C.L.R. 501 at 511 it cannot be suggested that he was either unaware of the principles or that he had misdirected himself. Reference was made to his finding that there was no "violence, hostility or offensive conduct by the police". The appellants submitted that he should not have been satisfied as to voluntariness, not so much because of overt acts, but because of more subtle and cumulative factors including the ages of some of the appellants, their race, other disadvantages and a host of other circumstances including their detention at Harts Range and Huckitta, their removal to Huckitta without explanation or choice and the facts of the re-enactments themselves. But it seems to me that his Honour had well understood these submissions. He said (p.336) - -20- "It was next argued that in relation to the re-enactments there was a lot of facts and circumstances which would have created a feeling of oppression on the part of the accused and the oppression would have been such as to overbear the will of the accused." His Honour had by that stage of his reasons dealt specifically with many submissions which went to the "softening up'' argument, the suitability of the "prisoner's friend", the absence of parents, the inadequacy of the cautions. I interpret the last quoted passage as indicating that his Honour took into account all the circumstances to which he was referred. Many of the factual matters and situations specifically dealt with by him went of course, to issues of voluntariness and to the exercise of discretion on fairness principles. Facts which may not intrude on true voluntariness frequently may, on their own, or cumulatively, result in exclusion of evidence in the exercise of judicial discretion. On Collins' behalf (and these submissions applied to all appellants), it was submitted that the trial judge should have excluded evidence of the re-enactment (which included admissions and photographs of the demonstration) because it resulted from unfair interrogation, unfair because the appellants were subjected to false imprisonment. It was argued that the police should not have taken them in custody to Huckitta Station that morning, but should have conveyed them to Alice Springs to appear before Justices on the charges of illegal use for which they were arrested. -21- If the true situation was that they were in custody because they were suspected of causing Webb's death, then it was said, and rightly so, that they could not be lawfully so held for purposes of interrogation. It was further argued the trial judge should have found the interrogation unfair because the police did not comply with the provisions of Police Standing Order 34 which provided that the Director of Welfare should be advised when a child is taken into custody and which made recommendations for interviewing a child "in his own home in the presence of -- parents.'' Nor, it was said, did the police ensure that the Central Australian Aboriginal Legal Aid Service was notified "as soon as practicable after arrest" and it was argued the interro- gation was in breach of the rules laid down by the present Chief Justice of the Supreme Court of the Northern Territory in R.v. aAnunga & Ors., R. v. Wheeler & Anor. (1976) 11 A.L.R. 412. On this aspect it was contended that the trial judge on the evidence could not have been satisfied that either the words of the caution, or the true right of silence thereby conveyed were understood - an argument which goes to voluntariness as well. The appellants contended his Honour in reaching his conclusion that the re-enactments were voluntary and in the general exercise of his discretion "undervalued" the cumulative police breaches and impropriety. Mr Kelly submitted that the only interpretation open on the evidence was that it was a deliberate police choice, and an unlawful choice, to take the appellants to -22- Huckitta on New Year's day, that thereby they deliberately breached provisions designed for the protection of children and aborigines in the hands of police. In summary it was said that had the trial judge paid proper regard to these cumulative and unlawful acts, the only proper finding was that the evidence was obtained unfairly and "at too high a price" within the meaning of The Queen v. Ireland (1971-72) 126 C.L.R. 321. It was further submitted in effect that the trial judge had looked at the form rather than the essence or true philosophy of the rules or tests as to voluntariness, and that upon the evidence he could not have been satisfied that when the appellants spoke and explained the parts they played they did so truly in free choice, a choice made in the knowledge that they would not be prejudiced by silence, nor advantaged by speaking. In the absence of "detailed reasons" given by the trial judge it was said that we should review the evidence to ascertain whether it justifies his implicit findings that each appellant was given a choice which was understood and freely exercised. In the course of the appeal much was said as to the development of the law in Australia relating to voluntariness, the exercise of discretion in the "unfairness" realm, the considerations of fairness to the accused, and of the interests of the community in seeing that those who offend are brought to justice and that investigations are not unduly hampered. -23- These are considerations which may not, and generally do not, go hand in hand. Hence the need for discretionary decision. The foundation of the rules relating to admissibility of confessional evidence was not based upon matters of fairness in any sense of competition between the prisoner and the community. It was broad policy which did not interest itself in the efficiencies of investigation nor the need of bringing malefactors to justice. This broad policy as to voluntariness was strictly applied. It may be that in Australia, Wendo's Case (supra) which declared that the onus of proof of voluntariness resting on the Crown was upon the balance of probabilities rather than beyond reasonable doubt, has lessened the stringency of proof, (cf. R. v. Sartori, Gavin & Phillips (1961) Crim. L.R. 397). So also it may be that because of changes in economic and social views that words regarded in the last century as an "inducement" would not be so regarded today. (See, for example, R. v. Thompson {1893] 2 Q.B. 15.) But the policy has not changed and may still be enunciated in the traditional terms - "By that law, (the law of England) to be admissible, a confession must be free and voluntary. If it proceeds from remorse and a desire to make reparation for the crime, it is admissible. If it flows from hope or fear excited by a person in authority, it is inadmissible". per Cave J. in The Queen v. Thompson (above). Lord Summer in Ibrahim v. Rex {1914} A.C. 599 cited the principle - in the same basic terms as being "as old as Lord Hale" and referred to the burden of proof. In dealing with the issue - the response of a Sepoy soldier to his English commanding officer, Lord Summer said "There was in the present case Major Barrett's affirmative evidence that the prisoner was not subjected to the pressure of either fear or hope in the sense mentioned. There was no evidence to the contrary. With Reg. v. Thompson (1893) 2 Q.B. 12 before him, the earned judge must be taken to have been satisfied with the prosecution's evidence that the prisoner's statement was not so induced either by hope or fear, and, as is laid down in the same case, the decision of this question, albeit one of fact, rests with the trial judge. Their Lordships are clearly of opinion that the admission of this evidence was no breach of the aforesaid rule." In the passage referred to by the trial judge in McDermott v. The King (1948) 76 C.L.R. 501 at 511 Dixon J., when referring to the common law doctrine, stated. "This means substantially that it has been made in the exercise of his free choice". Here it is the appellants' contention that there can be no "free choice" without proof of true understanding of the right of silence and proof of a capacity to exercise the right. His Honour continued - "If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimi- dation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary. But it is also a definite rule of the common law that a confessional -25- statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made: per Cave J. in R. v. Thompson [1893] 2 Q.B.D. 12, at p.I7. e expression 'person in authority' includes officers of police and the like, the prosecutor, and others concerned in preferring the charge." In that case Dixon J., after referring to the practice in England of requiring strict adherence to the Judges' Rules, distinguished the "imperative rules of law requiring the rejection of confessional statements unless made voluntarily and the so called discretion of the court to exclude evidence of such statements if the manner in which they were obtained is considered to have been improper". He went on to say - "Here as well as in England the law may now be taken to be - that a judge at the trial should exclude confessional statements if in all the circumstances he thinks that they have been improperly procured by officers of police, even although he does not consider that the strict rules of law...require the rejection of the evidence." In McDermott's Case, whilst there was no reference by any of the judges to the necessity or urgency of investigation nor to public policy as one of "the circumstances", in refusing special leave, reference was made to the "character" of the police interrogation and to the absence of insistence as factors which negatived "such a degree of impropriety as to require the exclusion of the testimony as to the risoner's admissions", and in argiment without doubt g -26- ca] the 'degree of impropriety" loomed large. The trial judge commented after referring to the judgment of the High Court in The King v. Lee (1950) 82 C.L.R. 133 that the test as to fairness there expounded "includes an element of the public interest in the proper investigation of crime". He cited at length portion of that judgment in which the High Court approved the remarks of Street J. in R. v. Jeffries (1947) 47 S.R (N.S.W.) at p.31l et seq. This included the following passage - "But it is in the interests of the community that all crimes should be fully investigated with the object of bringing malefactors to justice, and such investigations must not be unduly hampered. Their object is to clear the innocent as well as establish the guilt of the offender. They must be aimed at the ascertainment of the truth, and must not be carried out with the idea of manufacturing evidence or extorting some admission and thereby securing a conviction, Upon the particular circumstances of each case depends the answer to the question as to the admissibility of such evidence." It is worth recalling an earlier passage in the joint judgment in Lee's Case (supra) (at p.142) where their Honours paused to consider "the realities of the situation" confronting the police. They said - "They were investigating a murder, and they were bound, as O'Bryan J. said, to make a full and complete investigation into the crime. However likely it may have seemed to them that they had found the guilty party or parties, they could not know to whom the actual guilt attached. They had evidence that each of the three had been absent from Kent's room at what might have been a critical time. The -27- actual guilt might attach to any one or any two or to all three of the parties. All were under grave suspicion, but any one or any two might be innocent. The detectives were bound, before they preferred the most serious of all criminal charges, to see what, if anything, each suspect had to say about the events of the night." It may be that some differences have developed in England and Australia since Dixon J. stated in McDermott's Case that the law in both countries was the same when dealing with statements strictly admissible but improperly obtained. See, for example, the speech of Lord Morris of Borth-y-Gest in Director of Public Prosecutions v. Ping Lin (H.L.) (supra) at p. 594. "The task of the judge will be to apply the spirit and intendment of the rule. Without being anchored to any particular words he will consider whether the statement of an accused was brought about by some hope or fear held out or caused by someone who could be classed as a person in authority. The judge will be ruling on admissibility and not (primarily at all events) on any question as to the propriety of the conduct of someone who conducted an interview or asked questions or as to the propriety or impropriety of something said or done. The judge will be ascertaining the facts as to what was said in an interview and not (primarily at all events) inquiring as to the motives or intentions of the persons who conducted an interview. In my view it is not necessary, before a statement is held to be inadmissible because not shown to have been voluntary, that it should be thought or held that there was impropriety in the conduct of the person to whom the statement was made. Whether there was or whether there was not, what has to be considered is whether a statement is shown to have been voluntary rather than one brought about in one of the ways referred to." -28- The distinction between true voluntariness and impropriety leading to confessions, otherwise voluntary, but inadmissible because of the techniques applied in gaining same and other "fairness matters" - is not so well defined. Impropriety may be a factor examinable in the issue as to essential voluntariness. Nevertheless the public interest test, the exigencies of the police investigation are, and must be, factors to be included and considered as a "circumstance of each particular case" referred to by Dixon J. in McDermott's Case (supra) at 513 and referred to by the High Court in Lee's Case (supra) at 151, not as a circumstance as to essential voluntariness because there can be no degreesof voluntariness but as a factor relevant to the exercise of discretion where propriety or fairness are in issue. ADMISSIBILITY - (TRIAL JUDGE'S FINDINGS) The evidence before the trial judge relating to the circumstances of the re-enactment was of importance. He found that the appellants "had a sufficient understanding of English to enable them to comprehend the questions being asked and had a good conceptual idea of what they were asked to participate in." His Honour had the advantage during the voir dire examination of listening to recordings of conversations of the appellants Williams, Woods and Stuart. The evidence satisfied him that the appeliants regularly came into contact with white people. He commented that -29- "they could not be described as being tribal people". He found they were cautioned, he found Bobby Armstrong, who spoke Aranda, was an appropriate parental figure, an appropriate interpreter, a person who was with the appellants throughout. It is implicit in his findings that the appellants were informed that they were not obliged to answer questions upon the commencement of the re-enactment. He found the police acted properly and he accepted the evidence of the police officers and Armstrong that "the accused did not appear nervous or oppressed". The trial judge in contrast to this Court had ample opportunity of assessing the credibility of these witnesses. The cross examination by five defence counsel of Bobby Armstrong, the aborigine asked by the police to act as prisoner's friend or interpreter occupies 204 pages of transcript during the voir dire examination, the cross examination of Sergeant Chung occupies 314 pages. His Honour rejected the submissions put to him that the re-enactment which commenced at 3.05 p.m. on the afternoon of the lst January, was a sham, a culmination of a rehearsal early in the day, when he found the police were carrying out other investigations. He found as a matter of fact that the appellants' re-enactment and the admissions which then resulted were voluntary and in so finding there can be no suggestion that he misdirected himself as to the onus of proof, being bound by Wendo v. The Queen (1962-1963) 109 C.L.R. 573 to which he referred. ~30- But it was argued that despite these factual findings as to the caution and other matters the trial judge could not have been satisfied that when the appellants participated in the re-enactment they truly comprehended their free choice to remain silent without disadvantage. We have been urged that the circumstances of age, race, detention and the inherent situation combined to make it unlikely that the message in the caution was comprehended under circumstances which made it possible or practicable to be heeded and exercised. Mention was made of the black child and the "big white policeman", the submissiveness of the appellants, general matters of this nature. ADMISSIBILITY - (CAPACITY TO EXERCISE RIGHT OF SILENCE) Mr Vincent referred to two fundamental concepts, proof of which lay on the Crown. First it must be proved that an accused at the time he spoke had knowledge of the right to speak or remain silent, secondly it must be established that "there was an exercise in terms of the capacity to choose." Thus it was submitted that whilst the trial judge's findings that there was no coercion, no oppression, no inducement might be sustained he should nevertheless have held even assuming he found a caution was given that by reason of "external circumstances" the appellants were unable to exercise their choice. If this submission as to law goes no -31- further than postulating that only admissions made in understanding of the choice, and after the exercise of will in making the choice will be received in evidence, I consider it correct. In McDermott v. The King (supra) at p. 507 the Chief Justice referring to rejection of "unfair'' evidence stated - contended Street J. at 312 - "Examples of such unfairness would be afforded by irresponsibility of the accused on the occasion when the statement was made or failure on his part to understand and appreciate the effect of questions and answers." Perhaps a closer analogy to the situation by Mr Vincent is to be found in the words of in R. v. Jeffries (1947) 47 S.R. N.S.W. 284 "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 comprehension, 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." ~32- But if it is suggested that in this case by reason of ethnic, cultural, sociai Zactors or disadvantage, or by a combination of such matters, apparent submissiveness and the circumstances of custody itself, the trial judge should not have been satisfied as to voluntariness, then I would disagree. It is well known to the judges in the Northern Territory that unsophisticated aboriginals who have had little contact with white society are, by upbringing, inclined to be not only polite, but co-operative and frank with authority. But the appellants here do not appear to have come into that category - in fact some of their exploits and attitudes suggest to the contrary and the trial judge so found. An inherent anxiety to talk to police, to co-operate, even though that anxiety may be prompted by the inexperience of youth will not of itself go to admissibility any more than the frightened spontaneity demonstrated in R. v. Isequilla {1975] 1 All E.R. 77, or the confused beliefs, not induced by authority, considered in Harris v. The Queen (1967) S.A.S.R. at 316. See also Sinclair v. The King (1946) 73 C.L.R. 316 per Latham C.J. at 323 and Cornelius v. The King (supra) at p. 252 where the court cited the words of Darby J. in R. v. Cook (1918) 34 T.L.R. 515 at 516 - "It would be a lamentable thing if--- statements made by prisoners were excluded because of a shadowy notion that if the prisoners were left to themselves they would not have made them." -33- Wells J. commented in The Queen v. Williams (supra) at p.7 - "It must first be emphasized that, as I understand the law, an overwhelming determination, on the part of a person being interviewed, to answer all questions put by the investigating officer can never, of itself, have the effect of rendering a confession or admission involuntary, unless that determination resulted from a threat or an inducement held out by a person in authority contrary to the Judges' Rules. It is immaterial that the determination was the product solely 'of internal pressures or internal motives''"'. ADMISSIBILITY - FAILURE OF ACCUSED TO GIVE LVIDENCE ON VOIR DIRE The trial judge's decision that the re~enactments and the admissions then made be admitted in evidence was based, as it had to be, on the evidence of the Crown witnesses. Not one appellant gave evidence on the voir dire or during trial of coercion, fear, confusion, lack of understanding, or of his or her ignorance of the right of silence. If such evidence had been adduced this would have been important evidence the trial judge would have been called upon to consider. His Honour dealt with this aspect at some length (see pages 312-314) and he found it ''very significant". He stressed it several times and it was important in his view, not only on the issue of admissibility, but as to other matters, including the important question as to whether or not there had been a "rehearsal" on the morning of 1 January for the -34- re-enactment later that day. The defence elected in the conduct of the trial to impugn the Crown case and counsel sought to discredit the police officers and the crucial aboriginal witness Bobby Armstrong by long and vigorous cross examinations in the hope of excluding not only the records of interview, but the earlier re-enactment. But, at the end of the day the trial judge accepted the re-enactment had occurred as submitted by the Crown and of vital importance he believed the evidence of Armstrong who he classified as "a gentle, honest man who had a sound, responsible approach to the role the police had asked him to play as interpreter and friend". Commenting that from time to time "he became somewhat confused in the witness box under lengthy and relentless cross examination" his Honour held him to be a witness of truth. The test he underwent was certainly thorough. Having examined Armstrong's evidence it seems to me those findings were justified by the evidence. Before his Honour, and in argument before us, the appellants' counsel gave reasons why the appellants were not called to give evidence on the voir dire. They submitted there would have been inherent dangers for the defence in this course; the young people could have said anything, overwhelmed by the atmosphere of trial and their situation, memories perhaps dulled by lapse of time. That may be so. But it is not uncommon for young people whatever their race to give -~35- evidence. A trial judge has a responsibility to ensure they are treated fairly and patiently. It was not