Silence in Court

Teresa Ashforth

Chapter Two: Aspects of evidence

Introduction
The Judges' Rules; Investigation; Prosecution
Interrogation
Aboriginal People and the Anunga Rules
Voluntariness, Confessions and Admissions
'Verbals'
Police Response
Existing Safeguards


Introduction

The physical restraint under which a suspected offender is initially placed in his or her encounter with representatives of the law is merely one aspect of what can become a progression towards a more complete and total loss of freedom which is subsequently sanctioned and endorsed both by the legal institution and the community that institution is set up to represent and serve. Representatives of the law take for granted a number of rules governing linguistic and communicative behaviour - the compliance of the linguistically-constructed subject is assumed - and any effort on his or her part to subvert or disturb this natural' order is rigorously suppressed as being both unnatural and perverse. The system is kept secure by its own set of discourses. Setting aside therefore the more philosophical considerations regarding crime, punishment, revenge or rehabilitation, it is appropriate simply to examine the comfortable fiction by which we persuade ourselves that the law' when it takes its course does so without fear, favour or affection'. For there is an alternative viewpoint which sees the operation of the law as having built in biases deriving from its reliance on certain assumptions and practices embedded in its discursive forms which ensure systematic variation in how it affects different classes of people, especially minority groups whose social and political power is weak.

Amongst the many in our society who, culpably or otherwise, find themselves involved in this process, one group, Aboriginal people, stands out with such remarkable prominence, in view of their relatively small number in relation to the population as a whole, that more and more questions are increasingly being asked as to why this should be so. And since, taking the country as a whole, and as confirmed by the Royal Commission into Aboriginal Deaths in Custody in its Interim Report (IR:Table 16:p.99) Western Australia holds the dubious honour of having the highest proportion of imprisoned Aboriginal people, as against others, it is appropriate to look at the situation of the Nyungar in particular in pursuit of one at least of all the possible causes which, taken together, might account for such an anomaly.

There is no longer any question but that Aboriginal people are particularly disadvantaged in their dealings with the law. Lawyers like Elizabeth Eggleston in particular, as well as many others, have opened up this field of enquiry, and extensive documentation now attests to it. Observations such as the following by the late Justice J. Murphy, (cited by Matthew Foley (1984:171) abound in the available literature: "Australia's history since the British entry in 1778 to a land peopled by Aborigines has been one of racism and racial discrimination which persists strongly".

Given therefore that such disadvantage has to do with a particular minority in the community in their dealings with the law, it stands to reason that if the law itself is acknowledged by its own practitioners to be so imperfect as to be in constant need of reform, the disadvantage peculiar to that minority can only be compounded. Lawyers exploring the problem are of the opinion that the laws of evidence in particular are a crucial area in need of review and reform in this regard, and a considerable amount of work has already been undertaken, and is ongoing, in this area.

Laws of evidence, in practice, are rules about kinds of discourse - what discourse is to count as potent and effective, and in what form, and what is to be disqualified. In a very broad sense of course all rules of law are rules about kinds of discourse but in a particular sense also rules of evidence are about what is to count as proof.

James Bradley Thayer, in a 'classic' 19th century text (Cowan Z and Carter, P.B. 1956:fn267) cites the introduction to the Digest of Evidence where the author refers to the seemingly "hopeless mass of confusion" created by the negative rules, declaring what is not evidence, which comprise the great bulk of the law of evidence itself. The writer describes the perplexity engendered by such a situation as follows:

I found that I was in the position of a person who, having never seen a cat, is instructed about them in this fashion: Lions are not cats in one sense of the word, nor are tigers nor leopards, though you might be inclined to think they were'. Show me a cat to begin with, and I at once understand what is meant by saying that the lion is not a cat and why it is possible to call him one. Tell me what evidence is, and I shall be able to understand why you say this and that class of facts are not evidence. The question, what is evidence?' therefore gradually disclosed the ambiguity of the word.

And yes, observes Thayer (1956:268):

When the writer says that he is assumed to know what evidence' is, he states what is true enough; the law does take it for granted that people know how to find out what is and what is not probative as a matter of reason and general experience.

Again and again, almost as a leaven in the always authoritative prose within which legal concepts and principles and nice matters of logic are exhaustively explored and defined, one finds such expressions as this one on the matter of "reason and general experience" and others like it which reveal the awesome fissures which really exist in what might otherwise seem to be a precise and scientific' method. Thayer, conscious of this (p. 271) proclaims:

Let it be distinctly set down, then, that the whole process of legal argumentation, and the rules for it, essential as these are, and forever pressing upon the attention, are mainly an affair of logic and general experience, not of legal precept. I say mainly, because the reasoning process, in its application to particular subjects, gets always a tincture from the subject matter. ... in law, as elsewhere, in adjusting old and universal methods to the immediate purposes in hand, special limitations, exclusions, and amplifications have to be taken into account. In particular and emphatically, in legal reasoning, such peculiarities spring from the practical aims of a court of justice and the practical conditions of its work ... . With them the search for truth is not the main matter; their desire to know this, and their ability to use it, are limited by the requirements of their main business, namely that of awarding justice i.e. awarding it so far as they may, under the rules of law, and according to established usages and forms.

"The peculiar character and scope of legal reasoning" says Thayer, "is determined by its purely practical aims and the necessities of its procedures and machinery". Small wonder then that a gap exists between the needs, and indeed rights, of the individual subject and the machinery within which he or she is inscribed. In short: "It (the scope and purposes of legal reasoning) must adjust its processes to general ends, so as generally to promote justice, and to discourage evil, to maintain long-established rights, and the existing governmental order. The judicial office is really one of administration".