that his Honour, in the absence of evidence from the appellants, was entitled to draw an inference in favour of the Crown along the principles of Jones v. Dunkel (1958-59) 101 C.L.R. 298, But he was left with the evidence of the Crown, which bore the onus, and no competing direct evidence on the issues going to voluntariness save for some evidence relating to the "rehearsal" activities on the morning of 1 January which he considered and rejected as confused and unreliable. The failure to call or give evidence in support of allegations against police was referred to by the Full Court in R. v. Bailey (1958) S.A.S.R. 301 at 311 and by the Court of Criminal Appeal in New South Wales in R. v. Bodsworth (1968) 2 N.S.W.R. 132 at 141 an omission which, in the latter case, was referred to as "of considerable importance". ADMISSIBILITY - DISCRETION - PUBLIC INTEREST - PUBLIC POLICY Much of what I have said above is relevant also to the submission that in any event despite a finding of voluntariness the trial judge should have exercised his discretion and excluded evidence of the re-enactment. We heard considerable argument as to the extent to which more recent decisions such as R. v. Ireland (1970) 44 A.L.J.R. 263 and Bunning v. Cross (1978) 52 -36- A.L.J.R. 561 are relevant to the present issues. There has, as counsel pointed out, been subsequent debate as to whether the principles enunciated by the Chief Justice in Ireland's Case (referred to by the trial judge and described in Bunning v. Cross (supra) as representing the law in Australia) apply to confessional as well as real evidence. Both were "real'' evidence cases, but I can see no reason for limiting their application to this area, and not only because I believe that if the principles were intended to be so restricted the High Court would have said so. The discretion to admit or reject voluntary confessional evidence wrongly, unfairly or improperly obtained is far from new. Such a discretion may be exercised by weighing the probative value of the evidence against its prejudicial impact upon the accused, itself a fairness exercise, and an exercise which involves consideration of the importance of the evidence. The reception of confessional evidence may also be excluded not because of any police impropriety, but because its reception would in the circumstances, be unfair to the party against whom it would operate, where for example, he was found to be sick, shocked, drunk, or under acute distress. Many shades or degrees of unlawfulness and impropriety are encountered and in determining whether to admit evidence thereby obtained - be it real or -37- confessional - it is for the trial judge to weigh up the "competing requirements of public policy" referred to by Stephens and Aickin JJ. in Bunning v. Cross (supra) at 659 always bearing in mind the caveat of the Chief Justice in Ireland's Case that if consideration of the necessity to convict offenders weighs too heavily in the public interest scales, the price may be too high, that price being interference with "the citizen's precious right to immunity from arbitrary and unlawful intrusion" into his daily affairs and the erosion of traditional rights and liberties. Hence the reference in Bunning v. Cross (supra) to questions of high public policy. These decisions and the principles enunciated have not perhaps contributed greatly to the confessional area. They are more concerned with the new methods and scientific techniques of crime detection, the increasing sophistication and seriousness of crime, the altered patterns of criminal behaviour. But to contend that these decisions have no application to the exercise of discretion concerning admissions is in my view likely to confuse. In this case is the admissibility of the evidence as to the discovery of the .22 cartridge case on the ground indicated by Collins during the re-enactment to be decided on different principles to the admissibility of the re-enactment itself? It seems to me that if the re-enactment was not admissible any evidence associating Collins with the discovery of the bullet should be inaamissible. Whether if the re-enactment was not admitted the prosecution could nevertheless call evidence that the -38- bullet was discovered, as it were, in routine search (which would not be true) and matched with the Winchester rifle taken from the appellants, is a matter I would not now determine - but the situation would be absurd. I agree with the view expressed by Mitchell J. in R. v. Killick (1979) 21 S.A.S.R. 321 at 327 that the reasoning of Stephens and Aickin JJ. in the passage from Bunning v. Cross (supra) she there refers to applies to confessional evidence. To that extent it seems to me that in the exercise of his discretion it was proper for the trial judge to consider the desirability of conviction of wrongdoers. That cannot be considered, nor in my view can the police conduct be measured, in isolation from the nature of the apparent crime the subject of investigation, the killing of Webb at his home in the outback. The trial judge considered and cited the authorities at some length. He posed the question, perhaps rather broadly as to whether the "public interest consideration has its role to play in the application of the fairness test." Having exercised his discretion to admit the re-enactments and photographs he stated that in so doing he had "taken into account the interests of the community". Clearly he was referring to those interests in the sense that they were served by conviction of the wrongdoers. The trial judge proceeded on the correct principles and after consideration of his reasons and the relevant evidence I am of opinion that no error has been demonstrated. He was correct in his refusal to exclude the re-enactment in the exercise of his discretion. -39- ADMISSIBILITY - UNLAWFULNESS OF DETENTION ~ FAILURE TO COMPLY WITH POLICE STANDING ORDERS. It is not practicable to deal with every submission relating to the trial judge's decision to admit evidence of the re-enactment. The principal matters which were urged on behalf of the appellant Collins, related to the alleged illegality of detention at the time of the re-enactment, the failure of the police to conform with standing orders, the fact that on Ist January, the police took him to Huckitta Station rather than to Alice Springs and the fact that he was not specifically cautioned concerning the still photographs which were taken. Other matters urged were that the trial judge failed to give sufficient weight to the absence of a parent during the re-enactment, and that "a friend" (within the meaning of R. v. Anunga; R. v. Wheeler (1976) 11 A.L.R. 412) was not present. Complaint was made that neither Bobby Armstrong nor the appellants were advised as to his proper function before the re-enactment and the trial judge's finding that no rehearsal took place on the morning of Ist January was attacked. A further alleged st police impropriety was that the appellant Collins was "not informed by the police of the death or that they were investigating a serious matter". Most of these matters, variously expressed in the Notices of Appeal, are the subject of common complaint. There can be no doubt as to the legality of the appellants' arrest. Constable Picker, armed with the information given by Janice Edwards, apprehended the appellants about 45 km east of the station. Each admitted -40- in short roadside conversations that he or she had been party to the illegal taking of vehicles at Amoonguna and Huckitta and their subsequent use. They were arrested about 8.00 p.m. and after being conveyed to the station were taken to Harts Range Police Station where they were charged with illegal use of a motor vehicle and they remained in custody overnight. The appellants were properly arrested for breaches of s.49A of the Police and Police Offences Ordinance which was then in force in the Territory. They were arrested pursuant to the powers of arrest without warrant contained in s.27(1)(e) of that Ordinance. Section 34 of that Ordinance is in the terms of s.78(1) of the South Australian Police Offences Act 1953-1961 dealt with in Drymalik v. Feldman (1966) S.A.S.R. 227. There the court held that section, and the common law required that the person arrested should be forthwith brought before a Justice, the court adding that "forthwith must of course be reasonably understood and applied". It is, of course, clear that arrest as a convenient preliminary to an interrogation is not countenanced by law (Bales v. Parmeter (1935) 35 S.R. N.S.W. 182). It was submitted that the arrest of the appellants was a device for holding them for questioning - a "legal way" of getting them in custody and much was said of the "holding charge" and the fact that the charges of illegal use were not initially proceeded with. These submissions overlook the realities and if I may say so the responsibilities of the police, responsibilities owed to -~-41- each of the accused as well as to the community. The finding of the body of Webb was the event which brought the palice to the area, Earlier that day, about 11.00 a.m., the police in Alice Springs had received a complaint about offences at Amoonguna Social Club. The complainant was Mr. Williams, the father of one of the appellants who then named the appellants as the persons who had broken into the store. They had admitted charges of illegal use. Their arrest cannot on the evidence be termed a pretext for investigation. But it was said the detention became illegal on 1 January when the appellants, then in lawful custody at Harts Range, were removed to aid police enquiries into the killing at Huckitta Station. The character of the detention thereupon changed, it was said, from legal detention to illegal detention. It was said the police, despite the information in their possession, should have then and there taken the children to Alice Springs to be taken before a Justice on the charges of illegal use, although it was common knowledge that there would be no court sittings on that public holiday. I cannot accept this as the law. The appellants or one or more of them were likely to know something of the killing; whether as witnesses or actors remained to be determined. It was necessary that they should be questioned as soon as practicable and Huckitta was the obvious place. They were cautioned not because the police had then decided to arrest them or any of them on a charge of murder, but because they were already in custody, on bona fide charges. -42- The questioning gave those who may have been innocent the opportunity of clearing themselves. The urgency of the matter was self obvious. It was an unusual situation in that remote area and the trial judge found it was not practicable to convene a court at the nearest police station, Harts Range. I would not place great emphasis on the fact that it was a public holiday, rather I would say that the necessity of investigation into the death of Webb was a fact which the law must take into account in examining the character of the custody and the reasonable- ness or otherwise of the delay in taking the appellants to Alice Springs. The words of Diplock L.J. in Dallison v. Caffery (1965) 1 Q.B. 348 at 370 have relevance - "It is in the public interest that felons should be caught and punished. At common law a person who acts honestly and reasonably in taking steps to serve this public interest commits no actionable wrong. What is honesty in this connection does not change : what is reasonable changes as society and the organ- isation for the enforcement of the criminal law evolves. What was reasonable in connection with arrest and detention in the days of the parish constable, the stocks and lock-up, and the justice sitting in his own justice room before there was an organised police force, prison system, or courts of summary jurisdiction, is not the same as what is reasonable today. Eighteenth and early nineteenth-century authorities are illustrative of what was reasonable in the social conditions then existing. They lay down no detailed rules of law as to what is reasonable conduct in the very different social conditions of today." I turn to the complaints that the police breached police circulars or "standing orders" as to notification of the Aboriginal Legal Aid Service and as to procedures following the arrest of children. -43- The circular memorandum relating to the arrest of aboriginals is set out in the appeal book at 2-315. That circular is in very different terms to the police standing orders considered in Walker v. Marklew (1976) 14 S.A.S.R. 463 which provided inter alia, for the presence of an officer of the Department of Aboriginal Affairs when an aboriginal is questioned about a serious offence. As appears in para (1) the purpose of the memorandum appears to be to enable legal representation to be arranged "at court" and para. 5 provides that when aborigines are arrested outside Alice Springs and Darwin the member in charge of the case "shall ensure that the relevant legal aid service (shall be) notified as soon as practicable after aboriginals are arrested ..." I doubt whether it could be said that the failure of the police to notify the Alice Springs branch of the service on a public holiday by the time of the re-enactment could be classified as unreasonable nor would it have affected the course of events. The trial judge's comments covering Standing Order 34 relating to the arrest and questioning of children perhaps assumed too far an absence of interest by the parents of the young appellants in this case but the failure to advise the successor to the Director of Welfare on New Years Day (if he could have been located) was not a factor which could weigh much in the discretionary process. The provisions that children should be interviewed at home in the presence of a parent, may be apt in most situations relating to juvenile offenders in towns but not when they -44- have been arrested in the bush, a long way from home, being questioned about the killing of a man at his lonely station homestead. ADMISSIBILITY ~- THE ANUNGA RULES I turn to the submissions that the police failed to ensure that the provisions of circular police memorandum No. 15 of 1976 (which was issued following publication of R. v. Anunga (supra) were adhered to. I refer to recent remarks I made in an unreported decision Stevens v. Lewis (Northern Territory Action No. 872 of 1979 - 31/10/79) - "The primary questions, it seems to me, for the court in considering admissibility of admissions allegedly made by Aborigines or, indeed, by any other person in our community are three - relevance, voluntariness and the question of fairness. Each case must be assessed in the circumstances with regard to the individuals involved. The court, in considering the issues, should take into account the guidelines. The case goes no further than that. The guidelines do not alter or constitute a departure from the general law relating to the admissibility of confessions or the matters to be taken into account in the exercise of the court's discretion. Slavish or unnecessary adherence to the guidelines, technical adherence for the sake of form or apparent compliance, was never, in my opinion, intended by the Chief Justice. Indeed, he said so quite clearly - 'These guidelines are not absolute rules, departure from which will necessarily lead to statements being excluded, but police officers who depart from them without reason may find statements are excluded'.™ Here complaint was made that Bobby Armstrong, who his Honour found to be "a person in whom all accused had apparent confidence",... who "was suitable and -45- fulfilled the role in accordance with the guidelines set out in Anunga's Case" was in fact entirely inappropriate as prisoner's friend. At the trial, much the same submissions were made which were summarised in the trial judge's reasons (at 2-329) and dealt with at some length in the following pages. In view of the express findings of the trial judge as to the qualities of this man, the arguments are untenable. The remarks of the Chief Justice in R. v. Anunga (supra) were designed to promote fair investigation - not to stifle investigation. When an aboriginal is questioned for a serious offence far from his own country, the investigation cannot be expected to cease until a friend or relative or tribal kinsman can be summoned, In this case the presence of Bobby Armstrong, an aboriginal who spoke in the appellants' own tongue, must have been supportive. At least that was a finding well open to the trial judge in the absence of evidence to the contrary from any of the accused, who, it must be remembered could all speak basic Englisk. It was to a large extent the situation of the lone aboriginal confronted by police officers in a police interview room and his reaction to that situation which gave rise to the Anunga_ Rules. Here the appellants were at no stage segregated one from the other, save during the demonstration when they were in the intermittent view of others. The demonstration took place in an environment of a nature familiar to the appellants, who had rested together in the shade of a tree. It was an exercise which was apparently -46- delayed until the extreme heat of the day had dissipated. There was no evidence that the appellants regarded Bobby Armstrong as a policeman, a police agent or a person in authority. As the Chief Justice said in R. v. Anunga (at p. 414) "The combination of persons and situations are variable and the categories of persons I have mentioned are not exclusive. The important thing is that the 'prisoner's friend' be someone in whom the aboriginal has confidence, by whom he will feel supported."' The trial judge's finding (at 2-332) that "all accused knew what his '(Armstrong's)' role was", was an inference open upon the evidence. They expressed the wish to have him with them. The trial judge's finding that he "fulfilled the role in accordance with the guidelines set out in Anunga's Case" is not one with which this Court should interfere. In reading Armstrong's evidence, although the occasional confusion referred to is evident, the findings of the trial judge find strong support. ADMISSIBILITY - CAUTION - PHOTOGRAPHS As to the submissions that the cautions given by Sergeant Chung and interpreted to Collins, Williams and Woods were inadequate, consideration of the evidence, including again the evidence of Armstrong, indicates considerable material for the trial judge's expressed satisfaction of the appellants' understanding and willingness to participate. Armstrong's evidence in chief as to the caution to Collins is to be found at E-1558, as to Williams at E-1574, as to -47- Woods at E-1585 and as to Kevin Stuart at E-1602. This man, who the trial judge accepted as honest, told the court their right of silence was conveyed to them and acknowledged. His translations of the caution on subsequent occasions when the records of interview were recorded on tape was checked at trial by the witness Stoll who was conversant with the appellants' tribal language and emerged as conveying the essential features. In cross examination Armstrong made it clear that he could not see "through people", i.e. look into their minds, in determining their understanding but his Honour was entitled to rely on the satisfaction this witness expressed as to the caution and its acceptance by the appellants. It would in my view have been desirable for the police officer to ask the appellants to repeat what had been explained to them during the caution - a common practice in the Territory and this was not done. But his Honour was in a better position than this court to determine this issue, and he had no evidence from the appellants or from any source to suggest any lack of understanding. The evidence supported his findings as to the appellants' comprehension and does not support the complaints of oppression raised in the Notices of Appeal. It was suggested that the police should have specifically cautioned the appellants or explained to them they had the right not to be photographed. If evidence of what the appellants said and showed the police on the re-enactment fell, the photographs would fall with it. -48- They were only explanatory of what was demonstrated, after the right not to participate in the re-enactment was, upon the trial judge's findings, explained and understood. Such photographs have of course evidentiary value and in a case such as this they ensure subsequent accuracy and comprehension. They are a necessary feature of investigation in remote areas where subsequent views by juries are often just not practicable. Photographs tend to prevent later distortion of evidence and to confirm or explain viva voce evidence. It is desirable in my view that in the case of a re-enactment the caution should be appropriately adapted to explain that photographs may be taken to illustrate what occurs. Here the trial judge considered the matter and rightly distinguished the circumstances from the situation in R. v. Ireland (supra) where the accused was wrongly told he was required to be medically examined and photographed. There the High Court found the issues as to photographs and the medical examin- ation could not be extricated and reached the conclusion that the trial judge had not exercised a discretion in permitting their production in evidence. The modern practice of complete re-enactment recorded and displayed by video-tape and which may constitute cogent admissions by conduct alone is also to be distinguished. In that event as the film frequently speaks for itself it may well not be introduced into evidence unless the court is satis- fied the accused understood his right not to participate in the re-enactment (R. v. Lowery & King (No 1) 1972 V.R. ~49- 554). Assuming the admissibility of the evidence of the re-enactment there are no grounds for finding that the appellants were unfairly disadvantaged by reason of the admission of such photographs. Standing alone the photographs are meaningless. They only depict accurately what would otherwise have been admissible in less accurate form in the evidence of the police. Complaint is made that Collins was not informed of Webb's death or that the police were investigating a serious matter. Ignoring what he himself told the police during the re-enactment the inference is irresistible, that he and the other appellants knew of the "old man's" death or shooting. He and the other appellants had spent hours in the company of Janice Edwards, who was at Huckitta when the body was discovered and when the police arrived at the station. In his reasons, the trial judge in referring to police efforts to locate the parents after the arrest of the juveniles, stated when referring to a visit by Constable Lloyd to Amoonguna that "he could not locate them after due search and