The power to award' or promote' justice therefore can in a very real sense it would appear be said to be constrained by the exigencies of administrative order and, ultimately, decided by the dictates of "commonsense" and "sound reasoning" (Thayer:275):

Amidst them all the great characteristics of the art of reasoning and the laws of thought still remain constant. As regards the main methods in hand, they are still those untechnical ways of all sound reasoning, of the logical process in its normal and ordinary manifestation; and the rules that govern it here are the general rules that govern it everywhere, the ordinary rules of human thought and human experience, to be sought in the ordinary sources, and not in law books. And so a knowledge of these processes and methods is presupposed in all judges and lawyers.

To say that the "ordinary rules of human thought and human experience" (deriving from "ordinary sources" and said to be presupposed in "all judges and lawyers") are what constitute the "great characteristics of the art of reasoning and the laws of thought" which form the basis for legal reasoning, may be a somewhat circular way of attempting to explain the inexplicable; it does at least however, in pointing to the indeterminacy at the very heart of the legal process, justify the attempts of those who endeavour to problematise some of the taken-for-granted assumptions which continue to flourish in late 20th century legal discourse.

And, quite apart from the consideration of such aspects of the matter as the conventions, personal values and philosophies espoused by the legal agents of such processes, it is also important to bear in mind those "general ends" such as "governmental order" which can still have an equally important bearing on both the conduct and the outcome of contemporary legal action.

Amongst the many critics of the present Australian system some are particularly outspoken in this regard. Sydney lawyer, Michael Tubbs, (1985:119) observes:

There seems little doubt political and public pressures, however created or measured, have shaped the way both law enforcement bodies and the courts have decided what is an appropriate course of conduct. In effect it can be demonstrated that the courts invoke something based on a concept of the higher public purpose', in order to suppress crime. The form and substance of the justice system are almost total strangers.

Tubbs cites R v. Ireland (1970) and Bunning v. Cross (1978) as key decisions in what he calls "a surprisingly rapid deterioration in both the form and substance of the Australian justice system". Prior to Ireland's case, according to Tubbs, Australian law paralleled English law on the admissability of illegally-acquired evidence, which was to exclude such evidence if to admit it would operate unfairly against the accused - he cites Karuma v. The Queen (1955). Even then however, English law (prior to Ireland's case) was "virtually impossible to reconcile with other fundamental tenets upon which English common law has been understood to be founded" and is in "stark contrast" to the law in the United States where the accused is given the protection of the Bill of Rights. Baldly stated by the judges of the principal judgement in Bunning's case (in analysing and then interpreting Ireland's case):

What Ireland involved is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy ... . This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process under consideration.

"There can be little doubt", Tubbs observed, "that Bunning's case has been taken as an open invitation to law-enforcement authorities to obtain their evidence by whatever means, be they fair or foul". The fact remains of course that in Anglo-Australian law, evidence is admissable even though it was obtained by illegal or improper means, but the court has a discretion to exclude it if its admission would operate unfairly against the accused. The discretion' is narrow however and, although it is frequently mentioned, is rarely acted upon. It is far more common for example for police misconduct to be criticised by the court than for evidence obtained as a result of such misconduct to be excluded. Frequently mentioned are the Judges' Rules' but the latter are rarely given real force or strictly applied, and questions as to whether they have been complied with in the questioning of suspects are seldom exhaustively or adequately explored.

The Judges' Rules; Investigation; Prosecution

The Judges' Rules were formulated in 1912 in England by the Judges of the King's Bench Division as a guide to police in the questioning of suspects and arrested persons. A new set of rules was subsequently approved by a meeting of all the Queen's Bench judges in 1964. According to the Oxford Dictionary of Legal Terms: A person must be cautioned (q.v.) when a police officer wishes to question him and again formally cautioned when he is charged or informed that he may be prosecuted. The rules have no statutory or other force, but state, generally, the principles relative to the cautioning of suspects and their interrogation, and police who follow the rules are unlikely to be criticised or to have information they elicit held inadmissable. The Rules are said to have originated in a letter of 1906 by Lord Chief Justice Alverstone to the Chief Constable of Birmingham in answer to a request from the Chief Constable for advice on the proper conduct of police inquiries and the mode of questioning of suspects. Four rules were formulated and approved by the King's Bench judges in 1912 and five more in 1918.

According to Gobbo et.al. (1979:533) the rules are neither mandatory nor are they expressly directed towards the court. They have been referred to as "rules of conduct directed to the police and no more". The Judges' Rules have an almost identical equivalent in New South Wales and Victoria in police regulations and Standing Orders respectively. In Queensland, Tasmania and in Papua New Guinea with certain modifications the Judges' Rules have been adopted. They have not however, been adopted either in South Australia or in Western Australia. These two states "have applied the general test commended by the High Court in R v. Lee and earlier cases". As noted by Rees, (1982:44), according to the decision taken in that case it was established that once a confession has been found to be voluntary it may be rejected in the exercise of the trial judge's discretion 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".