enquiry". It was submitted that this overstated the thoroughness of the search and perhaps if viewed as a phrase with its legal connotations in running down actions this may be so. "Due" has many meanings - requisite, necessary, adequate, fitting or proper. It seems to me that his Honour was looking at the situation of Constable Lloyd, who was on general duties at Alice Springs that night. Soon after the appellants at Harts Range had been ~50- asked for information as to their parents he was sent out to Amoonguna settlement at about 3.00 a.m. in the morning of New Year's Day. The constable was asked only to locate the families of Collins and Stuart. He had no personal knowledge of the others involved. It is clear from his evidence (F-1995-2009) that he found, as he expected, a lack of co-operation and much intoxication. He was alone. He did find Williams, who many hours before had told Constable Campbell that his daughter and the other young people including Collins and Stuart were believed to have broken into the store. But the policeman's advice "I am looking for the family of young fellows by the name of Collins and Stuart" evoked the reply "I do not know where they are". Williams, an important man at Amoonguna and President of Central Australian Aboriginal Legal Aid Service, was asked whether he would go to Harts Range to interpret as there was "some trouble with some boys up there". Williams, who was apparently under the influence of liquor, replied "No, LT am too sick. Sore throat". Constable Lloyd then left the settlement. The fact is that neither the juvenile appellants nor the folk at Amoonguna who Lloyd spoke to helped the police in their enquiries to locate the parents. Lloyd had not been fully advised of events at Amoonguna and certainly the police did not then mount a full scale search for the parents. But Williams was told Collins and Stuart were in trouble at Harts Range, he knew his daughter had been with them and that she was not at home at Amoonguna. It is a fair inference in the absence of -51- his or any other evidence, that the police enquiries would have alerted him to the likelihood that the group, or some of them, had come under police notice at Harts Range. The trial judge's inference that Williams knew at 3.10 a.m. on 1st January that his daughter was in custody at Harts Range was not, I think, open on the evidence. But the police made a bona fide effort to locate the boys' parents. Furthermore it appears on the evidence that Williams did not contact the witness Ditton, the solicitor with the legal aid service, until the morning of the 2nd January, over 24 hours after Constable Lloyd's visit to the settlement. This is a tenuous ground of complaint and I note that when cross- examined as to what Mr. Williams told her as to his first knowledge of his daughter's arrest, she claimed privilege in refusing to answer the question. Williams himself did not give evidence. I do not consider the trial judge erred in refusing to allow this aspect to weigh too heavily with him in the exercise of his discretion. After commenting that the appellants when asked as to the whereabouts of parents or friends, declined to give information his Honour commented - "By their silence the accused could be thought to have waived their right to have a parent or friend present". If this was intended as an expression of law it could not be correct - a juvenile cannot waive his entitlement to the protection the law provides, but read in its context clearly the reference was to the impression the police may have gained by reason -52- of the appellants' apparent anxiety not to become involved with their parents at that time. But there was no evidence that the police accepted the situation in this manner in view of Constable Lloyd's visit to Amoonguna. Whilst as I have said the appellants' counsel complained about the inadequacy of the enquiry, this visit in my mind was wholly inconsistent with the suggestion that the police were then attempting to isolate the children from their parents. I have stated that the evidence justified the trial judge's findings that Collins and the others had "adequate understanding of English" and the significance he attached to their failure to give evidence on the voir dire I have dealt with. There was a considerable body of evidence which was referred to in the address of the Solicitor~General to support the finding of the appellants' abilities to understand and communicate in simple English. -53- SUMMING UP_- INADEQUACY OF DIRECTIONS The Notice of Appeal given on behalf of Joyleen Williams also complains as to the summing up. It is said that the arguments were summarised unevenly or in an unbalanced fashion to her prejudice. Further, it is said that his Honour failed to direct sufficiently upon the principles whereby Joyleen Williams or Josephine Woods, who fired no shot, could be regarded as principals to murder. Complaint was also made, on behalf of two appellants, and more strenuously argued at trial, that his Honour failed to instruct the jury adequately as to the onus of proof of involvement in concerted action and failed to explain to the jury that the appellants were under no obligation to establish that at the time of the death of the deceased they were no longer parties to the commission of the crime alleged. The question of concerted action or joint enter- prise is not a difficult concept to explain to a jury. It is usual to explain that such an agreement may be express but more usually is to be inferred by conduct and by the very circumstances of the individual roles. The common purpose must be proved to have been on foot before and not merely after the crime was committed and it must be proved to have actually existed at the time of the alleged crime. The jury must also be advised that if the actor in the event goes beyond the contemplation of the common purpose, the other or others will not be proved to be guilty as principal offender or offenders. As to withdrawal, it is necessary to -54- explain that though a person may have been a party to a common undertaking, if he or she withdraws or abandons "it in good time" then he or she is not guilty of the principal offence. (Hales "timely countermand" referred to in White v. Ridley 52 A.L.J.R. 724 at 726). And of course the jury must be instructed it is for the Crown to prove beyond reasonable doubt, the common purpose, the crime within the contemplation of that common purpose and the maintenance of that purpose when the crime was committed. It is not appropriate now to deal with the evidence at length, nor to discuss what may amount to withdrawal or "effective" withdrawal, a term used in argument. Gibbs J. who dealt with the issue and the onus in White v. Ridley (supra) at 726 commented inter alia, "The general onus of proving the guilt of the accused would never shift from the Crown, but an accused who relied on the giving of a countermand or revocation must be able to point to evidence which shows that a countermand or revocation had been given ..... " Glanville Williams in his Textbook of Criminal Law at p.310 says: "If (a person) has acted positively to assist the crime, he must it seems, do his best to prevent its commission, short perhaps of going to the police." In the context of these young persons, the remoteness of the area and the absence of others at the station when Webb was killed, the principles are difficult to apply, but there was in fact little, if any, evidence of actual withdrawal by Josephine Woods or Joyleen Williams. The evidence indicated Joyleen Williams loaded the rifle and this was -55- her account in her unsworn statement. She was found to have money taken from the homestead in her possession, a stolen knife, and it was she who recovered the rifle in the scrub when the party were picked up on the Plenty Highway before they were intercepted by the police. The material as to withdrawal was her assertion in her unsworm statement: "I told Mark not to shoot him and I did not think he was going to shoot him... I thought may be Mark would shoot that man like he said, so I told him not to do it. What Mark told the police about that was true. I thought he would not do it then and I did not talk to him any more..." Mark Collins had said words to that effect to the police. The evidence relevant to the issue of withdrawal in the case of Josephine Woods was contained in one or two answers she made to Sgt. Chung in the record of interview, which despite the trial judge'sruling excluding it in the exercise of his discretion was ultimately in evidence by reason of the fact that her counsel cross examined upon part of it and thus allowed the balance in evidence in re-examination. His Honour's general comments on the onus of proof were clear. He emphasised the "onus never shifts. It remains with the prosecution throughout". He said: "Now I have to tell you about the law relating to common purpose because this is very much a common purpose case. Naturally you cannot have five people firing one gun. But five people are charged with murder. The law is that, if two or more persons reach an under- standing or agreement that, together, they will commit a crime and then, while that understanding is still on foot and has not been called off, one of them does the thing or between them they do the thing which is -56- the subject of their understanding or agreement all things which are necessary to constitute the crime having been done, they are equally guilty of that crime regardless of what part each of them played in it. If there is an arrangement and the purpose of the arrangement is effectuated by one of them then those who took part in the effect of the agreement are guilty. The agreement to act together or in concert need not be agreed in words, their actions may be sufficient to convey the message between them that they were at one as to what they should do." This was a simple and accurate direction. Later he asked the jury to enquire "at the time that the killing was carried out was each such party still a party and had not withdrawn from the execution of the plan..?"* In the course of summing up his Honour read the entire unsworn statements to the jury and it seems to me especially after hearing the addresses of defence counsel that the jury would have been left in no doubt that the onus of proving that the common purpose of killing Webb had to persist until the shot was fired lay on the Crown, and if that was not proved, those who did not fire the shot could not be convicted of murder. Perhaps it could be said the trial judge should have directed as a matter of law as to what, could in the circumstances, constitute the effective withdrawal referred to in the summing up. But it seems to me that by reason of the trial judge leaving it to the jury in this broad fashion the appellants could only benefit. Had he delved deeper it must have appeared that there was nothing more than an expressed wish, no overt act of renunciation, no warning to Webb, no repentence, no disassociation; in fact only a continuance of a joint enter- prise in departing the scene with the others in a stolen vehicle with the stolen goods. It seems to me in these -57- unusual circumstances that his Honour rightly left the question of withdrawal to the jury, but had he directed that as a matter of law, there was no evidence of a purposeful withdrawal such a direction would have been difficult to challenge. PARTICULAR SUBMISSIONS CONCERNING APPELLANT WOODS The appellant Josephine Woods was 24 years of age when these events occurred. Counsel submitted on her behalf that the trial judge erred in permitting the re-enactment in which she was involved going to the jury, not only because of the considerations which have already been dealt with in a general manner but because, he argued, she was significantly mentally retarded and was by virtue of her disadvantages unlikely to have appreciated the right to remain silent and was unlikely to have had the intellectual capacity to exercise that right. A psychologist Ross Harris, gave evidence on the voir dire and later before the jury. When he gave evidence on the voir dire he had examined Josephine Woods on one occasion at the prison. He was asked questions as to her mental and intellectual capacity, as to her ability to make a choice (to speak or not to speak) and also as to her capacity to give credible evidence. He expressed the view that she was below average intelligence, mildly retarded by European standards, and in his view, she would have been vulnerable to pressures, including pressures created by her particular situation or environment at the time she took part in the re-enactment. -58- He suspected some brain damage but this was ruled out by subsequent examination procedures. He termed her "socially inept" and "significantly below other aboriginal respondents" when referring to some data previously collected in psychological tests conducted in Queensland relating to aboriginals. His Honour did not deal specifically with this evidence. Cross examination by the Solicitor General indicated that Harris' opinion on the voir dire was based on one interview carried out under difficult circumstances. The trial judge had other evidence upon which to assess her understanding and capacities apart from the evidence of the police and Armstrong. The witness Tulka Williams was obviously well fitted by association, opportunity and background to talk of Josephine Woods. She had known her for about 17 years, was friendly with her and first came to know her when she was a member of an aboriginal "Brownie" pack the witness once formed. Mrs. Williams, the mother of children, one mongoloid, was in charge of Josephine Woods at the prison. She said Josephine had been a "slow learner when she was young" but that she has developed into a much brighter girl. Her evidence was that Josephine had no apparent difficulty comprehending simple instructions. She assessed her ability to learn as average, and categorised her spoken English as ''very clearly understood". The evidence taken as a whole was that Josephine Woods was backward with limited reading skills. But the -59- trial judge had the benefit of hearing her interviewed on tape as the trial progressed. Again I must comment that the trial judge on the voir dire was given no opportunity to assess her capacity to give evidence or "credible evidence". The situation of a psychologist who has examined an accused person on one occasion telling the trial judge she is or is not capable of giving credible evidence - when the simple test of judicial observation on the voir dire is denied the court, is unusual and in my view not to be encouraged. Some of this evidence was admitted over the objection of the Crown. In my view his evidence as to the results and conclusions he himself drew from his examination were admissible. His evidence as to what she understood, or failed to understand when conversing with Bobby Armstrong in another language, Aranda, on another occasion after Webb was killed, was, in my view probably inadmissible. (See Transport Publishing Co. Pty. Ltd. v. The Literature Board of Review 99 C.L.R. 111 at 119; R. v. O'Callaghan (1976) V.R. 441, Samuels v. Flavel (1970) S.A.S.R. 256 at 261-2 and at 258 where Bray C.J. observed: "But no court should abdicate its own judgment in favour of an expert or refuse to give proper weight to other evidence in the case, even non- expert evidence, which is contrary to the expert's opinion." His Honour must have been satisfied not only that the caution was administered to Woods, but that it was properly interpreted and that the subsequent re-enactment was comprehended and understood. He remained satisfied of her -60- ability to comprehend. There was in my view evidence to support that view including her conversation with Sgt. Chung when she appears to have exhibited clear understanding of events and sequences. It was also urged on behalf of Woods that in any event the re-enactment should be excluded on the basis that it resulted from an "inducement" held out by Bobby Armstrong, the prisoner's friend, whilst he was interpreting the caution to her. The process of the interpretation from English into Aranda was meticulously examined during the trial and a person proficient in Aranda, the witness Albrecht, gave evidence as to the English meaning of what Armstrong said as evidenced by the tapes taken during a record of interview. Whilst the tapes were not eventually admitted in evidence their relevance on this aspect was due to the fact that Armstrong agreed at one stage of what, to him, must have seemed like an interminable cross examination, that the words he used when interpreting the opening words of the caution at the record of interview with Josephine Woods were the same as he used to her two days previously during the re-enactment at Huckitta (F-1838-9). The police officer, Simms, said this in English to Armstrong in Woods' presence: "I want you to tell Josephine that I am going to ask her some more questions about that trouble at the Station the other day. Bobby could you tell Josephine in Aboriginal language that she doesn't have to tell me anything if. she doesn't want to ... Will you tell her that?" -61- In interpreting into Arunda, Albrecht said, the literal English meaning of what Armstrong said was as follows: "Ah. Now the policeman is asking what happened at that station, and you are again to relate correctly the earlier information (you gave). Do you under- stand? You are to relate it as it happened, and so also assist the police by telling it as it happened, and in this way they will fully understand your story, if you relate it as it happened. Understand? Do you clearly understand what I am saying? Josephine, if you do not want to relate this information to this, these two policemen, well don't say anything. (But) if you want (to speak), go ahead and speak. Do you understand this clearly?" It was said that in the circumstances the sentence "You are to relate it as it happened and so also assist the police by telling as it happened ... was an inducement held out by a person in authority. Mr. Hore-Lacy argued that the word "also" suggested that "as well as assisting the police it would also assist herself" and that "it would be better for Josephine Woods to tell the truth" within the strict test of Cave J. in R. v. Thompson 71893] 2Q.B. 12. Whether on the facts of that case the ruling would be the same today is immaterial. The interpretation of English into Aboriginal dialects will probably never be a precise exercise and the witness Armstrong commented on that - (F/1838): "I can't change it over sir. That's my word what I was saying ... English mean(ing), yes, but shorter. Aranda meaning is a bit longer." -62- In the context I read the word "also" as referring to the words ". . you are again to relate" being a reference back to the re-enactment in which she had taken place. I fail to see an inducement in these words and I do not consider they are reasonably open - in all the circumstances, to such a construction. Amongst those circumstances was Josephine Woods' understanding of simple English. She heard the caution expressed in English before it was interpreted into her tribal language and the essentials of the caution, in the form interpreted, were well emphasised. I do not propose to deal at length with the consequential issue as to whether Bobby Armstrong, introduced as a 'friend', a man found by the trial judge to be a "parental" figure and "supportive" was actually a person in authority, traditionally regarded by law as a person whom the prisoner might reasonably suppose to be capable of influencing the course of the prosecution. It is only an inducement offered by such a person, or by another in the presence of such a person, which will be excluded in Australia. Professor Cross in the 2nd Australian Edition of Cross on Evidence at 487 suggests the law is changing in England and that the Criminal Law Revision Committee has recommended its abolition. (See Deokinanan v. R. (1969) 1 A.C. 20 at 33). Each case depends on its facts, but when the police arrange for a prisoner's friend to attend an interview, who is a stranger to the aboriginal prisoner, he may well be classified as a -63- person in authority should he urge the prisoner to tell the truth in the presence of the police, an exhortation consistent with views held by many of the aboriginal people who tend to be honest and co-operative rather than devious. APPARENT TRUTH OF CONFESSIONS In conclusion I briefly comment on the Crown's submission that the fact "that the confessions were demonstrably true'' was a factor relevant to the issue as to whether the stories told and demonstrated during the re-enactment were voluntary and properly admitted into evidence. It is true that when one considers the course of the trial after the admission into evidence of the re-enactments, the submissions of counsel to the jury and the unsworn statements of three of the appellants, there can be no doubt in retrospect that the truth was told. Once a confession has been admitted into evidence for consideration by the jury who must assess its probative value, the fact that it accords with circumstantial or other evidence, the fact that it is apparently true, are factors the jury will consider. The Chief Justice and Gibbs and Mason JJ. adverted to this situation in Burn v. R. (1975) 132 C.L.R. 258 at 263: "We have already said that when the evidence that an accused person has made a confession is not the only evidence in the case the jury are entitled to consider the whole of the evidence in deciding whether or not they are -64- satisfied of the guilt of the accused. Any evidence that has been admitted at the trial and is relevant to the question whether the accused made the confession may be considered by the jury in relation to that question. In R. v. Hammond (1941) 28 Cr. App. R. 84, the Court of Criminal Appeal took the view that evidence that showed that a confession was true was relevant to the question whether the confession was voluntarily made. There the accused on the voir dire was questioned as to his guilt and admitted it completely; the questions were held relevant to the question of how he came to make his statement. A similar view has been taken in Tasmania (Reg. v. Toomey (1969) Tas. S.R. 99) and in Canada (DeClercq v. The Queen (1968) 70 D.L.R. (2d) 530), although it has been suggested that there are strong reasons why the judge on the voir dire should exercise his discretion to prevent the accused from being cross-examined as to his guilt (see particularly Reg. v. Toomey (1969) Tas. S.R. 99), and the article by Mr. F.M. Neasey, as he then was, in "Australian Law Journal" vol. 34, p.110). Those cases were concerned with evidence given on a voir dire, whereas in the present case the question arose