The effect of the Rules is that when a police officer is endeavouring to discover the author of a crime, he may question anyone without giving a caution, but, when he has made up his mind to charge someone, he should caution him by asking him whether he wishes to say anything in answer. The accused must be told that he is not obliged to say anything, but that what he does say will be taken down and used as evidence; questions should not be put to those in custody without a caution, but there should be nothing in the nature of a cross-examination even when the caution has been given; a statement made by the accused before there is time to caution him is not inadmissable but all statements should be written down and read over to the accused as soon as possible. In exercising his discretion, the trial judge is entitled to treat as relevant but not decisive' the question whether the impropriety was likely to have produced an untrue confession. Further, it is established that an accused person bears the onus of showing a case for the exercise of the judge's discretion to reject a confession voluntarily made and therefore prima facie admissable'.

As outlined by O'Connor (1982:165), in the Scottish legal system there is a clear division of responsibility for the enforcement of the criminal law between police and specially-trained government lawyers. The police bear responsibility for the investigation of alleged offences to the stage of forming a suspicion sufficient to found a charge. A lawyer, the procurator fiscal' controls the conduct of the prosecution, beginning with the framing of the charge, and is able to direct the police in relation to any further investigation and evidence-gathering necessary for the preparation of the case. The rationale and justification for this type of system is based on the fact that a lawyer's training and ethical duties equip him or her to prosecute criminal matters more effectively and, in the eyes of the community, more fairly than the police.

Many people are seriously critical of the extent to which police in Australia, especially at the summary level, are involved in the actual prosecution of charges. For, although the primary functions of the police might, ideally speaking, be seen to be the detection and investigation of crime, such functions are to a very large extent conflated with activities and procedures which are overwhelmingly motivated by prosecutorial considerations. This has long been a contentious and generally unresolved aspect of the Australian Criminal Justice System and has been for a long time, and currently still is, under review by the Australian Law Reform Commission. The new Australian Capital Territory system is an exception, of which Justice Lusher in his report (cited below) observed: "It is said that the atmosphere of the Court has been changed completely and for the better".

As cited by O'Connor (1982:151-169) in the Report of the Commission to enquire into New South Wales Police Administration, published 29 April 1981, headed by Justice E.A. Lusher and referred to as the Lusher Report, a comprehensive review was undertaken of the question of separating the investigative and prosecutorial function. Former Attorney General Kep Enderby QC had advocated adoption of a system of strict division of functions throughout Australia and is quoted by O'Connor (1982:166) as saying:

The police function is too important to be allowed to overlap into prosecution work. Police work is basic to the proper functioning of any modern community and the police have enormous power. It is essential that the exercise of that power be seen to be fair and above suspicion and that the police be not weakened by criticism that attaches to them when they become involved in prosecuting.

In his report Justice Lusher detailed the usual arguments for and against the involvement of police in the prosecution of cases. Among other matters raised by him three conclusions were of particular interest: firstly that the special education and training of police prosecutors was not an activity which was part of the police function as understood by the community nor was it in the public interest for such an informal system of legal education' to be conducted; secondly, he raised the technical question of whether police prosecution was consistent with Legal Practitioners Act restraints seeking to prevent practice by unqualified persons; thirdly, Justice Lusher considered that it was undesirable to use police at the committal stage of corporate and commercial prosecutions. However, he noted (1982:168) that it is in the courts of petty sessions and of summary justice that the citizen has the most contact with the administration of justice:

and where impressions and opinions of it are formed and consolidated and where he is most likely to be unrepresented ... The police function should not intrude into organised active participation in the administration of justice.

In O'Connor's view (1982:168) "the case for a strict separation of investigative and prosecutorial function is inescapable" and the model of a qualified salaried prosecution service has now been widely recognised as an appropriate and viable one. Police should be freed to concentrate on investigation, and detection functions, and should no longer be involved in the conduct of prosecutions.

The Commission found (ALRC 13:4-7) as a result of many hearings over a number of years, that Aboriginal people are "peculiarly vulnerable to police interrogation for a number of reasons". They listed the following:

1.Language (difficulties of both communicating and comprehension are "very real" for many Aboriginals);

2.Concepts of Time and Distance (Aboriginal concepts of time and distance, being of a different order from those of their interrogators may lead to misunderstandings when a police officer is attempting, as is required of him, to determine precise details);

3.Deference to Authority (This can lead to a propensity to give answers thought to be expected rather than to state what actually occurred. "This is a result both of Aboriginal courtesy and custom, but also of the long history of many Aboriginal people living and working in subservient situations");

4.Health Problems (Apart from other health problems to which they are susceptible, Aboriginal people have been found to be particularly vulnerable to chronic ear infections leading to deafness - a disability which may be masked from the observation of the interrogator by means of the survival mechanisms developed over time by the sufferer - such as his or her "having learned to supplement auditory signals with other signals such as the movement of lips and gestures". Such a person's responses "may be misinterpreted as surliness, or worse still, the hesitations and the silences of guilt");

5.Treatment by the Police (It has been suggested that Aboriginal people "are treated differently by the police, as a result, perhaps, of the difficulties in Aboriginal/police relations and the disproportionate representation of Aboriginal people in the criminal justice system: "Frequently, to the police officer called to deal with these situations and to the Aborigines involved in them, prejudice seems confirmed by experience").

Many State and Commonwealth Government inquiries, in addition to judges in cases involving Aboriginal people, have made recommendations to safeguard the rights of Aborigines in police interrogation. The Commission notes as significant that amongst other recommendations, they all recommend "subject to various qualifications" that an Aboriginal person should only be interrogated by the police in the presence of a "prisoner's friend". The Commission further notes however (p.14) that despite the number of these recommendations for specific protection for Aboriginal people under police interrogation "few have been implemented". Despite judicial intervention (such as occurred in the case of the introduction of the Anunga Rules') and the amendments to Police Standing Orders in various states (the position in each Australian jurisdiction with respect to the safeguarding of the rights of Aboriginal people is different) the position overall is represented as being in considerable need of review and reform.

It remains to be seen whether the increasing attention being focused on all aspects of this problem at the present time as a result of the findings and recommendations of the Commission of Inquiry into Black Deaths in Custody will result in a real turn of the tide as far as Aboriginal people are concerned. Aboriginal people themselves tend on the whole to be pessimistic about it, recognising as they have learned to do that while rules and recommendations may well be established, these can still continue to be honoured more in the breach than the observance'.

Aboriginal People and the Anunga Rules

The most well known expression of any official policy in Western Australia relating to the interrogation of Aboriginal suspects has come to be known as "The Anunga Rules". On 30 April 1976, Mr. Justice Forster, in the Northern Territory Supreme Court, handed down his reasons for rejecting typewritten conversations in the matter of Queen v. Angus Anunga, Sandy Ajax, Tjingunga, Nari Wheeler and Frankie Miller Jagamara. Colloquially referred to in legal circles as the Anunga Rules, they are in fact a counsel of perfection for police officers interrogating Aboriginal people. Justice Forster defined "Aboriginal" as follows:

Any person who is a descendant of an indigenous inhabitant of Australia, including Torres Strait Islands prior to European colonisation (The term descendant means a descendant of any degree, i.e. having Aboriginal blood of any proportion).

Justice Forster (p.113) rejected the tender by the Crown of typewritten records of interview between two Aborigines suspected of criminal offences and the investigating police officers. In doing so Justice Forster made his reasons plain and subsequently was joined by two other Justices of the Supreme Court - Justice Muirhead and Justice Ward - in laying down general guidelines which should be followed by police officers when interrogating Aboriginal people:

It seems to me ... to be important that the court should put on record general guidelines for the conduct of police officers when interrogating Aboriginals and to warn police that material departure from these guidelines will probably lead to the evidence of the interrogation, whether it be oral or in the form of a record of interview, being rejected ... what I say - and I am authorised to say that Mr. Justice Muirhead and Mr. Justice Ward agree - may be taken as an expression of the court's view, not only my own. What I say is also not exclusive, I do not deal with the offering and application of violence nor with the offering of threats or inducements. These are, I think, sufficiently well known to require no further repetition by me.

Justice Forster (p.414) prefaced his statement by discussing the difficulties experienced by Aboriginal people (even if they understand English words) in understanding the concepts which English phrases and sentences express - particularly police and legal English" - difficulties which even with the use of interpreters is by no means solved: "Some words may translate literally into Aboriginal language but mean something different". Justice Forster was at pains to emphasise that he was not expressing the view that Aboriginal people were any less intelligent than White people "but simply that their concepts of certain things and the terms in which they are expressed may be wholly different to those of White people".

He went on to say:

Another matter which needs to be understood is that most Aboriginal people are basically courteous and polite and will answer questions by white people in the way in which the questioner wants. Even if they are not courteous and polite there is the same reaction when they are dealing with an authority figure such as a policeman. Indeed, their action is probably a combination of natural politeness and their attitude to someone in authority. Some Aboriginal people find the standard caution quite bewildering, even if they understand that they do not have to answer questions because, if they do not have to answer questions then why are the questions being asked?

Justice Forster's observations were, he said, partly based on his own knowledge and observations and partly determined by evidence he had heard in numerous cases' which had been brought before him.

Abbreviated versions of the Rules are generally available in publications dealing with Aboriginal legal matters but the Rules as originally drafted by Justices Forster, Muirhead and Ward are deserving of being quoted in full. They read as follows:

(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 utilised 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 knows and 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 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.

(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. Failure to do this, among other things, led to the rejection of confessional records of interview in the cases of Nari Wheeler and Frank Jagamala.

(6)Because Aboriginal People are often nervous and ill at ease in the presence of white authority figures like policemen, it is particularly important that they be offered a meal, if 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)When it is necessary to remove clothing for forensic examination or for the purposes of medical examination, steps must be taken forthwith to supply substitute clothing.

Justice Forster further commented that it might be thought by some that the guidelines he laid down were unduly paternalistic and therefore offensive to Aboriginal people or that it might be thought by others that they were unduly favourable to Aboriginal people. He concluded his remarks (p.416) as follows:

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 the 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. The judges of this court do not consider the effectiveness of police investigation will be set back by compliance with these recommendations. It is basic that persons in custody should be treated with courtesy and patience.

Such rules and/or prescriptions however, have but a minimal effect on the court cases in Western Australia. The rules, if they are known at all, are well recognised by those who might reasonably be expected to follow them, as guidelines only and for that reason they can, legitimately, be ignored. Appealing either to the Anunga or the Judges' Rules seems to carry a minimal hope of success. The Judges' Rules governing the questioning and charging of suspects by police are of more general applicability. They are designed to ensure that confessions are voluntary and, although they do not have the force of law, a trial judge has discretion to exclude evidence obtained in breach of the Judges' Rules also.