at the trial after the confession had been admitted in evidence, but the reasoning there accepted supports the conclusion that evidence which shows that a confession, if made, was true is relevant to the question whether it was made .. Where an accused by his confession admits facts not then known to his interrogators which are subsequently found to be true, this circumstance affords strong evidence that the confession was in fact made." The High Court in dealing with the exercise of judicial discretion referred to the apparent truth of impugned confessions in The King v. Lee (supra) at p. 153 - "In the third place, the exposition lays it down that in the exercise of the discretion the possibility or probability that some 'impropriety' might lead to the making of an untrue admission is to be disregarded as an irrelevant consideration. This is not in our opinion correct. Surely, if the judge thought that the 'impropriety' was calculated to cause an untrue admission to be made, that would be a very strong reason for exercising his discretion against admitting the statement in question. If, on the other hand, he thought that it was not likely to result in -65- an untrue admission being made, that would be a good reason, though not a conclusive reason, for allowing the evidence to be given. Although the better opinion seems to be that the rule which excludes non-voluntary state- ments is based on broad grounds of policy, many judges have (as already stated) considered that the possibility of an untrue confession being made was the justification, or one justification, for the rule. see, e g. 7 R. v. Court (1836) 7 C. & P. 487 [173 E.R. 216, quoted by Dixon J. in Sinclair v. The King (1946) 73 C.L.R. at p.334." But in sitting as a court of appeal considering whether the trial judge rightly admitted the re-enactment and the admissions then made, we should I think pay limited, if any, regard to the fact that subsequent events and circumstantial evidence have indicated that the admissions were true and accurate. The course of events since the trial judge's decision has revealed much, but in a criminal trial the conduct of the defence and the subsequent evidence which does emerge is often much influenced by a decision as to admissibility of a confession. The main issue before us is whether the trial judge's decision was correct when he made it, that is to say, upon the evidence then before him. In R. v. Amad (1962) V.R. 545 Smith J. had evidence on the voir dire that the admissions were in fact true. Amad was on trial for murder but that did not deter the trial judge from excluding the admissions, a case which Professor Cross describes as a "striking but...entirely logical exercise of the discretion", (Cross on Evidence, 2nd Australian Edition 18, 130). -66- For the reasons set out above I do not consider error on the part of the trial judge has been demonstrated and the trials did not miscarry. The appeals should be dismissed. preceli I certiiy thet thi: end the 65 ~- eae tr o> can of the Rhea- eu. 20 . noof iis Pyones Me Foshee Mow hea 7 ieted: oo. 6- SO far Lf My — IN THE FEDERAL COURT ) . ) OF AUSTRALIA ) No. NTG 23 of 1979 ) No. NTG 24 of 1979 NORTHERN TERRITORY OF ) No. NTG 25 of 1979 ) No. NTG 27 of 1979 ) ) ) AUSTRALIA REGISTRY GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA BETWEEN : MARK COLLINS KEVIN STUART JOYLEEN WILLIAMS JOSEPHINE WOODS Appellants AND : THE QUEEN Respondent CORAM : Bowen C.J., Muirhead and Brennan JJ. 20 June 1980. BRENNAN J.: The homestead of Huckitta Station lies 175 miles from Alice Springs, in the Northern Territory, close to the Plenty Highway which goes from Alice Springs towards the Queensland border. On the morning of Sunday, 31 December 1978, three Aboriginal children and two Aboriginal women arrived at Huckitta in a panel van, bought some petrol, and departed towards the Queensland border. Soon afterwards, at 11.15am, they were back. The panel van had two flat tyres, and a radio call was made to another station to obtain a new tube. It would not arrive until that evening, so they had to wait. There were two men living at Huckitta. One, an elderly man, Quinton Webb, was one of the owners of the station. The other, Jack Ransome, was an employed station manager and was much younger. At about 1.00pm, Ransome, in company with one of the Aboriginal women, Janice Edwards, left the homestead in a station vehicle and drove to a dam about two miles away to check some baits. When they got back to the station at about 1.45pm, Quinton was dead, shot through the right side of the chest. The three Aboriginal children and the other Aboriginal woman were gone. They had taken a 4-wheel drive Toyota, one of the station vehicles, and left the panel van behind. The four were subsequently apprehended. They are the present appellants who, with Janice Edwards, were tried on indictment before Gallop J. and a jury for the murder of Quinton Webb. Edwards was acquitted, but the appellants were convicted. At the time of the murder, Janice Edwards was 28. The three appellant children are Mark Collins who was then aged 12, Kevin Stuart then aged 13, and Joyleen Williams then aged 14. The fourth appellant is Josephine Woods, then aged 23, who is somewhat retarded in her mental development. The course of the investigation must now be traced, for it leads up to the making of confesszons by each of the appellants on the following afternoon, New Year's Day, at Huckitta. Those confessions were admitted in evidence over the objections of counsel for the respective appellants, and the appeals against conviction are founded principally upon a challenge to the admissibility and the admission of those confessions. When Ransome returned to the homestead after being at the dam with Janice Edwards, he went te a caravan behind the main building. Janice Edwards found a pool of blood outside the house and summoned Ransome. He found Webb's body in the kitchen, and immediately tried to contact the police. Radio communication was finally established with the Alice Springs police through the Ross River Station later that afternoon. The closest police station to Huckitta was at Harts Range. It was manned by Constable Picker who was despatched to Huckitta. He arrived there at about 6.30pm. Shortly afterwards, he was joined by Constables Sims and Cox who were flown in from Alice Springs, and later that evening the main police party - Sergeants Chung and Sandry and Constable Lade - arrived by car. Picker spoke to Janice Edwards and discovered how the party of young Aboriginals had come to Huckitta. During the previous night, the store and storekeeper's house at Amoonguna had been broken into and two rifles including a Winchester .22 rifle, ammunition which included .22 magnum bullets, keys for the panel van, money and some jewellery had been taken. The panel van was taken also. The appellants and Janice Edwards were the occupants of that panel van when it reached Huckitta that morning. Janice Edwards told Picker that the five young Aboriginals had stolen the panel van from Amoonguna, taking the keys from the canteen manager's house. Picker arrested her for illegal use of the panel van, but left her at Huckitta while he went off with Sims at about 8.00pm to look for the other four. She had told him their names. The four had travelled about 35 miles towards the Queensland border in the Toyota until it stopped, and then they continued on foot in the same direction. After a few miles, they stopped a vehicle coming in the opposite direction and asked for a lift. The driver, Mr. Lankin, fitted them into his already laden vehicle and set off towards Alice Springs. lLankin was returning home with his family to Amoonguna, an Aboriginal settlement near Alice Springs where he, the appellants and Janice Edwards all lived. After going some distance back towards Huckitta and passing the abandoned Toyota vehicle, Lankin was stopped by Picker and Sims who were looking for the four Aboriginals. This was about 28 miles from Huckitta. At the trial, Picker said that Josephine Woods and Joyleen Williams got out without assistance, but that Mark Collins and Kevin Stuart were "assisted" from the vehicle. Stuart had been lying near the tailgate of Lankin's vehicle, but made no effort to get out. When Sims saw him rolling over away from him, he took Stuart by the feet, pulled him over towards the tailgate, and lifted him out over the tailgate and put him on the ground. At the rear of Lankin's vehicle, Picker had a conversation with each of the four and each of them, despite being cautioned, admitted involvement in the unlawful use of the panel van taken from Amoonguna, and the Toyota taken from Huckitta. They were each arrested on charges of unlawfully using these vehicles and put in the cage at the rear of the police vehicle. When Stuart was pulled out of Lankin's vehicle, a Winchester rifle was found underneath him. When the four were placed in the cage, Sims asked them if they had any property on them. Stuart produced some rounds of .22 magnum ammunition and some loose change, Joyleen Williams handed over a pocket knife, and Mark Collins gave Sims some rounds of .22 standard ammunition. When they got back to Huckitta, Janice Edwards was also placed in the cage, and they were driven to the Harts Range police station. Shortly after they arrived there at 11.25pm, the offences for which they had been arrested were formally entered in the charge book, and the five prisoners were placed in the cells. The cells consist of two parts - one cell is enclosed with brick walls and a steel door, and the other, adjacent to it, is more open with one wall consisting only of steel bars. The floor is concrete. There is some doubt as to which cell was occupied by the boys and which by the girls, but the facilities in both were spartan. Two beds and a toilet were in the enclosed cell, blankets and a shower and washbasin in the more open cell. The connecting steel door was not locked, so that all prisoners had access to the toilet. Sgt. Chung came from Huckitta to the Harts Range police station with Picker and the prisgmers. At 12.45am on Monday, 1 January, Chung went to the cells. At least some of the prisoners appeared to be asleep, but he questioned each of them as to place of residence, age, residence of parents, names of friends at Amoonguna and the Aboriginal language which he or she spoke. None of the prisoners answered the questions as to the residence of parents or the names of friends. Collins, Williams and Woods said they spoke the Arunda language and Stuart, Wailbri. The next morning all of the prisoners were taken from the cells, placed in the cage at the rear of the police vehicle and driven to Huckitta. They were not told where they were being taken nor why they were being taken, much less asked whether they would agree to go. So far as appears from the evidence, there was no conversation between the police and any of the accused as to the murder of Webb at any time before they were taken to Huckitta on the Monday morning. Indeed, there was no such conversation before the occasions, presently to be mentioned, on the Monday afternoon when each of them was asked what had happened at Huckitta the day before. The prisoners and their escorts arrived at Huckitta at about 10.00am on Monday morning. The prisoners were released from the cage at the back of the police vehicle and left in the shade of a tree near some of the homestead buildings. Nobody spoke to them, but some food was provided at about 12.30pm and they had access to a water tap nearby. There was a number of police in the vicinity including Sgt. Lincoln, who was in charge of the C.I.Branch at Alice Springs and who had flown out from Alice Springs that morning. He was supervising the investigation, although its conduct was in the hands of Chung and Sims. Chung had been assigned to C.I.B. duties only a month before. It was Lincoln who had decided that the prisoners should be brought out from the cells to HMuckitta. To use his words: "We saw the role of the police or I did at that stage to endeavour to collect as much evidence at the spot with the defendants at that time, so as to place that evidence before the court." The form of evidence- collecting which he favoured was a reconstruction or re-enactment by the prisoners of the events of the previous day. He left the carrying out of this part of the investigation to Chung, though probably with some instructions. Re-enactment was said to be a standard practice in gathering evidence of serious offences. During the re-enactments which took place that afternoon, the confessions upon which this appeal turns were made, and photographs were taken of the various positions occupied, or of the demonstrations given by each appellant. Before the re-enactments, the police had no knowledge of the role, if any, which each of the appellants had played in the death of Quinton Webb. They knew from Janice Edwards and Ransome that the four had probably been the only persons at the homestead when Webb was killed, and they knew that the four had left together in the station Toyota, leaving Janice Edwards behind. A trail of blood leading from the tankstand at the corner of the homestead to the pool of blood, and thence to the body, might have suggested that Webb had been shot while he was at the tankstand. A blanket on the path near the pool of blood suggested that somebody had placed a blanket over him as he lay on the path before he moved to the kitchen. But the police had not identified the murder weapon (the autopsy and ballistics reports were not available until some time later) and they did not know who had fired the gun, nor the part played by others, nor the circumstances in which the fatal shot was fired. None of these facts was likely to be known in detail unless the appellants or some of them disclosed them on interview. All of the appellants were suspects in the murder investigation. It was clearly the duty of the police to make enquiries of the appellants in order to ascertain those facts, but the enquiries had to be made at such a time in such circumstances and in such a manner that, if the enquiries elicited a confession from a prisoner, the confession would be admissible in evidence. If a re-enactment could be arranged conformably with the observance by the police of the law and the proprieties of investigation, it was an appropriate procedure to follow. In the Northern Territory, the Supreme Court has provided some guidance for police officers who are carrying out investigations in which Aboraginal citizens are to be interrogated as suspects. The rules are set out in the report of R. v. Anunga and Others (1976) 11 ALR 412. The rules which were relevant for consideration by Sgt. Lincoln and Sgt. Chung in the present case read as follows: 10. " " (1) When an Aboriginal person is being interrogated as a suspect, unless he is as fluent in English as the average white man of English descent, an interpreter able to interpret in and from the Aboriginal person's language should be present, and his assistance should be utilized whenever necessary to ensure complete and mutual understanding. (2) When an Aboriginal is being interrogated it is desirable where practicable that a 'prisoner's friend' (who may also be the interpreter) be present. The 'prisoner's friend' should be someone in whom the Aboriginal has apparent confidence. He may be a mission or settlement superintendent or a member of the staff of one of these institutions who knowsand is known by the Aboriginal. He may be a station owner, manager or overseer or an officer from the Department of Aboriginal Affairs. The combinations of persons and situations are variable and the categories of persons I have mentioned are not exclusive. The important thing is that the 'prisoner's friend' be someone in whom the Aboriginal has confidence, by whom he will feel supported. (3) Great care should be taken in administering the caution when it is appropriate to do so. It is simply not adequate to administer it in the usual terms and say, 'Do you understand that?' or 'Do you understand you do not have to answer questions?' Interrogating police officers, having explained the caution in simple terms, should ask the Aboriginal to tell them what is meant by the caution, phrase by phrase, and should not proceed with the interrogation until it is clear the Aboriginal has apparent understanding of his right to remain silent. Most experienced police officers in the Territory already do this. The problem of the caution is a difficult one but the presence of a 'prisoner's friend' or interpreter and adequate and simple questioning about the caution should go a long way towards solving it. (4) Great care should be taken in formulating questions so that so far as possible the answer which is wanted or expected is not suggested in any way. Anything in the nature of cross- examination should be scrupulously avoided as answers to it have no probative value. It should be borne in mind that it is not only the wording of the question, which may suggest the answer, but also the manner and@ tone of voice which are used. 11. (5) Even when an apparently frank and free confession has been obtained relating to the commission of an offence, police should continue to investigate the matter in an endeavour to obtain proof of the commission of the offence from other sources. (6) Because Aboriginal people are often nervous and 111 at ease in the presence of white authority figures like policemen it is particularly important that they be offered a meal, 1f they are being interviewed in a police station, or in the company of police or in custody when a meal time arrives. They should also be offered tea or coffee if facilities exist for preparation of it. They should always be offered a drink of water. They should be asked if they wish to use the lavatory if they are in the company of police or under arrest. (7) 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. (8) Should an Aboriginal seek legal assistance reasonable steps should be taken to obtain such assistance. If an Aboriginal states he does not wish to answer further questions or any questions the interrogation should not continue. (9) sseeee It may be thought by some that these guidelines are unduly paternal and therefore offensive to Aboriginal people. It may be thought by others that they are unduly favourable to Aboriginal people. The truth of the matter is that they are designed simply to remove or obviate some of the disadvantages from which Aboriginal people suffer in their dealings with police. These guidelines are not absolute rules, departure from which will necessarily lead to statements being excluded, but police officers who depart from them without reason may find statements are excluded. " " 12. "The enquiry which Chung had made of the prisoners in the cells at 12.45am on Monday was appropriate to ascertain the language with which an interpreter would need to be conversant for the purposes of rule (1), and to attempt to elicit the names of persons who might fulfil the role of prisoner's friend for the purposes of rule (2). Chung spoke to Lincoln in Alice Springs by phone after making the enquiry, and Lincoln must have given some instructions to the police on duty that night at the Alice Springs police station. A Constable Lloyd was despatched by the station sergeant to Amoonguna at about 3.30am. Lloyd went there, however, merely to get a Wailbri interpreter and to find the families of Mark Collins and Kevin Stuart. His enquiries took him to about six houses, and he spoke to people in some of them. He learnt nothing, however, because the occupants of those houses either did not wish to speak to him or because, at that hour of the New Year, they were affected by liquor. Then he spoke to Mr. Williams, Joyleen's father, who was also affected by liquor. Lloyd, not knowing that Joyleen was in custody at Harts Range, did not tell Williams that she was there. He told Williams that there were two boys in trouble at Harts Range and asked Williams whether he could speak Wailbri and whether he would go out to Harts Range. Lloyd also enquired for the families of Collins and Stuart. Williams, who could speak Wailbri, declined to go out and directed Lloyd to another place where Wailbri was spoken. He did not 13. otherwise respond. Lloyd then left Amoonguna. None of the prisoners' families was informed that their son or daughter was in custody, nor did the police enquire for any friend who knew any of the prisoners. Williams happened to be the President of the Central Australian Legal Aid Service, but he did not alert Miss Ditton, the legal officer of the Service, to the information he had received. Of course, he did not know that the prisoners at Harts Range were involved in a murder investigation. Nor was he told that his daughter was one of those arrested. The learned trial judge thought that he knew that Joyleen had been involved with four others in breaking into the Amoonguna store, and that the five were being held at Harts Range. On 13 December, Mr. Williams had told Constable Campbell that these five had broken into the Amoonguna store, but I do not find any evidence to support the inference that he knew that anybody other than Collins and Stuart were being held at Harts Range, or that he knew the charge on which they were being held. An Aboriginal suspected of crime might "feel supported" by an officer of the Aboriginal Legal Aid Service, but no attempt was made to contact Miss Ditton. She heard nothing of these events until the morning of 3 January. 