Justice Gunning W.A. in Police v. Ralph Lindsay Woods (1983) provided a not untypical example of the general inefficacy of such well-motivated but unsanctioned principles. Justice Gunning was presented with an objection by the lawyer representing the Aboriginal defendant. The defendant had strongly protested to his lawyer that an unsigned confession presented by the police prosecutor in court had not, in fact, been made by him. The lawyer spoke as follows:

If your Honour pleases, it appears from the deposition that there was an interview between this witness and the accused, and the accused will say that he did not say what he is alleged to have said, namely, that he did not confess, but that, of course, would be a matter for the jury if my principal objection is that the witness had had the accused identified to him and he must in all conscience have decided at that time that he would lay charges. He ought, in my submission according to the Judges' Rules to have cautioned the accused before having discussed anything more with him than his name and address. In the event, according to the deposition, the witness cautioned the accused after, and not before, he claims to have obtained a confession and I submit that if this be so, then the conversation between this witness and the accused is not admissable for the reason that common practice and understanding of the law for decades past is that the caution, if given too late, will render the evidence inadmissable.

Justice Gunning lost no time in clarifying the situation:

It certainly does not in Australia, just pro forma like that. The law is quite clear here, that even if a caution is not given, even if evidence is obtained by any tortuous means, that does not necessarily make it inadmissable and the Judges' Rules do not apply. They are not a rule in this jurisdiction. They are a guide, certainly, but nothing more than that.

The presupposition of guilt which informs the interrogation of a suspect therefore (the policeman as prosecutor') would appear to be respected in a court when a judge, in the interests of "higher public policy" perhaps, exercises his discretion to admit dubiously-acquired evidence. The discourse which makes this possible is in each case a discourse of power and authority. Equally, the foregoing exchange provides an example of how the particular discourse employed manifests at the same time both the power of the controlling institution and the compliance of the individuals representing it. Whether or not, or how, the judge chose to exercise his discretion he would do so according to the habits of thought and hegemonic practice peculiar to his profession and not according to the habits of thought of the accused in the dock - a hegemonic practice nurtured by class and consolidated by education. Whether or not, or how, the defending lawyer chose to respond, he too would do so within the constraints of the same hegemony. In (Police v. Ralph Lindsey Woods) counsel for the defence subsequently chose to remain respectfully silent on a point of law which he had considered his trump card' in his client's defence.

Woods, the Aboriginal accused, was found guilty and spent six months in prison for an offence he claimed, outside the court, not to have committed. The fact that he did not speak for himself but invested his trust in legal discourse was dictated more by the structure of the accepted and conventional judicial machinery which silences its subjects than it was by his natural choice. Nor was he unaware of this risk, reluctantly taken, when he was constrained to place his trust in being spoken' by that discourse. His words prior to his appearance in court reflect such an awareness: Referring to the representative of the ALS who had visited and interviewed him at the prison, pending his trial, he said (T.R. 1983):

He was one o' them blokes ye know - you be talkin'n he write down things - that's not what I wanted - Listen mate' I said ye know don't write any more'. With this one - I didn't do it - an' so I gotta good chance of gettin' off on this - an' I say I'm not going to take the blame for another bloke's doin' ye know. What I need is sorta like to write it out in my way of thinkin' of a statement - might say - better off talkin' to 'em myself. I want to tell 'em I got my rights - I want to do whatever I want. I'm the bloke what's facin' jail not him see. He's sort of like - well - like one of the screws: I'm the boss - you listen' ye know - you do what you're told'.

Predicaments such as that of Woods (of not being allowed to make his own unsworn statements to the court) while at that time (1983) peculiar to the Western Australian and Queensland judiciaries only, are likely in the future to become even more general. With the exception of Queensland and Western Australia, all Australian States and Territories at present permit an accused person to make an unsworn statement. This means that a person charged with a criminal offence may present to the court an alternative version of the facts without being subject to cross-examination.

Debate surrounds the question of the unsworn statement. Its abolition has been proposed by a number of law reform agencies both in Australia and overseas. The argument in favour of the retention of the unsworn statement holds that it places Aboriginal people in particular in a less disadvantageous position than if the only choice is cross-examination or silence. The Final Report of the Select Committee of the Legislative Council (SA) on Unsworn Statements and Related Matters (ALRC 13:66) cites the Aboriginal Legal Services in Western Australia and Queensland as having considered that Aboriginal defendants in particular were at a disadvantage in not being able to make unsworn statements as a result of the abolition of that right in both states.

Extracts from the views of the South Australian Aboriginal Legal Rights Movement were quoted as follows by the Law Reform Commission:

They submitted further that a special case could be made out for Aboriginal defendants in particular for whom the unsworn statement ought to be retained. They referred to a number of judgments in which it had been recognised that Aboriginal persons faced special problems in relation to the administration of justice. In oral submissions to the Committee, the Aboriginal Legal Rights Movement emphasised that, because of these particular difficulties, cross-examination was not necessarily a tool which could be used effectively to establish veracity, so that the abolition of the unsworn statement would help neither the Aboriginal accused nor the interest of society as a whole.

The conclusion of the Select Committee overall was that the unsworn statement should be retained. The Law Reform Commission itself goes so far as to put forward the argument that it should be reintroduced in those jurisdictions where it no longer exists.

The question as to whether an illiterate Aboriginal person should have help in composing, or in having an unsworn statement read for him or her in court is also open to discussion (ALRC 13:67). The position is neither clear nor uniform throughout Australian jurisdictions.

The Law Reform Commission in its conclusion considered that there are distinct advantages, in particular for traditionally-oriented Aboriginal people, to have the right to make an unsworn statement. There is, they say (ALRC 13:69), a strong argument both for the general retention of the right and for establishing safeguards against false testimony. They go further in proposing that an illiterate or semi-literate person should be permitted to receive assistance in the preparation of a statement and, if necessary, have the statement read for him in court. The Commission notes with particular regret that the Northern Territory "where these problems occur with some frequency" proposes to abolish unsworn statements in its new Criminal Code.

The not untypical case of Woods, which will later be explored in more detail, illustrates two aspects of the law as it is experienced by many Nyungars to their disadvantage: on the one hand a disadvantage at the original site of their encounter with the investigating police officers and on the other a disadvantage in the court itself, of enforced silence or confusing cross-examination, in not being empowered to make their own unsworn statements to that court.

The Australian Law Reform Commission's Reference on Customary Law (1985:2) notes:

There is little doubt that special problems do arise for many Aborigines in their contact with police during pre-trial investigations, and especially in interrogation. These problems may arise whether Aborigines are living an urban, detribalised or tribal life...

It goes on to suggest that institutional law reform is a comparatively recent innovation and suggests that probably the most notable achievement of the past 10 years in law reform is "not any particular report or law, but the institutional mechanisms themselves". The routine function of such institutional mechanisms, according to the Report, is in "governing well the pace of change - including notably technological and sociological change" by updating the law by means of a continuous process of revamping. "Even the occasional wrong turn" observes the Report "would be preferable to a stationary, decaying body of law". It further notes (p.6) that while one can never have all the empirical information which theoretically could be collected about the likely impact of options this should not act as a deterrent, lest the demand for more information become "a crutch for congenital procrastination and a shield for the opponents of reform".

The Law Reform Commission has never taken the view that law reform was a matter for lawyers alone, or that recommendations on law reforms ought to be developed remote either from representatives of other disciplines, or from the general public. The growing recognition of the significance of empirical research and the role of the social sciences ... throws these issues into yet sharper focus.

True it may well be that, in the overall context of the Commission's activities, an occasional "wrong turn" may be preferable to a "stationary, decaying body of law". Nevertheless if that "wrong turn" is likely to be enshrined in a law which may further oppress an already oppressed section of the community it is appropriate that lawyers and others should be alerted to its implications before it is too late.

The Criminal Investigation Bill 1981, years in the making, and drafted by people "obviously acutely aware of many of the practical problems which arise in the criminal investigation process" fails according to lawyer Neil Rees (1982:3) "to provide adequate safeguards against the denial of fundamental individual freedoms and the abuse of police powers". (There are specific provisions in the Bill dealing with the interrogation of Aborigines and Torres Strait Islanders in police custody which do not replace, but are in addition to, the procedures which must be followed when any members of the community are being questioned by Federal [or ACT] police in relation to an offence.) Rees takes note of one particular weakness among many which his reading of the Bill reveals: he refers to Clause 32 of the Bill, "which seeks to define voluntariness'": a confession is deemed not to be voluntary if it is made in consequence of:

(a)the use of physical violence, or a threat of physical violence, to any person; or

(b)the making of a promise, threat or other inducement not being physical violence or a threat of physical violence likely to cause the person to make a confession that is untrue.

"Grossly inaccurate" is the epithet applied to this clause by Rees, if, as he suggests it does, it seeks to restate the Common Law rule. For, as he quite rightly observes, "there are many factors other than physical violence and inducements which may cause an accused to confess without exercising a free choice to speak or remain silent", and, therefore, defining voluntariness' in such a way "exacerbates the problem".

And, to further disadvantage Aboriginal people such as the West Australian fringedwelling Nungyar, Clause 26 (4) of the Bill attempts to divide the Aboriginal community into two classes: disadvantaged persons entitled to special protection, and others who may be interviewed by the police without the benefit of the presence of prisoner's friend. "It is apparent", says Rees, "that this provision will be used to propagate the myth that it is only tribal Aborigines who are deserving of special protection during police interrogation". The provision certainly ignores both the letter and the spirit of the Anunga Rules and, unnecessarily and arbitrarily, distorts Judge Forster's definition of Aboriginal. For, given that any such "others", who are not "disadvantaged persons entitled to special protection", are more likely to be aware of their rights anyway, such an arbitrary division seems both unnecessary and likely to lead to serious abuse. This particular Bill lapsed when Parliament dissolved for the 1983 Federal elections.

The importance of the Bill for the Aboriginal people of Western Australia would lie in the very real possibility of its being copied here: because, as Rees points out, the Bill is the first attempt by any Australian legislature to comprehensively regulate the criminal investigation process. In addition to this, he says, since it is the product of an exhaustive study conducted by the Australian Law Reform Commission, tempered with political considerations, legislatures contemplating a similar undertaking will undoubtedly treat the new Commonwealth law' as its basic reference. As recently as December 1989 however it would appear, according to NSW Australian Law Reform Commission Official Mary Fisher, that though many individual amendments have been put forward to the Bill nothing has been passed in relation to Aboriginal people and the Bill as Bill has now been shelved indefinitely.

Voluntariness, Confessions and Admissions

According to the High Court in R v. Lee (ALRC 26, No.2:198) the word voluntary' means made in the exercise of a free choice to speak or be silent'. The High Court recognised two particular examples of involuntariness - one being the case of a statement induced by a threat or promise by a person in authority', the other a statement made because the will of the accused has been overborne or ... made as the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure'. The Court emphasised that there seems to be really one rule, the rule that a statement must be voluntary in order to be admissable. Any one of a variety of elements, including a threat or promise by a person in authority, will suffice to deprive it of a voluntary character'.