14, However, before daybreak on the Monday morning, 1 January, the police secured the services of Bobby Armstrong, an Arunda-speaking Aboriginal, who was a caretaker of the accommodation centre at the Finke River Mission in Alice Springs. He had acted as an interpreter for police on many occasions, and he understood that on this occasion he was being asked to go to Huckitta in the same capacity. He and Dick Jungala, a Wailbri-speaking man, were driven to Harts Range and then to Huckitta, arriving there shortly before lunch. The two Aboriginal men sat together and had some lunch and then Sgt.Chung spoke to Armstrong. Chung told him that when it cooled off a bit, the police would be asking the children what had happened, and Sgt. Chung asked Armstrong if he would be "the friend to the children". Armstrong agreed to act in this capacity, though he did not know any of the children, and he had not previously acted in that capacity. During the trial counsel for the defence by cross-examination raised an issue as to the events of the morning of 1 January. It was suggested that during that morning the police had engaged in a preliminary re-enactment of the events of the previous day, thereby facilitating the more formal re-enactments which were conducted and photographed during the afternoon. There is some evidence which supports the theory that the police had acquired some 15. information beyond that acknowledged in evidence. For example, although the police deny that there was any communication with any of the prisoners with respect to the murder before the commencement of the re-enactments, Armstrong says that Chung told him that Mark Collins would be the first to be called for the re-enactment because he was the one who had fired the shot, and that Joyleen Williams would be the second because she had loaded the gun. Mark Collins was in fact the first called, and Joyleen Williams was the second. In Mark Collins' re- enactment, the Winchester rifle, which was subsequently proved by the ballistics report to have been the murder weapon, was used. Other rifles, which had been found by the police before the re-enactments of the afternoon began, and which might have been the murder weapon, were not used. The Winchester was the rifle on which Stuart had been lying when Sims pulled him out of Lankin's vehicle, and Chung had it on hand for use in the first re-enactment by Collins. In addition, the Wailbri interpreter, Dick Jungala, whose services had been secured for the benefit of Kevin Stuart, was not asked to assist at the re-enactment involving Stuart. There was no evidence as to whether the police found out that Stuart spoke only English, and if so, how that information was obtained. Mr. K.N.Webb, a brother of the deceased, who was at Huckitta on the morning of 1 January, said that he saw four of the prisoners moving about with two of the constables that 16. morning; Ransome said that he saw the police questioning the accused separately that morning and that the accused were then showing the police various positions; and Picker deposed to seeing Chung and Sims talking to the prisoners during the morning. However, the learned trial judge found Webb unimpressive and sometimes confused, Ransome unreliable, and Picker to some extent confused. His Honour said, however, that he had "carefully considered all the evidence on this matter and I would not be prepared to find, even on the balance of probabilities, that such re-enactments took place. " His Honour's finding seems to assume that the onus with respect to the events of the morning at Huckitta rested on the accused. That is to be explained, however, by the context from which the quoted passage of his Honour's reasons are taken, for he was there considering the exercise of his discretion to exclude the confessions taken during the afternoon re-enactments. The question which his Honour first had to determine was whether the confession was shown by the prosecution to be voluntary, and the issue of fact which had been raised by the evidence referred to was an issue which, insofar as it bore upon the issue of voluntariness, rested on the prosecution. His Honour's finding may be construed as being that, wherever the onus lay, on the balance of probabilities no re-enactment took Place during the morning. So construed, it is a finding of 17. fact which was supported by the direct evidence of Chung and Sims who denied that any re-enactments took place during the morning of 1 January. His Honour's finding on this issue ought not to be disturbed. But being undisturbed, it appears that after the prisoners arrived at Huckitta at 10.00am, they were left without communication, except for the provision of lunch at 12.30pm, for the five hours preceding the first of the re-enactments at 3 o'clock in the afternoon. From the time that they were taken from the cells at Harts Range until the re-enactments commenced they were given no explanation as to the reason for their presence at Huckitta, nor was any request made of them to ascertain whether they consented to being taken to, and being required to remain, there. They remained in the shade until they were summoned one by one after lunch that afternoon. The four appellants were not mature or sophisticated people. Mark Collins was born on 25 August 1966. According to Mr. Meaney, the storekeeper at Amoonguna, and Mr. McConchie, a teacher at Giles House where Collins was subsequently detained, he 1s a shy boy. Little Sister Joanna, a nun who had resided at Amoonguna for several years, described Mark as rather quiet, obedient,"a good child". He 1s semi-literate, able to understand simple 18. English words. He speaks simple words at a simple level of conversation; at Amoonguna he spoke to his relatives in a mixture of Arunda and English. Mark Collins had little contact with his father; he lived mainly with his uncle and was often taken to stay with his grandmother at Yuendumu, a tribal settlement. Kevin Stuart was born on 23 February 1965 and according to Sims he spoke better English than the other accused. Mr. McConchie said that the highest he would Place Stuart's English was at Grade 5 or 6 level. Stuart lived with his mother and went to school at Amoonguna. He had had considerable contact with Little Sister Joanna who said that he shared the common reaction of children at Amoonguna who were rather scared whenever a police car came. Mrs. Daff, the Superintendent of Giles House, where Stuart was subsequently detained, said that Stuart was very disturbed when he was admitted there, especially after his mother visited him on his first evening, but that was on 3 January, two days after the re-enactment and after he had been charged with murder. Joyleen Williams was born on 14 August 1964 of a traditional Aboriginal family. Little Sister Joanna knew her as a shy girl who took some time to become confident with new acquaintances. She had never seen her 19, in the company of a non-Aboriginal male. Mrs. Duff noticed that Joyleen would not speak with adult males and looked sideways away from them. However, Joyleen had spoken to Mr. Meaney in general conversation. Her English, by Amoonguna standards, was good. Josephine Woods was born on 30 April 1955. It seems that she was of retarded mentality. According to psychological testing she had a reading age of 6 years and 6 months, but perhaps that is not indicative of her true ability. Little Sister Joanna described Josephine's English as "very basic" and her mental capacity or alertness as rather slow, even by comparison with Aboriginal people of similar age and background. She had not known Josephine to have much contact with white people. She thought that Josephine related more easily to children than adults. At Amoonguna she spent most of her time looking after the children of another Aboriginal woman named Irene Peters. She and Irene spoke Arunda among themselves. After the death of Irene's husband, and apparently in consequence of tribal custom, the two women left the house where he had died and went bush. Josephine had been married twice, but difficulties caused both marriages to falter. She had had a baby which suffered from deformity and which had died. Little Sister Joanna described Josephine as "a rather good-hearted girl". Mrs. Williams, a senior prison officer, had known her in a Brownie pack as a child when she 20. was thought to be a slow learner. When Josephine Woods came into Mrs.Williams' custody, Mrs. Williams was surprised that Josephine was able to understand readily everything that was said to her. Mrs. Williams thought that she had become much brighter and noted that she learnt craft skills quickly and was able to read a work roster. Mrs. Williams assessed her reading ability as average for an Aboriginal woman. Before the re-enactments commenced, Armstrong says that he was told by Chung that the children had stolen cars and that Mark Collins had shot the old man. Although Armstrong was a firm Christian who disapproved of such conduct his Honour thought that Armstrong "had a sound responsible approach to the role the police asked him to play as interpreter and friend...". And so, at about 3.00pm on 1 January, the first of the re-enactments commenced, in the course of which each of the appellants made a confession which was central to the respective cases made by the prosecution against them. Shortly after 3 o'clock Sgt.Chung called Mark over from where he had been sitting under the tree and introduced him to Armstrong. He said, "Mark,this is Bobby Armstrong. He speaks your Aboriginal language. Do you want him with you as a friend while I talk to you?" Mark Collins replied, "Yes", and Chung said to Armstrong,"Bobby,will you tell Mark in Aboriginal language that I wish to ask him some questions about the trouble here yesterday." Chung's evidence then proceeds: 21. "Armstrong then spoke to Collins in Aboriginal language and then I said to Armstrong, 'What did he say?' He said, yes. I then said, 'Bobby, will you tell Mark in Aboriginal language that whatever he tells us or shows us we will put down on that paper?' Armstrong then spoke to Mark Collins in Aboriginal language. I then said to Armstrong, 'What did he say?' He said, yes. I then said to Armstrong, "Bobby will you tell Mark in Aboriginal language that whatever he tells us or shows in that paper will later be shown to that judge in court?' Armstrong then spoke to Collins in Aboriginal language. I said to Armstrong, 'What did he say?' He said, yes. I then said to Armstrong, 'Bobby, will you tell Mark in Aboriginal language that he does not have to tell us or show us anything?' Armstrong then spoke to Mark Collins in Aboriginal language. I said to Armstrong, 'What did he say?' He said, yes. " In substance this evidence was corroborated by Armstrong and in particular Armstrong deposed to saying to Coliins in Arunda, "If you do not want to say anything you do not need to, but if you want to say something you can say it", to which Mark responded speaking faintly and nodding his head. Sgt.Chung then asked a series of questions of Mark Collins who replied in simple, halting English, and who moved from place to place as he demonstrated the events of the previous day. The photographs of the re-enactment show the boy standing at some places, and pointing out some objects. Chung's evidence set out the story as Collins told it to him: Collins had requested the old man to help them fix the tyres, and the old man's reply was that he could not help them fix the tyres; Collins had taken the Winchester rifle (from Amoonguna) out of the panel van, had put it down and had gone into the house where he took some money, a knife and a key for the Toyota station vehicle; he had given some of the 22. money to Joyleen and Josephine; he had taken another rifle from the house and had put it in a shed outside; Joyleen had said not to shoot the old man although Joyleen had loaded the Winchester with a bullet; Collins had picked up the Winchester, aimed it at the old man who was sitting reading a book on the tankstand and had fired; the old man walked some distance and fell down on the path; and Collins emptied the chamber of the gun. During the re-enactment Collins pointed out the discharged case of a .22 magnum round (subsequently proved by the ballistics report to have been fired from the Winchester). He told Chung that he had put the Winchester into the station vehicle and that the four of them had driven off. Chung and Sims said that during the re- enactment Collins appeared to have no trouble in understanding and exhibited no confusion or lack of comprehension. Armstrong says that Collins always answered what he put to him during the re-enactment and must have understood what he said. Each of the police officers testified to his showing no signs of stress or nervousness, of being overawed or of reluctance. After the re-enactment by Mark Collins was finished, there was a break of about five minutes and then Chung asked Joyleen Williams to go to the rear of the house. He said to her, "Joyleen, this is Bobby Armstrong. He speaks your Aboriginal language. Do you want him here with you as a friend while I talk to you?" She said,"Yes". He describes the conversation which followed: 23. "TI said to Bobby Armstrong, 'Bobby, will you tell Joyleen in Aboriginal language that I wish to ask her some questions about what happened here yesterday?' Armstrong then spoke to her in Aboriginal language. I said to Armstrong, 'What did she say?" He said, 'Yes'. «-.I said to Armstrong, 'Will you tell Joyleen in Aboriginal language that whatever she tells us or shows us we will put down on that paper?' Armstrong then spoke to Joyleen in Aboriginal language, I then said to Armstrong, 'What did she say?' He said, 'Yes, she understand.' I said to Armstrong, 'Will you tell Joyleen in Aboriginal language that whatever she tells us and shows us in that paper will later be shown to the judge in court?' Armstrong then spoke to Williams in Aboriginal language and I said to Armstrong, 'What did she say?' He said, ''Yes.' I said to Armstrong, 'Will you tell Joyleen in Aboriginal language that she does not have to tell us or show us anything?' He then spoke to Joyleen Williams in Aboriginal language. I said, 'What did she say?' He said, 'Yes.' I said, 'Will you ask Joyleen in Aboriginal language, does she want to show us and tell us?' Armstrong then spoke toWilliams in Aboriginal language. I then said to Armstrong, 'What did she say?' He said, 'Yes'. " Armstrong says that he asked her whether she understood the caution that she had been given and that she replied very faintly in language that sounded like Arunda that she understood, and he told Chung that she said it was all right. There is some evidence, somewhat unsatisfactory, from Armstrong that although Joyleen Williams may have been frightened or nervous during the interview, he considered that she probably was not nervous as she was not shivering or crying at that time. She described how she had been talking to the old man, had 24, gone to the toilet, had looked at some chooks, had got some of the money from Mark, and then had talked about killing the old man. She says that after they had talked about killing the old man Mark got the rifle and she went in another direction, got a drink from a hose and heard the gun go off. She had then seen the old man walking along, holding himself and then falling down at the place where the pool of blood was subsequently found. She told Chung that Josephine had put a blanket over the old man, Kevin Stuart had backed up the station vehicle, and that she had got into it. Armstrong says that Joyleen Williams did not appear to be frightened and she "told everything well". 'The police officers said that she spoke English well and responded readily. They also said that she did not appear to be in fear or awe of them or to be upset. Joyleen was then returned to the group and Chung, who was getting confused about their names, went over and got their names, addresses and ages from them. Chung next spoke to Josephine Woods. He deposed to the following conversation: 25. "I said, 'Josephine, this is Bobby Armstrong. He speaks your Aboriginal language. Do you want him here with you as a friend while I talk to you?' She said,'Yes'. I then spoke to Armstrong and said, 'Bobby, will you tell Josephine in the Aboriginal language that I would like to ask her some questions about what happened here yesterday?' Armstrong then spoke to Josephine in the Aboriginal language, and I then said to Armstrong, 'What did she say?' He said, 'Yes'. I then said to Armstrong, 'Will you tell Josephine in the Aboriginal language that what she tells us and shows us will be put down on this paper,' and Armstrong then spoke to Josephine in the Aboriginal language. I said to Armstrong, 'What did she say?' He said, 'Yes'. I said to Armstrong, 'Bobby, will you tell Josephine in the Aboriginal language that what she tells us and shows us in the paper will later be shown to the judge in court.' Armstrong then spoke to Josephine in the Aboriginal language. I then said to Armstrong, 'What did she say?' He said, 'Yes'. I then said to Armstrong, 'Will you tell Josephine in the Aboriginal language that she does not have to tell us or show us anything.' Armstrong then spoke to Josephine in the Aboriginal language, and I said, 'What did she say?' and he said, 'Yes'. I then spoke to Armstrong. I said, 'Bobby, would you ask Josephine in the Aboriginal language does she want to show and tell us?' Armstrong then spoke to her in the Aboriginal language. I then said to Armstrong, 'What did she say?' He said, 'Yes'. " In cross-examination, Armstrong deposed to saying the same things two days later on 3 January to Josephine Woods as he had said at Huckitta, and it appears that amongst the things that he said on 3 January was a statement to the following effect: "You are to tell it as it happened and so also help the police by telling it as it happened an@ in this way they will fully understand your story if you tell it as it happened." 26. Cross-examination of Armstrong, whose command of English was subject to some limitations and who might not reasonably be expected to recall with precision a comparison between words spoken two days apart does not advance the case for Josephine Woods very far. There seems to be no reason why the learned trial judge should not have found that Armstrong accurately translated what was said by Chung and Josephine Woods during the re- enactment. However, there is a suggestion by Dr.Harris, a psychologist who subsequently interviewed Josephine Woods and read her record of interview, that she may not have been able from the warnings given her to understand that she had a right to remain silent, that her understanding of the caution would be "questionable". Armstrong said that during the ensuing interview with Josephine Woods she answered readily and did not seem to him to be frightened at all. To explain this, however, Armstrong said that although he might know what he is doing in his body he cannot tell the difference in other people. He said, "When you hear someone crying, the voice, or fighting, or running away, something like that, and you can tell the difference, but I could not tell the difference the way she was standing there. I would not know." Josephine Woods said to Chung that she had gone into the house, had talked to the old man, had 27. looked at some chickens, had got some money from Mark, and "talk about steal car". She said that she had gone up to the shed and told Mark to shoot the old man and then she had gone to look for some eggs in the shed. She had heard the shot, had seen the o1€ man walking along the pathway to the position where he fell over, and that she had run into the house, got a blanket from the bed and had placed it over the old man. Armstrong attributes a further statement to Josephine Woods, saying that she had said that the old man had asked her to ring up on the wireless and that she had replied that she did not know how to operate it. The police officers attributed to Josephine Woods an ability to understand their questions and denied that she exhibited any signs which were inconsistent with the voluntariness of her confession. After the re-enactment by Josephine Woods she was returned to the group. Finally, Chung spoke to Stuart. He had been sitting on the ground during the hours occupied by the earlier re-enactments. Chung asked him to go up on to the back verandah of the homestead. Dick Jungala was not summoned. Chung deposed to the following conversation: 28. "After entering the rear of the homestead I said, 'Can you speak Aboriginal language?' He said, 'No, only English.' I said, 'This is Bobby Armstrong. Do you want Bobby here with you as a friend while I talk to you?' He said, 'Yes'. I said, 'I want to ask you some questions about this trouble yesterday; do you understand that?' He said, 'Yes'. I said, 'Anything I say or anything you say to me will be shown to that judge in court. Do you understand that?' He said, 'Yes'. I said, 'What do I mean?' He said, 'That is witness in court.' I said, 'You don't have to tell me anything if you don't want to. Do you understand that?' He said, 'Yes'. I said, 'What do I mean by what I have just said?' He said, 'I don't have to tell you.' I said, 'Do you want to tell me about that trouble?' He said, ''Yes'. Bobby Armstrong then spoke to Stuart. He said, 'Do you understand what that sergeant has told you?' Stuart replied, 'Yes'. " Armstrong placed a slightly different complexion on this conversation. He said that when he was introduced to Stuart, Stuart was asked "whether he felt happy about me being present as he was being asked questions and he said 'that's all right'. " During the ensuing interview Armstrong says that Stuart did not appear frightened and that he understood what he was being asked and answered questions willingly. At the same time when he was cross-examined as to whether Stuart maybe was "a bit scared too, a bit nervous", he replied "I could not look through all his body, what he was thinking and what his mind - I would not tell." He acknowledged that Stuart spoke normally, although softly. Chung deposed that Stuart described his arrival at Huckitta and went on to narrate what happened in these words: 29. "Go across and talk to old man and Josephine and Mark go around house and Mark and Josephine come back and give money. All go back to workshed and talk about that old man. We talk about shooting him because he would not help us. I took that Falcon down the back. Mark got that rifle and went around the back. I went to the Toyota at the front and tried to start it; cut wires. I heard shot. I see that old man walk. Then he fell down. Joyleen and Josephine go over to that old man. I started Toyota by wiring it. Then get key from Joyleen. Then start to go backwards and then Mark come and put rifle back in Toyota. Then we go. " He was then asked to point out certain places where events had occurred and he did so. He was also described by the police officers as exhibiting no fear or distress and exhibiting no reluctance to answer questions. After this re-enactment Stuart was returned to the area where the others were sitting and at 6.30pm all the prisoners were put into the cage and taken back to the Harts Range police station where they were put in the cells. On the following day at the Harts Range police station, an extensive written record of interview was taken from Mark Collins, and on 3 January records of interview were taken from the other four prisoners. After they were completed the prisoners were then taken to Alice Springs and brought before the court charged with murder. The learned trial judge heard evidence on voir dire as to the records of interview taken on 2 and 3 January, including tape recordings of those interviews. He excluded evidence of the records of interview taken from each of the appellants. 