Such definitions reinforced previous arguments such as, for example, that of Justice Dixon in McDermott v. R 1948 who suggested:

It is perhaps doubtful whether, particularly in this country, a sufficiently wide operation has been given to the basal principle that to be admissable 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.

The Commission (ALRC 26:194-197) outlined a number of issues raised by this general test of voluntariness' and related them to particular cases:

1.Whether the judge must be satisfied that the confession was in fact made. The Commission noted that Justice Murphy had suggested in Cleland v. R that a confession is also not admissable unless the trial judge is satisfied that it was in fact made: "Whether there was a voluntary confession can be treated as raising two issues: one, whether the confession was made, and two, on the hypothesis that it was made, whether it was voluntary". They observed however that Justice Murphy's view did not represent the majority approach of the High Court since the analyses of the requirements of admissability of the other Justices in Cleland did not seem consistent with Justice Murphy's view. They further noted that in MacPherson v. R Chief Justice Gibbs and Justice Wilson stated that the question whether a confession was made is entirely one for the jury; and that Justice Brennan considered in the same case that the trustworthiness of a confession is ordinarily a matter to be left for the jury's consideration.

2.Free Choice. Here too ambiguities arise. In particular, according to the Commission, the authorities have not made it clear whether the accused must appreciate that he or she possesses a right to speak or remain silent and actually consider that choice before confessing: "Where factors influence the accused to confess, it is unclear whether they must destroy his ability to choose altogether or whether it is enough that he would not have chosen to confess in the absence of a particular influence. The Commission is concerned that voluntariness' is defined negatively and that the accused is assumed to have acted from a conscious choice unless that choice is overborne'. In other words, if a confession is not the product of external factors it is regarded as voluntary': "The weight of authority appears to require a causal connection between some external and the accused's confession".

3.Must Conduct Be Improper? Although debated in The House of Lords in DPP v. Ping Lin The English Court of Appeal in R v. Isequilla stated that "under the existing law the exclusion of a confession as a matter of law because it is not voluntary is always related to some conduct on the part of the authority which is improper or unjustified, e.g. inducements, oppression". The Commission noted that it was not clear in Australia that police misconduct or impropriety is not essential: "Australian courts have consistently concentrated on particular instances of its breach, on the need to isolate some particular impropriety on the part of police officers which interfered with the exercise of the suspect's free choice to speak or remain silent". They quote the Full High Court in Lee as identifying "duress, intimidation, persistent importunity and sustained or undue pressure" as matters which could render a confession involuntary through oppression'. Several Australian authorities have stated that police impropriety is not necessary and may even be irrelevant. This proposition is of particular importance, the Commission suggests, when the accused person belongs to what they refer to as "a special category" as do Aboriginal people. They also note that there are authorities "who turn on the failure of police to take positive steps to ... ensure that an accused who falls within a particular category is not overborne".

4.Relationship Between General Rule and Traditional Categories. According to the Commission, the relationship between general formulations of the voluntariness rule and specific examples of its application has not been clearly determined and, they say, "there seems to be a strong tendency to emphasise the latter at the expense of the principle". They examine the following specific aspects of the rule with this in mind:

(a) Inducements'.

In Cornelius v. R, Justices Dixon, Evatt and McTiernan stated that a confession is not voluntary if it is given as a consequence of a threat made, or a promise of advantage given, in relation to the charge by a person in authority. But Justice Dixon in McDermott v. R adopted a wider approach: 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 that statement is made". In the Commission's view, a number of problems are reflected in these statements of law: firstly the question as to what constitutes an inducement' - it may take the form of some fear or prejudice or hope of advantage exercised by a person in authority. But, they say, "while inducements extend beyond threats or promises, their exact nature is unclear".

Unclear it is. The Commission describes two different approaches taken to the scope of the concept:

(i) Traditionally, trivial inducements even the most gentle threat or slight inducement' have been held capable of rendering a confession inadmissable: Justice Gibbs was quoted as stating in R v. Beere that "it has long been held that statements to a person that it would be better for him to tell the truth or that a statement would be for his benefit, are inducements having the effect of rendering a subsequent confession involuntary".

(ii) A contrasting view aired in some English cases would have it that "vague inducements are insufficient to vitiate a confession". The New South Wales Court of Criminal Appeal leaned towards this latter view in R v. Bodsworth when it stated that the words you had better tell the truth' constitute a simple exhortation to tell the truth' rather than an improper inducement:

The Court thought it desirable to avoid putting ingenious constructions on colourless words so as to detect a hint of improper inducement, as was one time the case, but rather to construe the words only according to their natural, obvious and commonsense meaning.

The notion of colourless words' and natural', obvious' and commonsense' meaning lies at the very heart of the cultural hegemony exercised by legal discourse - hegemony as it is described by Sullivan, Hartley et.al. (1983:103) to mean a concept by which

everyday meanings, representations and activities are organised and made sense of in such a way as to render the class interests of the dominant bloc' into an apparently natural, inevitable, eternal and hence unarguable general interest, with a claim on everybody.

Such a hegemony naturalises' ideology and renders it into the form of commonsense'. The upshot, according to Sullivan et. al. is that power can be exercised not as force but as authority', and cultural aspects of life are de-politicised:

These strategies for making sense of one's self and the world that are most easily available and officially encouraged appear not as strategies but as natural (unarguable) properties of human nature'".

Chief Justice Bowen of the Federal Court observed in Collins v. R (1980) (ALRC 26:195) that "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".