30. This appeal 1s concerned with his admission of the confessions made during the re-enactments that occurred on 1 January, consisting of what was then said and done, proof of which was tendered orally, and by the photographs. The admissibility of these confessions is governed by the common law, unaffected by statute. By the common law, a confession which is not shown to be voluntary is inadmissible. That is a rule which has been long established, and from which no court has a discretion to depart except under the authority of statute. Whether it is a desirable rule is not now for the courts to decide, though judicial dicta are not wanting to say that the rule is sometimes too serious an inhibition upon proper police investigation. Nor 1s 1t presently relevant to consider the origin of the rule. Lord Hailsham of St.Marylebone referred to that in Director of Public Prosecutions v. Ping Lin {1976] A.C.574 at p.600, pointing to the harshness of criminal procedure at the time when the rule was first devised. The amelioration of that procedure has not led to a revocation of the rule, and its application is a commonplace in modern criminal trials. The correct application of the rule in the trial of the appellants requires some exposition of its content, not by way of mere exegesis of previous judicial enuncirations of the rule, but in order to ascertain the relevant principle which has been judicially expressed. As Lord Reid said in Reg. v. Harz; Reg. v. Power [1967] 1 A.C. 760 at pp.820,821: 31. "But the common law should proceed by the rational development of principles and not by the elaboration of rules or formulae. I do not think that it is possible to reconcile all the very numerous judicial statements on rejection of confessions but two lines of thought appear to underlie them: first, that a statement made in response to a threat or promise may be untrue or at least untrustworthy: and, secondly, that nemo tenetur seipsum prodere. It is true that many of the so-called inducements have been so vague that no reasonable man would have been influenced by them, but one must remember that not all accused are reasonable men or women: they may be very ignorant and terrified by the predicament in which they find themselves. So it may have been right to err on the safe side. But if the tendency to reject confessions is thought to have been carried too far, it cannot be proper to try to redress the balance by engrafting on the general principle an illogical exception, which at best can only operate sporadically, leaving the mischief untouched in the great majority of cases. " Judicial statements of the principle are to be found in various common law jurisdictions, and it is not to be wondered at if the statements vary from jurisdiction to jurisdiction and if the influence of local statutes is found to colour the way in which judges have approached the resolution of cases where statute has confined the operation of the common law. This Court has recently considered (R. v. Duff) the operation of the principle as affected by s.68 of the Evidence Ordinance 1971 of the Australian Capital Territory, a provision which 1s similar to s.149 of the Victorian Evidence Act 1958 and s.20 of the New Zealand Evidence Act, 1908. In the Northern Territory, there 1s no provision corresponding with s.68 of the A.C.T. Evidence 32. Ordinance, and the common law of that Territory is to be found principally in the judgments of the High Court as the final court of appeal for the Australian Territories. If there are passages in judgments of other courts which are not to be reconciled with the law which is declared by the High Court, it is the judgments of the High Court which are definitive for the purposes of this appeal. The principle is to be found in the well-known judgment of Dixon J. (as he then was) in McDermott v. The King (1948) 76 C.L.R. 501 at pp.511,512: " At common law a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made. Thais means substantially that 1t has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, 1t cannot be voluntary. But it 1s also a definite rule of the common law that a confessional statement cannot be voluntary if it 1s preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement 1s made: 33. .per Cave J. in R. v. Thompson ((1893) 2 Q.B.D.12, at p.17). The expression 'person in authority' includes officers of police and the like, the prosecutor, and others concerned in preferring the charge. An inducement may take the form of some fear of prejudice or hope of advantage exercised or held out by the person in authority (Ibrahim v. The King ((1914) A.C., at pp.609,610; R. v. Voisin 18) 1 K.B., at pp.537,538). That is the classical ground for the rejection of confessions and looms largest in a consideration of the subject. ...The extreme applications which were made at one time of the principle that confessions obtained by the use of persons in authority of hope or fear were inadmissible gave this head of inducement an importance which has tended to obscure other forms of inducement. It is perhaps doubtful whether, particularly in this country, a sufficiently wide operation has been given to the basal principle that to be admissible a confession must be voluntary, a principle the application of which is flexible and is not limited by any category of inducements that may prevail over a man's will. . A joint judgment of the Court in The King v. Lee (1950) 82 C.L.R.133 (at pp.146,147) confirmed the breadth of the principle, saying: "For, although it cannot be doubted that the broad statement by Dixon J. in McDermott v. The King ((1948) 76 C.L.R., at p.51l) of the rule that a statement must be voluntary in order to be admissible is correct, the typical case of a non- voluntary statement was the case of a statement induced by a threat or promise by a person in authority. Indeed the rule has not seldom been stated as if a statement so induced were the only case of a non-voluntary statement. ...Even the often cited statement of the rule by Lord Sumner in Ibrahim v. The King ((1914) A.C., at p.609) is capable of a similar interpretation. His Lordship said:- 'It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it 1s shewn by the prosecution to have been a voluntary statement, in the sense that it has not been 34. Obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.' Moreover, the common law took an extremely wide view of what constituted a threat or promise and of what constituted a person in authority, and was very ready to infer inducement. The remarks of Parke B. in R. v. Baldry ((1852) 2 Den.430, at p.444; I69 E.R.568, at p.574) on the 'tenderness' of the common law in these respects are well known. " It is clear that "a fear of prejudice or a hope of advantage exercised or held out by a person in authority" 1s not an exhaustive statement of the factors which might, by overbearing the will, render inadmissible the confession thus obtained. Pressure of the kind to which Dixon J. referred may overbear a confessionalist's will and render the confession inadmissible. The ultimate question 1s whether the will of the person making the confession has been overborne, or whether he has confessed in the exercise of his free choice. If the will has been overborne by pressure or by inducement of the relevant kind, it does not matter that the police have not consciously sought to overbear the will. A finding that there has been an attempt to overbear by persons in authority is neither determinative of, nor an essential prerequisite to, a finding that the will of the person making the confession was overborne. In Ping Lin (supra), Lord Morris of Borth-y-Gest {at p.594) said: 35. " In my view it 18 not necessary, before a statement 1s held to be inadmissible because not shown to have been voluntary, that it should be thought or held that there was impropriety in the conduct of the person to whom the statement was made. Whether there was or whether there was not, what has to be considered is whether a statement is shown to have been voluntary rather than one brought about in one of the ways referred to. uw . A confession is not held to be involuntary merely because the confessionalist 1s by nature or temperament predisposed to confess and is furnished with an opportunity to do so; it is the effect of an external factor, of the kind referred to by Dixon 3. in McDermott's case, upon the will which determines admissibility. "Voluntary" does not mean "volunteered", but "made in the exercise of a free choice to speak or be silent" (Lee, Supra, at p.149). So the admissibility of the confessions as a matter of law (as distinct from discretion, later to be considered) is not determined by reference to the propriety or otherwise of the conduct of the police officers in the case, but by reference to the effect of their conduct in all the circumstances upon the will of the confessionalist. The conduct of police before and during an interrogation fashions the circumstances in which confessions are made and it is necessary to refer to those circumstances in 36. determining whether a confession is voluntary. The principle, focussing upon the will of the person confessing, must be applied according to the age, background and psychological condition of each confessionalist and the circumstances in which the confession is made. Voluntariness is not an issue to be determined by reference to some hypothetical standard: it requires a careful assessment of the effect of the actual circumstances of a case upon the will of the particular accused. There is nothing in Sinclair v. R. (1947) 73 C.L.R.316 to the contrary. In that case, although the accused was mentally abnormal, his particular abnormality was relevant only to the reliability of the confession (see pp.332, 333, 337) and, in the particular circumstances, not to its voluntary character. Indeed, Dixon J. distinguished that case from a case where the circumstances might render a confession inadmissible by overbearing the will of a confessionalist of defective mentality. He said (at p.333): 37. "Such other circumstances might, for instance, consist in some response to pressure or to other influences to which a sane person would not respond. In the present case there is no element of this kind and the case is, perhaps, singular in the fact that it turns altogether on the mental state of the person making the confession; neither intimidation nor pressure nor promise nor threat forms a contributing element. " However, Lord Morris in Ping Lin, supra, im reference to a case of alleged inducement, defined a mode of judicial approach which, on one reading, might be thought to have introduced an objective element. He said (at p.595): "In considering whether the statement of an accused was brought about by hope or fear the judge will have to ascertain all the facts concerning the alleged and so-called 'inducement'. If it is said to have consisted in something said by a person conducting an interview then the facts must be ascertained as to what was said and as to what were the circumstances. Then what was said must be considered in a common sense way in the light of all the circumstances: and what was said must be given in a common sense way the meaning which it would rationally be understood to have by the person to whom it was said. " I do not think his Lordship was assuming that all persons making confessions are rational, nor was he declaring that they must be taken to be rational. His Lordship was not controverting what Lord Reid said in Harz and Power (supra) "that not all accused are reasonable men or women". Rather 38. was Lord Morris concerned to ensure that a court does not tease out some fanciful meaning from or attribute some extravagant effect to what is said by a person in authority. If his Lordship meant that the effect of what is said upon the will of a confessionalist must be judged by reference to the effect it would have upon a notional rational person and not by reference to the effect it had in fact upon the confessionalist, the statement would not accord with the law as it has been stated in judgments of the High Court. What his Lordship emphasizes is the importance of ascertaining all of the facts which may bear upon the confessionalist's state of mind, and the importance of a practical commonsense assessment of the effect of those facts upon his mind. But the issue of voluntariness is not to be regarded as a mere problem of semantics: it is not resolved by a simply enquiry as to the meaning of the words used by a police officer (or Other person in authority). An assessment must be made of the effect of the verbal and non-verbal conduct of the police officer (or other person in authority) upon the will of the confessionalist in the circumstances in which the confession is made. If the evidence does not show that the confession was made in the exercise of 39. a free choice by the confessionalist to make it, the confession is inadmissible. As the meams by which a confessionalist's will can be overborne are various, one cannot postulate in advance of particular cases the extrinsic circumstances which will necessarily result in the exclusion of a confession as involuntary, or which will inevitably prove insufficient to found a challenge to its voluntary character. When all the facts are ascertained then "in a commonsense way" the court must find whether or no the will of the particular confessionalist was overborne. The enquiry is not the occasion for an excursion into the fields of philosophy or psychology. The law "accepts generally as an axiom the concept of the free human will - that is,a potentiality in the conscious mind to direct conscious action - specifically, the power of choice in regard to action" (per Lord Simon of Glaisdale in Lynch v. Director of Public Prosecutions [1975] A.C.653 at p.689). If the choice is to be accounted for by external pressure, or by some fear of prejudice or hope of advantage induced by a person in authority, the confession is held to be involuntary. Of course, the motives to confess, like the motives for many human actions, may be mixed and if there be a congeries of motives it 1s necessary to determine whether 40. the confession would not have been made but for pressure placed upon the confessionalist or some fear of prejudice or hope of advantage induced by a person in authority, or whether the making of the confession is really to be accounted for by motives of the confessionalist which are not referable to such pressure, fear or hope. This is a question of fact and of degree, to be resolved according to the particular circumstances of the case. In Cornelius v. The King (1936) 55 C.L.R.235 at p.246, Dixon, Evatt and McTlernan JJ in their joint judgment quoted and commented on the judgment of Brandeis J. in Wan v. United States (1924) 266 U.S.1 at p.14; 69 Law.Ed.131 at p.148: ',..A confession is voluntary in law if, and only if, it was in fact voluntarily made. A confession may have been given voluntarily, although it was made to police officers, while in custody, and in answer to an examination conducted by them. But a confession obtained by compulsion must be excluded whatever may have been the character of the compulsion, and whether the compulsion was applied in a judicial proceeding or otherwise. ' The notes to this case ((1924) 69 Law.Ed.131) give numerous examples where the compulsion alleged takes the form of prolonged and sustained pressure by police officers upon a prisoner in their hands, until, through mental and physical exhaustion, to which want of sleep and food sometimes contributes, he consents, in order to obtain relief, to make a confession of the crime. If it is alleged that the confession is the outcome of pressure, the question whether by persistent interrogation, or by other means, a prisoner has been constrained to confess so that his statement cannot be regarded as voluntary must sometimes be decided as a matter of degree. " 41. The factors which have been found to overbear the will of a confessionalist have sometimes seemed vague, and perhaps in modern times would not necessarily be thought to be effectual: for example, in Jarvis {1867] L.R.1 C.C.R.96, where 1t was said that if the person in authority said: "You had better tell the truth" or "It is better for you to tell the truth" a subsequent confession would have been held inadmissible. Conversely, 1n R. v. Coley [1868] 10 Cox C.C.536, the admonition "If you don't tell me you may get yourself into trouble and it will be worse for you" was held to render the subsequent confession inadmissible. Whether these cases would be decided in the same way today may be open to debate (see R. v. Bodsworth (1968) 2 N.S.W.R.132 at p.139), especially in the light of Lord Morris' speech in Ping Lin, supra, but the principle of which they are illustrations is undoubted. If a confessionalist, because of pressure or of inducement of the relevant kind, believes that he will or may be better off by speaking (or conversely, that a refusal to speak will or may make it worse for him), a confession which is made in that belief is inadmissible. As Gibbs J. said in Reg. v. Beere 1965 Qd.R.370 at p.372: 42. "It has long been held that statements to an accused person that it would be better for him to tell the truth, or that a statement made would be for his benefit, are inducements having the effect of rendering a subsequent confession involuntary." For this reason, much attention is paid to the customary caution given by police officers, the purpose of which is to remove the effect of any pressure or inducement of the relevant kind which might otherwise affect the confessionalist's will. As the Full Court of Victoria said in R. v. Banner [1970] V.R.240 at p.252: "But the primary purpose of a caution is to guard against the danger that a suspect or a prisoner, when subject to questioning by a person in authority, may wrongly suppose that he is being required to answer or that it will be the worse for him if he does not, and against the danger that he may, therefore, answer when his desire is to remain silent. " Whether a caution removes the effect of any pressure, hope or fear of the relevant kind is a question of fact. The Supreme Court of the Northern Territory, in laying down rule 3 of the Anunga rules (supra), emphasized the grave difficulties which may arise in practice when a caution is administered to an Aboriginal suspect. A mere enquilry "Do you understand that?" is "simply not adequate". 43. Again, the ascertainment of the effect of a caution is not merely a problem of semantics. If there is evidence from which an inference might be drawn on the balance of probabilities that pressure, hope or fear of the relevant kind has induced an erroneous belief in the confessionalist that he is obliged to speak, the confession must be rejected unless it be proved that the belief has been dispelled or that the confession 1s nevertheless made in the exercise of a free choice, The onus 1s on the prosecution to prove on the balance of probabilities that the confession is voluntary (Wendo v. The Queen (1963) 109 C.L.R.559) and unless the court finds at the end of the day, there being some evidence of pressure or inducement of the relevant kind, that those factors did not contribute to the making of the confession, it must be rejected. The rejection does not depend upon the exercise of a discretion: 1t is required by the application of a rule of law. That rule applies to all confessions made by persons prosecuted in the Northern Territory, whether or not they are Aboriginals. The rule of law 44, does not distinguish between black and white, educated and illiterate, sophisticated and simple. The rule applies uniformly, but its operation depends upon the circumstances of each case, and confessions made by those whose wills are more easily overborne - whether because of social condition, environment, natural timidity or subservience ~ will find reciprocally greater difficulty in being admitted into evidence. It 1S not always easy to distinguish between a rule of law and its operation upon facts which, though recurring in familiar and superficially similar patterns, evoke different results. Yet the differences are due to factual variations from case to case. The rule is the same for the Aboriginal and for the non-Aboriginal, but the consequence of applying the rule may vary if a particular Aboriginal exhibits, 1n given circumstances, a different strength ef will, or of understanding or of sophistication from that exhibited by a non-Aboriginal. With respect, I depart from a part of his Honour's reasons which he founded upon an unreported judgment in the Supreme Court of South Australia to which he referred in the following terms: 45. "His Honour then said that...if the accused had been able to express his state of mind he might have said: "Yes, I know that you have told me that I don't have to answer, but I am an uneducated black man from my tribe and you are white men in authority over me and I am frightened of you; so when you ask me a question I answer you because I can't exercise my right to keep silent when people like you ask me questions.' His Honour observed, rightly in my view, if his Honour were to exclude the statement on that ground, he would be creating a different law for Aborigines than the law applicable to white men. He concluded that the law does not know a separate category in the case of an Aboriginal being questioned by white people, especially white people in authority. " If, despite a caution, the will of a confessionalist is overborne by pressure placed upon him, the confession 1s inadmissible and it does not matter that a person in authority has offered no verbal inducement or that the confessionalist is an Aboriginal. If the interrogation of a particular confessionalist overbears his will, so that he speaks because the interrogation obliges him to do so and not because he freely chooses to do so, the confession is inadmissible. With respect, if the facts of a case were those which his Honour hypothetically recited, a rejection of the Aboriginal's confession would not create a different law for Aboriginals and for white men, though there may be differing consequences in applying the same law to persons who perceive authority in different ways. It does not follow as a matter of course that a confession which is the product of an interrogation of an Aboriginal person will be likely to be rejected. Wendo's case (supra) shows that a confession which is secured even in the solemnity of an official enquiry of unsophisticated native people may be accepted as voluntarily made. It is a question of fact and degree in each case. Though a confession is voluntary and admissible, there is a judicial discretion which may, in certain circumstances, be exercised to reject it. The power of a court in a criminal trial to reject admissible evidence is exceptional, and the foundation of the power and the warrant for its exercise are to be found in the attainment of objects which the courts have perceived to be desirable but which would not be attained in the particular case by the strict application of the rules of evidence. The object which the courts seek to attain by exercise of the power to reject voluntary confessions is the elimination of any unfairness to the accused. The same purpose 1s served by the rejection of other evidence which, though "admissible,would probably have a prejudicial influence on the minds of the jury which would be out of proportion to its true evidential value" (per Lord Moulton, Rex. v. Christie [1914] A.c.545 at p.559; Harris v. Director of Public Prosecutions [1952] A.C.694 at p.707; and see 47. Reg. v. Sang [1979] 3 W.L.R.263 as to this ground of rejection). A different purpose, the serving of the public interest in the observance of the law by the agencies of law enforcement, accounts for a discretion to reject evidence unlawfully obtained (Bunning v. Cross (1978) 52 A.L.J.R.561 at p.569 (and compare Reg. v. Sang, supra, in which, it seems, Bunning v. Cross was not cited). In the present case, we are concerned with confessions to the admission of which objection was taken on two principal grounds: involuntariness and unfairness, but it is also alleged that the police acted unlawfully, and it will be necessary to consider how unlawfulness in the conduct of an investigation affects the discretion to reject a confession thus obtained. The discretion which inheres in a trial judge to reject a confession does not arise unless the confession is voluntary in the common law sense (Lee's case, supra, at p.150) and the question whether a confession is voluntary is not to be confused with the question whether there are grounds for rejecting the confession as a matter of discretion. The principles which govern the resolution of the two questions are not the same, though 48. there is a common purpose served by the principles and some inevitable difficulty in defining the factual borders within which the common law rule and the judicial discretion respectively operate. The Judges Rules, and those special rules which Forster C.J., speaking for the Supreme Court of the Northern Territory in R. v. Anunga, Supra, laid down for the guidance of police officers interrogating Aborigines, are designed to avoid, inter alia, the overbearing of a suspect's will by an investigating police officer. Conduct which overbears the will of a confessionalist will frequently be found to contravene those rules, but the fact of contravention will add nothing to the grounds for excluding the confession so obtained. The more difficult question arises when it 1s found that the contravening conduct has not overborne the will, but exclusion of the voluntary confession is sought in reliance upon the contravening conduct. The judicial discretion then falls to be exercised in respect of a confession made by an accused in the exercise of a free choice, and something more than the mere fact of contravention of rules must be shown to warrant the rejection of the confession. 49, The origins of the discretion are traced by Lord Sumner in Ibrahim v. R. [1914] A.C.599 and referred to in Lee's case, supra, at p.148, and in Smith v. The Queen (1957) 97 C.L.R.100 at p.127. A voluntary confession will be rejected if, "having regard to the conduct of the police and all the circumstances of the case, it would be unfair to use his own statement against the accused." (Lee, supra, at p.154), and one cannot, by definition of the conception of unfairness in advance of the circumstances of a particular case, limit its application (ibid., at p.151). The purpose of the discretionary power 1s not the protection of the accused from the risk of conviction: it is his protection from the risk of conviction upon a statement which it is unfair to use, and the"'unfairness' of using a 'statement' must arise from the circumstances under which it was made" (Lee, supra, at p.152). The question is whether "in the light of all the circumstances, .«-.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", as Street J. said in a passage in R. v. Jeffries (1947) 47 S.R.(N.S.W.)284 at p.312, cited with approval in Lee (supra, at p.154). 50. The administration of justice commences long before the trial, and the exercise of the discretion to reject a voluntary confession is calculated to avoid or annul unfairness to an accused person in the administration of justice in his case. (R. v. Voisin [1918] 1 K.B.531 at p.539). The conduct of the police is, of course, a relevant factor because the police, by their conduct, do much to accord or deny fair treatment to an accused in the earlier stages of the administration of justice. Lee's case, supra, at p.154, defines the approach: "It as andeed, we think, a mistake to approach the matter by asking as separate questions, first, whether the police officer concerned has acted improperly, and if he has, then whether it would be unfair to reject the accused's statement. It 1s better to ask whether, having regard to the conduct of the police and all the circumstances of the case, it would be unfair to use his own statement against the accused." The consequence of referring the exercise of the power to a criterion which encompasses both the conduct of the police and the use of the confession in evidence is to deny that exclusion is the necessary or inevitable result of failure by the police to observe the Judges Rules or any other set of administrative guidelines. What is relevant 1s not so much a failure to observe rules or guidelines, but rather the unfairness in treatment of Sl. the confessionalist. That is not to deny the utility of guidelines, such as the Judges Rules, but the court is not concerned with their enforcement so much as with the consequence of non-observance. To be sure, some English judges took into account their "fear that nothing less than the exclusion of all such statements can prevent improper questioning of prisoners", and exclusion was ordered to remove inducement to the police to resort to that conduct (Ibraham v. R. supra, at p.614), and although views 1n support of this approach have been expressed in Australia (for example, in the Australian Law Reform Commission's Interim Report on Criminal Investigation, ALRC 2, p.69) it is not the approach taken by the High Court: "...the tendency to take them as a standard can easily develop into a tendency to apply rejection of evidence as in some sort a sanction for a farlure by a police officer to obey the rules of his own organization, a matter which is of course entirely for the executive." (Lee, supra, at p.154). What enlivens the power to reject a voluntary confession is treatment of the confessionalist which is not fair in the particular circumstances of the case; and those circumstances include the nature and constitutive facts of the offence and the time, place, 52. state of knowledge, personnel, facilities and other matters which shape or affect the course of an investigation. Impropriety by the police consists in a failure to accord that treatment. Although the Judges Rules and, in the Northern Territory, the Anunga rules, indicate some of the requirements of treatment which ought prima facie be accorded to a suspect, contravention of those rules or some of them is not conclusive. It is indicative of a departure from the standards which the court thinks appropriate in the generality of cases. It must be remembered that the police have a dual function cast upon them: the investigation of crime (which includes the interrogation of suspects) as well as the fair treatment of persons suspected of crime. It is not surprising if these functions sit uneasily together on the same shoulders, nor 1f the exercise of the discretionary power sometimes appears to favour one of these functions at the expense of the other. Fair administration of justice 1S consistent with varying treatment of an accused according to the exigencies of an investigation. The Judges Rules are not rules of law, and departure from them may be warranted according to the exigencies of an investigation. That is not to say that the Rules are a shibboleth. Departure from those rules is inevitably attended with the risk that a 53. confession thereby obtained will be excluded, and a deliberate departure is a circumstance which weighs heavily 1n determining whether the confession has been unfairly obtained. But the concept which governs the exercise of the discretion is unfairness, not contravention of the rules. Unfairness is not so much to be found as a fact as to be judged as a value. The circumstances including the exigencies of the particular investigation must be considered. That is not to say that the fair treatment of a suspect upon which the court insists varies in inverse proportion to the seriousness of the crime of which he is suspected, but it does mean that the steps which have to be taken properly to investigate serious crime are relevant in determining what is fair in the particular case. The factors relevant to guide the exercise of the discretion cannot be exhaustively stated, but two factors which always weigh in favour of admission may be mentioned: first, that it 1s generally desirable that probative and admissible evidence in proof of crime be admitted for consideration of the tribunal of fact; and second, ex hypothesi, that any failure to accord fair treatment to the confessionalist has not overborne his will. The weight of 54. these factors will vary, and other factors will appear, in the circumstances of each case. The second of these factors presents an enigma: if the conduct of police departs from the appropriate standards of fair conduct in an investigation but it has not resulted in the overbearing of the confessionalist's will, why is it unfair to use a voluntary confession? Leaving aside cases of deception, trickery and the like, it may be true to say that the enigma is partially unresolved. And the enigma has led, perhaps usefully, to a blurring of the distinction between the issues of voluntariness and discretion. Where the evidence of a confessionalist's reaction to police conduct has not sufficiently demonstrated an overbearing of the will, but the conduct itself has had such a grave tendency to unfairness as to lead the court to think that there is a real risk that the will may have been overborne, a rejection of a confession has sometimes been founded upon the discretion rather than upon a finding of involuntariness, And so the discretion has buttressed the protection of the confessionalist. The categories of exclusion are nevertheless logically distinct. In principle, the room for the 55. operation of the discretion is narrower, and the need for the exercise of the discretion to ensure fairness is less, than is frequently supposed. In practice, of course, it is immaterial that a confession which is inadmissible is rejected on discretionary grounds rather than on the ground that it is involuntary. Another factor arises for consideration in the present case. The police action in removing the prisoners from the cells at Harts Range and moving them without their consent (so far as the evidence shows) to Huckitta for the re-enactment was unlawful. It is not necessary to consider whether the initial arrest of each of the appellants was invalid or unlawful, nor to divine whether the purpose of those arrests was simply to detain the appellants for the purpose of the murder investigation. Let it be assumed for the present that their incarceration at Harts Range was lawful; there was yet no authority for the police to remove them to Huckitta. Their arrest and incarceration on the unlawful use charges no doubt restrained them from going away at a time when the murder investigation was pending, but it added nothing to the armoury of police powers in carrying out the investigation. By s.34{1) of the Police and Police Offences Ordinance, 1t is provided: 56. " Any person apprehended without a warrant shall be forthwith delivered into the custody of the member who is in charge of the nearest police station, in order that the person may be secured until he can be brought before a Justice to be dealt with according to law, or, if the person has been apprehended for any offence against this Ordinance or for any petty misdemeanour, or if in any other case the member deems it prudent to take bail, until he has given bail for his appearance before a Justice." Although this section does not expressly define the place in which an arrested person is to be held in custody pending his appearance before a court, the Ordinance evidently intends that the ordinary place of detention should be a police station, for s.41A provides that it is an offence to escape from a police station while in lawful custody. There is nothing in that Ordinance (nor, so far as we were advised, in any other law) which empowers the police to take a person who is incarcerated in a police station for any investigative purpose. To have taken the appellants without their consent out of the cells at Harts Range to Huckitta was a trespass to them and was unauthorized, 1f not prohibited, by the Police and Police Offences Ordinance (cf. R. v. Bruce 1965 Q.W.N.48; R. v. Macecek 1960 Qd.R.247 at pp.260,261). 57. Even if one allows to a police officer the power to take an arrested person from one place to another in order to investigate the offence for which he was arrested (as in Dallison v. Caffery {1965] 1 Q.B.348) - a proposition which it is not here necessary to consider - a police officer's power does not extend to the compulsory taking of a prisoner who is in custody at a certain place on one charge to some other place to investigate some other charge (see Bales v. Parmeter (1935) 35 S.R.(N.S.W.) 182 at p.190). The investigative duty of the police is circumscribed by law, and their duty never extends to a breach of the law. It does not necessarily follow, apart from express statutory provision, that confessional evidence obtained in consequence of the police officer's breach of the law must be excluded. A breach of the law by the police evokes consideration of the factors to which Barwick C.J. referred in The Queen v. Ireland (1970) 126 C.L.R. 321 at pp.334-335, when he said with reference to "real evidence" ; 58. " Evidence of relevant facts or things ascertained or procured by means of unlawful or unfair acts is not, for that reason alone, inadmissible. This is so, in my opinion, whether the unlawfulness derives from the common law or from statute. But it may be that acts in breach of a statute would more readily warrant the rejection of the evidence as a matter of discretion: or the statute may on its proper construction itself impliedly forbid the use of facts or things obtained or procured in breach of its terms. On the other hand evidence of facts or things so ascertained or procured is not necessarily to be admitted, ignoring the unlawful or unfair quality of the acts by which the facts sought to be evidenced were ascertained or procured. Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion. " The discretion does not arise for exercise, and the competing public requirements to which the Chief Justice referred do not arise for consideration only in cases where the evidence to which objection is taken is real evidence. Where unlawfulness appears, consideration has to be given to these public requirements whether the evidence obtained by the unlawfulness is confessional or real evidence. Indeed, the public requirements to which the Chief Justice referred are substantially the same considerations as those earlier mentioned which led English judges to exclude confessions 59. unfairly obtained. But the public requirements are of particular importance in cases of real evidence unlawfully obtained. Concepts of fairness and unfairness, which loom large in the exercise of a discretion to reject voluntary confessions, have little room for operation in governing the discretion to reject real evidence obtained in breach of a statutory prescription, as Stephen and Aickin JJ. pointed out in Bunning v. Cross, supra, at p.569. When a voluntary confession would not have been made but for unlawful conduct, however, a discretion may be exercised to reject it, particularly if the conduct breached a law for the protection of the confessionalist. Factors of the kinds which, in Ireland's case and in Bunning v. Cross, were said to be relevant in exercising a discretion with respect to the admission of real evidence, may be relevant in exercising a discretion with respect to the admission of voluntary confessions, but it is difficult to conceive of a case - though I do not say such a case could never arise - where a voluntary confession which might fairly be admitted against an accused person would be rejected in the public interest because of unlawful conduct leading to the making of the confession. When the admission of confessional evidence 60, 1s in question, the material facts are evaluated primarily to determine whether it is unfair to the accused to use his confession against him, and it would be only in a very exceptional case that the residual question would arise as to whether the public interest requires the rejection of the confession. However, the object which the exercise of a discretion to reject a confession ordinarily seeks to obtain is the fair administration of justice, and unfairness which 1s the product of unlawfulness is not placed outside the ken of the judge whose discretion is invoked. Equally, as Barwick C.J. pointed out in Driscoll v. Reg. (1977) 137 C.L.R.517 at p.523: "{I]n determining what is fair in the circumstances, the judge must not lose sight of the interest of the Crown as representing the community in the conviction by due and fair process of those who break the law." In the light of these principles, I turn to consider the admission of the confessions made by the appellants during the re-enactments. Before the evidence of the re-enactments was admitted the learned trial judge received evidence and heard submissions on voir dire. The first voir dire related 61. to Janice Edwards' statement made on 3 January; a second voir dire related to the re-enactments by the appellants and to the statements made by them in their records of interview taken on 2 and 3 January. At the end of the first voir dire, his Honour ruled in favour of admitting the evidence and gave ex tempore reasons; at the end of the second voir dire, his Honour admitted evidence of the re-enactment but rejected evidence of the records of interview. He delivered ex tempore reasons for his ruling on 1 August 1979 and later, on 12 September 1979, after the appellants had been convicted and sentenced, his Honour delivered his considered reasons which canvassed much of the enormous volume of evidence laid before him, and reviewed a significant portion of the wealth of authority touching the admission of confessions. An appellate court cannot interfere with a trial judge's ruling to admit a confession unless it is satisfied that he found facts wrongly, or that he misunderstood the true nature of the questions which fell for his decision or, if the admission turns upon the exercise of a judicial discretion, that the discretion miscarried. The reasons expressed by a trial judge are the starting point for the appellate court's discharge of its functions. Early in his reasons of 12 September, his Honour says: 62. " For the reasons I have already indicated, I have reached the view that the participation of the respective accused in the re-enactments and their being photographed in the course of those re-enactments were shown to have been voluntary in the sense that they acted in the exercise of their free choice, were not overborne or intimidated or subjected to sustained or undue insistence or pressure (McDermott v. The King (1948) 76 C.L.R.501). " His Honour's recollection was inaccurate, for the transcript does not contain any previous statement of his Honour's reasons for his view that the re-enactments were voluntary; his Honour's ex tempore reasons of 1 August were restricted to reasons for exclusion of the records of interview taken on 2 and 3 January. In the course of the considered reasons, however, his Honour referred to the requirements of voluntariness on several occasions. At the outset of those reasons, his Honour said: "The onus is on the Crown to establish that the confessions were voluntary and the burden of proof is on the balance of probabilities. The onus is on the accused to establish facts justifying the exercise of the discretion in their favour (Wendo v. The Queen 109 C.L.R.559 at 565). "™ No error appears in these propositions, provided it be remembered that, until a confession is found to be voluntary, no question of discretion arises and an onus to prove facts which may be relevant to the exercise of discretion does not pass to an accused in relief of the prosecution's duty to 63. prove any of those facts which are required to establish voluntariness. His Honour's reasons, being directed principally to matters of discretion, appear to cast the onus of proving relevant facts on the accused. Thus, in reference to the absence of the accused from the witness box, his Honour said: " It was very significant to me that no accused gave evidence on the voir dire. In respect of many findings of ultimate facts urged in the submissions on behalf of the accused there was really no supporting evidence, although it seemed likely that such supporting evidence would have been available or could have been available. Apart from the explanation referred to above, no explanation was advanced as to why there was not some evidence on the many issues and grounds raised for the exclusion of the confessional material. " In the later part of his reasons, his Honour recited the arguments urged on behalf of Mark Collins for excluding the confession as involuntary, saying: " It was next argued that in relation to the re-enactments there was a lot of facts and circumstances which would have created a feeling of oppression on the part of the accused and the oppression would have been such as to overbear the will of the accused. ...The facts relied upon by the accused, Mark Colkzns, in this respect were:- But as to whether these factors did or did not overbear the will of Mark Collins. 64, He was not told why he was being taken to Huckitta Station or that there would be a re-enactment. He and the other accused were left for five hours at Huckitta Station without being told anything thus causing apprehension, suspense and tension. The re-enactment was conducted without a friend or a parent. They were not told that the deceased was dead. There was no full record kept of the re- enactment. The admissions were not fully recorded. A tape recorder was not used. There was no discussion of Bobby Armstrong's role. " his Honour stopped short of making a finding of the caution administered to Mark Collins, and the unpleasant the task of making findings to guide the exercise of heat of 1 January, his Honour reverted to his discretion: From all this, 1t was said I should find something sinister about the re- enactment. I have considered all these matters. I think that I should accept the evidence that the accused did not appear nervous or oppressed and, in the absence of any evidence to the contrary, I am not prepared to infer even if I was satisfied about all the matters referred to above, that in the exercise of my discretion and within the principles expounded I should exclude the re-enactments and photographs on these grounds. After referring to the terms 65. In the penultimate part of the reasons, his Honour recapitulated some further arguments which appear to be directed to voluntariness, saying: " It was submitted on behalf of the accused, particularly Kevin Stuart and Joyleen Williams, that the police conduct to them in removing them from the cells and taking them to Huckitta Station for the re-enactments were offensive and virtually created an impossible situation for them in that they did not know their rights and would not have had them recognised anyway. The factors relied on were that they were not told where they were going or the reason for going, were given no choice about going, their rights about going and the presence of a parent or parent figure were notexplained, they were conveyed in the police cage which was without seats and open to the heat of the day, their wishes were never sought about going or not and all the circumstances pointed to the fact that the police had a fixed intention to have the re-enactments at Huckitta Station regardless of the wishes of the accused. When they arrived at Huckitta Station they were told to sit, were left in ignorance of the purpose of their presence there, were not told Quinton Webb had died, were detained under the tree for periods of five to seven and a half hours, and were provided with a friend as lip-service to the rules in Anunga's Case and in circumstances amounting to a farce and a sham. It was said that Kevin Stuart was so confused about what was happening that he thought he was to be a witness, not an accused. In the case of Josephine Woods it was urged that she was commanded in imperative terms to come with the police and carry out her re-enactment and that she really had no choice. I have found earlier in these reasons that the re-enactments by each accused were voluntary." If his Honour thought that he had earlier set out any reasons for his findings, he was mistaken, but he may have Meant merely that that was his conclusion and that his reasons were those which he immediately proceeded to set out: 66. "There was no violence, hostile or offensive conduct by the police. Bobby Armstrong was present as prisoner's friend throughout and proper cautions were administered. The re-enactments and submission to photographs were voluntary, and no sufficient reasons for exercising my discretion against their admission into evidence were shown." It will be necessary again to refer to the role of Bobby Armstrong as the prisoner's friend, and to the effect of the cautions; these were, as his Honour clearly appreciated, matters of importance. However, his Honour does not express his reasons for denying to the circumstances surrounding the re-enactments any relevant effect upon the will of each of the appellants. Yet that was the central issue for determination. It is an issue which, if resolved against the prosecution, makes all further issues irrelevant. His Honour must be taken to have found the issue in favour of the prosecution, of course, but the reasons which led him so to find are not apparent. From the facts which are not in dispute, an inference that the will of each accused was overborne by the pressure of the circumstances in which he was placed may readily be drawn, but there is no expression of his Honour's reasons for rejecting the inference save those quoted and some presently to be mentioned, and it is difficult to identify the reasons which satisfied 67. his Honour that each of the appellants spoke and acted during the respective re-enactments in the exercise of his or her free choice to do so. It is desirable to recall the facts which are not really open to dispute. Each of the appellants is a child or, in the case of Josephine Woods, somewhat child-like in mentality. They came from the environment of an Aboriginal settlement in which children appear scared by the arrival of a police car. They were not experienced in dealing with persons 1n authority. The police were big men physically, and the juvenile appellants were puny by comparison. The power of the police was manifest from the first moment of contact, when Kevin Stuart was pulled out of Lankin's vehicle and the four appellants were put in the cage at the back of the police vehicle. Assuming that they understood that they were being locked up at the Harts Range police station for taking the motor vehicles, the unexplained conduct of the police in taking them out of the cells, placing them in the cage and taking them to Huckitta on 1 January must have shown them that the police wanted to find out what they had done the day before. The intention of the police was too clear to mistake. The power of the police over the appellants appeared not only from the compulsory transporting of the appellants to Huckitta, but from the leaving of the appellants for hours without 68. explanation or conversation pending the arrival of Bobby Armstrong, and from the summoning of each appellant thereafter. After Armstrong was introduced to each respective appellant, the police requested information from him or her. Leaving aside the caution for the moment, it is most unlikely that any of the young Aboriginals would have felt free at that stage to deny the police request. It is difficult to envisage any one of the appellants who, being asked to provide information, would have felt himself at liberty to turn away from Chung and to go back to the group, saying "I do not want to speak", To expect any of them to act in manifest frustration of the police at that stage, after they and Bobby Armstrong had been brought to Huckitta for the re-enactments, 1s to expect action which is at odds with the background, age and race of the appellants, and their position as prisoners in the custody of the police. Whether an over-reaching of the appellants was intended or not, the antecedent course of events leaves the mind entirely unsatisfied that the answers given to the police request for information were made in the exercise of a free choice. The primary significance of the absence of parents or a prisoner's friend who might have spoken privately with the accused about his or her wish to answer questions is not that a failure to observe the Anunga rules enlivens a discretion: its significance is that there was nobody who might have assured the appellants that they were free to deny the police request for information without penalty. His 69. Honour cited a passage from a Canadian judgment, which aptly summarizes the relevant considerations, R. v. R. (No.1) 9 C.C.C.214 : "In view of a child's reduced capability of understanding his rights and his reduced capacity to protect himself in the adult world, the court must be particularly diligent in considering the voluntariness of a confession by a juvenile accused. The absence of a caution becomes particularly important because of the possibility of the child assuming he must answer questions. Another factor is the absence of the parents, since in most cases their presence is the best protection of the juvenile's interest. Also, the juvenile''s state of mind at the relevant time is a consideration on the issue of voluntariness. " This lays down no principle of law; it 1s a judicial appreciation of the difficulties in the way of finding that a child's confession is voluntary. That 1s a difficulty which is graver when the child belongs to a different cultural background from his questioner, suffers social and educational disadvantages beyond those to be accounted for by age alone, and is in the physical custody and has experienced the power of his questioner. The Judges Rules, the Anunga rules and the cases to which his Honour referred as to the protection of children being interrogated testify to the long judicial experience of the risk that a person in custody, an Aboriginal or a child may wrongly suppose that he is liable to answer an interrogation, that specific 70. protection is required to safeguard against that risk, and that, in the absence of safeguards it may not be possible to conclude that a confession is voluntary. In the present case, the persons in custody suffered from all of the disabilities against the effects of which the several judicial guidelines were designed to give protection. Unless the evidence showed that there had been some supervening circumstance to remove the pressures to which the circumstances had tended to subject each appellant's will, it would be wrong to find that a confession made in response to his or her custodian's request for information was voluntary. In my judgment the evidence falls short of showing that those pressures were removed. The introductory conversation before each of the first three re-enactments did not remove them: each of Collins, Williams and Woods was told that he or she was to be spoken to by Chung, and was asked not whether he or she was Willing to talk to him but whether Bobby Armstrong was wanted as a friend while that happened. Then Chung said that he wished to ask questions "about the trouble here yesterday". There was no mistaking his desire and intention. Next the particular appellant was told that what was to be said or shown would be recorded for the 71. judge in court, which might reasonably have conveyed Chung's expectation that there would be something to be recorded. To say at that stage of the conversation to any of the appellants that he or she "does not have to tell us or show us anything" is an entirely inadequate means of guarding against the danger that the particular appellant might wrongly suppose that he is being required to answer or that it will be the worse for him if he does not (Banner, supra); and that 1s so even if 1t were shown that the particular appellant was capable of understanding the meaning of the words employed. Nothing would suffice to prove voluntariness short of a clear appreciation and belief on the part of the particular appellant, proved by acceptable evidence, that he or she was not under any obligation to speak. A mere nod or the word "yes" does not prove that any appellant had such an appreciation and belief. The failure to observe rule (3) of the Anunga rules not only denied to each of these appellants the protection which the Court intended but it deprives the prosecution of the ability to prove that the following confession was voluntary. The presence of Armstrong does not advance the prosecution case. A prisoner's friend is intended to enhance the suspect's ability to choose freely whether 72. to speak or to be silent. Bobby Armstrong became, from the beginning of each of the interviews with Collins, Williams and Woods, an interpreter acting in response to police instruction, and he was manifestly not available for private consultation with any of the appellants to whom he was translating the introductory remarks of Sgt. Chung. And if the particular appellant did think that he or she was required to answer Chung's questions and did so, lack of any appearance of fear, awe or distress during the interrogation is neutral in proving voluntariness - for the absence of those emotions is entirely consistent with the fulfilling of any obligation to answer which an appellant may have thought implicit in the questioning. In the cases of Collins, Williams and Woods, there is no acceptable evidence that the effect of the pressure which is to be inferred from the agreed circumstances was alleviated by the warning or the presence of Armstrong. The inference which I would draw from the circumstances 1S that each of these appellants would have believed that a refusal to answer would make it worse for him and that he would be better off by answering because 73. he was obliged to do so. At all events, there is no satisfactory proof that any of them appreciated and believed the contrary. I am thus constrained to conclude that his Honour's finding that the confessions were made voluntarily by these appellants was wrong. This is a conclusion of fact. In Stuart's case, the prosecution case 18 stronger. First, because his ability to speak English is greater and the risk of misunderstanding what Chung said was less; second, because he answered Chung's question "What do I mean by what I have just said?" by saying "I don't have to tell you". With some hesitation, I nevertheless conclude that his Honour's finding was wrong in Stuart's case also. Armstrong's presence 1s of no greater significance in his case than in the cases of the other appeliants. And his understanding of the meaning of the cautionary words used by Chung does not prove on the balance of probabilities that he appreciated and believed that it would not be worse for him if he did not answer. Stuart had been kept all day at Huckitta, he had seen the other three go forward to be interviewed and then to accompany the police during a re- enactment. To think that the 13-year old Stuart understood that he was in any real sense free to deny Chung's requests for information seems fanciful to me. 74. Had it been right to find that the confessions were voluntarily made, the question would have arisen whether the exercise of his Honour's discretion to admit the confession had miscarried. An appellate court must be "slow to interfere" with such a discretionary decision, as Street J. said in R. v. Jeffries, supra, and error in fact or principle must appear in the decision under appeal. If an appellate court finds error in the findings of fact according to which a trial judge determines the exercise of his discretion, it does not follow that the exercise of discretion should be reversed. The appellate court may decide to exercise its discretion in the same way upon the facts found as it finds them. In the present case, there are some findings made by the learned trial judge in the course of determining the exercise of his discretion which were attacked on appeal. One of these findings related to the sufficiency of the police enquiry at Amoonguna for the parents of the four appellants. Constable Lloyd's failure to locate the parents was said by his Honour to have followed a "due search and enquiry" and part of his Honour's findings rested on an inference which he drew that Joyleen Williams' father knew, at 3.10am on 1 January, that in addition to Collins 75. and Stuart his daughter was in custody at Harts Range with the other accused whose names he, Williams, had given to the police at 11.00am on 31 December. Even if that inference might have been open, there is no reason to believe that anybody at Amoonguna at that time knew that the accused were suspects for murder, yet the purpose of the visit to Amoonguna, if it has any present relevance, was to apprise the parents of the appellants of the need of their respective children to have some support in the course of the murder investigation. His Honour also found that Mr. Williams, who was president of the central Australian Aboriginal Legal Aid Service, knew enough facts at 3.10am on 1 January "to take appropriate action to arrange representation for the accused before any real interrogation began", despite the fact that Constable Lloyd only knew of two (Collins and Stuart) who were involved in the trouble at Huckitta and if Lloyd had found the parents of Collins and Stuart he yet would not have given them that information without further instructions from his sergeant. If the contact with Mr. Williams, who was affected by liquor when Lloyd spoke to him, was intended to be notification to Aboriginal Legal Aid, it is difficult to see that a duty resting on the police to inform Aboriginal Legal Aid has any substance in 1t. 'His Honour seems to discount the failure to make a more adequate search for the appellants' parents and to apprise them of the nature of the investigation which was shortly to take place. With ry) 76. reference to a standing order that it is desirable that police interview a child in the presence of at least one of his parents, his Honour thought that in the circumstances "there was sufficient compliance by Sergeant Chung with the standing order" and added "Even if I am wrong in this view and there has been a failure to comply, because of the exigencies of the investigation and the apparent lack of interest of and inability to communicate with the parents, I discount entirely the failure to comply with this standing order." Such a finding appears to attribute to the parents of all the appellants a lack of interest which his Honour attributed to Mr. Williams. There 1s no evidence to show that, if any parent had been told of the murder investigation, he or she would not have responded in some way to safeguard the interests of the child. His Honour's findings are directed to evaluating the conduct of the police which is relevant, of course, to the treatment and protection of each confessionalist; but the essential question is not compliance by the police with guidelines or directives, rather it is the fairness of the actual treatment and protection accorded to each confessionalist. The absence of a parent or friend before and during each re-enactment is the principal circumstance, and the reasons 77. why no parent or friend was present show whether it was unfair in the circumstances to proceed with the re-enactment in the absence of a parent or friend. Difficulties of distance, time and communication, possible shortage of police personnel, and difficulties in finding and speaking with the Aboriginal inhabitants at Amoonguna, combined with the imperative requirements to ascertain how Webb was murdered, no doubt accounted for the course which the police in fact adopted. The exigencies of investigation were rightly to be taken into account by his Honour in determining whether it would be fair toe use the confessions against the respective appellants. And his Honour evidently thought it was fair in the circumstances of 1 January for the police to question the appellants in order to ascertain the facts of the murder. If one were to assume that the confessions were voluntary, the principal ground for submitting that it would be unfair to use the confessions in evidence would be cut away, even though his Honour's recited findings were set aside. Further, the unlawfulness of taking the appellants to Huckitta would not necessarily lead to rejecting the confessions, for the unlawfulness would not have made it unfair to seek the voluntary giving of information from the appellants who were the only witnesses to the crime, and there is a countervailing public interest in obtaining information to be tendered in proof of crime. 78. To assume voluntariness, one must discount the effect of the circumstances which tend in favour of the discretionary rejection of the confessions: then all that is left is the duty of the police to interrogate the witnesses of the crime. A challenge to his Honour's admission of the confessions would therefore fail. Conversely, unless the effect of the failure of the police to observe the Anunga rules, and the rules with respect to the interrogation of children, and the effect of unlawfully taking the prisoners to Huckitta, are discounted, the Court is left with circumstances which deny voluntariness in the confessions for reasons earlier stated. The ground upon which I would uphold this appeal is not the setting aside of his Honour's discretion but the setting aside of the finding that the confession was voluntary. I would set aside the convictions. Such a result may appear to place a fetter upon the investigation of crime, at all events when the criminals are young, simple and unsophisticated people, But as Windeyer J. pointed out in Rees v. Kratzmann (1965) 114 C.L.R.63 at p.80: 79. "There is in the common law a traditional objection to compulsory interrogations, Blackstone explained 1t: 'For at the common Taw, nemo tenebatur prodere seipsum: and his fault was not to be wrung out of himself, but rather to be discovered by other means, and other men' : Comm.iv,296. The continuing regard for this element in the lawyer's notion of justice may be, as has been suggested, partly a consequence of a ~ persistent memory in the common law of hatred of the Star Chamber and its works. It is linked with the cherished view of English lawyers that their methods are more just than are the inquisitorial procedures of other countries, " I should add that, if the convictions were set aside, I should think it necessary to order a retrial. Upon the authority of Reg. v. Coney [1882] 8 Q.B.D.534 and R. v. Russell (1933) V.L.R.59, I would conclude that there is evidence remaining after excluding evidence of the re- enactments sufficient to support an adverse verdict against each of the appellants. Evidence of assent to the crime and encouragement of the principal offender could be found in the circumstances of presence at the scene of the killing, an absence of warning to Quinton Webb (which might be inferred from the fact that he was evidently shot while he was at the tankstand), and the flight of the appellants together in the station Toyota before Ransome and Janice Edwards returned from the dam. Unless an adverse verdict could be supported no new trial should be ordered; and no account should be taken of the prospect of the Crown strengthening its case with new evidence {Reid v. The Queen 80. [1979] 2 W.L.R.221 at pp.224,225). Although exclusion of evidence of the re-enactments would substantially weaken the Crown case, that does not necessarily require refusal of an order for a new trial (Reid, supra, at p.227). As O'Connor J. said in Peacock v. The King (1911) 13 C.L.R. 619 at p.675 in reference to the discretion to order a new trial: "In exercising the discretion given by the Statute the interests, not only of the prisoner, but of the efficient administration of justice ought to be considered, always providing that no injustice 1s done to the accused, " In this case, though there are several factors which weigh in favour of refusing a new trial, the seriousness of the offence and the desirability that the ultimate verdict be the verdict of a jury, not the order of an appellate court, would lead me to order a retrial. I certify that this and the 74 preceé.ng pa 23 are a true cony of ths Reasons for Juignent herein of his Honour Mr. Justice Brennan, S Krieger Adsociate Dated: #§ dune 1980.