Neither position seems to take sufficient account of the fact that in practically every case of confessional evidence or verbal evidence of any kind the part that language itself, and legal discourse in particular, plays is problematic in the extreme and no number of appeals to natural', obvious', or common-sense' meaning can make it otherwise.

The Commission notes (ALRC 26:195):

... but there seems to be a conflict between those who would require the words to be a real inducement' on a reasonable man's test and those who emphasise that even the most innocent words may induce' a confession.

Inter-related with the issue of what may constitute an inducement', according to the Commission, (ALRC:196) is the question whether the test for this head of involuntariness is subjective or objective, and here two distinct formulations are outlined:

(a)A confession cannot be voluntary if it is preceded by an inducement (in the second of the above senses - that even the most innocent words may induce' a confession) unless the inducement is shown to be removed. This approach, according to the Commission, "may derive from semantic ambiguity and is doubtful law, particularly given its apparent inconsistency with the general concept of voluntariness".

(b)A confession will be involuntary if the inducement actually induces or causes' the confession. But, they say, "it is not clear whether the inducement must be the sole cause, or the main cause, or just one of the causes of the confession".

Person in Authority' Requirement. According to the Commission, a major issue here is whether inducement by a person in authority' is simply an example of conduct resulting in a finding of involuntariness or actually limits the circumstances in which such a finding can be made.

Australian authority in formulating the inducement rule "invariably requires that it come from a person in authority" but it has not been authoritatively determined that an inducement from a person not in authority cannot render a confession involuntary. Justice Isaacs in Attorney General for NSW v. Martin stated that: "It is the person in authority' that governs the position" and Justice Muirhead in Collins v. R (ALRC 26, Vol 2. 197) stated that "it is only an inducement offered by a person in authority or by another in the presence of such a person, which will be excluded in Australia".

There is, however, no authoritative definition of a person in authority' and definitions vary, ranging from: a person who has influence over the prosecution' to the wider one of anyone who has authority or control over the accused or over the proceedings or the prosecution against him'. Since it seems that a person may be constructively' in authority - e.g. if an inducement is held out by someone not in authority in the presence of someone who is': a confession may be inadmissable "unless the person in actual authority disassociates himself from the inducement". It is unclear, in the Commission's view, whether the same conclusion follows where a person in authority encourages a third person to make an inducement in the former's absence to the accused or, importantly, where the accused believes, subjectively, that another is a person in authority.

In the case of Aboriginal people, by and large, any White person not at their socio-economic level in society, and appearing to be in any way, no matter how tenuously, connected with the police or the law' is ipso facto likely to be taken for a person in authority'.

The Lucas Report, presented in 1977, did not attempt a definition of the term Aboriginal' or Torres Strait Islander' in its recommendations relating the questioning of suspects by police but included the following counsel (p.272):

In most cases it will be clear that a person either is or is not an Aborigine or Torres Strait Islander. In the cases where doubts arise, it should be borne in mind that it is not pigmentation of the skin that results in most Aborigines and islanders being included in the category of "persons under disability", but educational and language disadvantages, cultural differences and, in some cases an excessive deference to authority ... Accordingly, in the doubtful case these are the matters the police officer should look to rather than engage in genealogical investigations.

The question arises as to whether (in the absence of an offer from the police to him) an inducement' may be constituted by a suggestion from the accused to the police. English authorities have held (ALRC 26:197-198) that in such an event the rule applies with equal force if the police do not reject the suggestion. However, the NSW Court of Criminal Appeal held in R v. Clark that the inducement must be held out by a person in authority and that it is not enough if the accused raises such a possibility himself. The question also arises as to what the position is when the person who took the statement from the accused was in fact a person in authority but the accused was unaware of that person's true status.

Inducement in Relation to the Charge'. Arguments persist under this heading, some authorities refusing to recognise such a limitation on the concept of inducement, others adopting such limitations and others again considering it "open to question whether the inducement must be connected with the accusation (i.e. charge)".

Inducement ... Removed' If an inducement' has been removed' or has in some way become ineffective' before the confession is made, such a defunct inducement will not render a confession inadmissable. Some cases, according to the Commission have held that lapse of time may do this and they cite R v. Smith and R v. Williams in this connection.

It has even been held (R v. Clark 1970) that a caution' could negate the effect of an inducement. But, against that, an earlier decision (Sparks v. R 1964) held that a caution given in that case had no effect on the inducements held out; on the contrary a caution in such circumstances in fact "marked the moment when they became effective". The Commission indicated that "in most cases a caution is not really directed at undoing the effect of an inducement", and that the general tendency is to require clear proof that the inducement is removed.

In its Discussion Paper No.23 (August 1985) the Law Reform Commission sets out its observations and tentative conclusions and summarises some of the more significant reforms which, the Commission proposes, should be made to the laws of evidence. It notes (ALRC 23:11-12) that there are "areas of uncertainty" in all areas of the laws of evidence and expresses the view that there is "a very strong case" for the provision of uniform comprehensive laws of evidence for Federal and Territory courts and for such laws to be enacted in legislation which addresses the deficiencies in the present law.

With particular reference to "Admissions and Confessions" the Commission notes that the present test, in criminal trials, for the admissability of admissions or confessions by an accused person is whether the admission or confession was made voluntarily. They suggest, as a result of having examined the decided cases, that there is:

uncertainty as to whether this test is directed towards maximising the probability of the truth of the admission or confession or whether it is directed to ensuring compliance with the law and respect for civil liberties on the part of law-enforcement agencies.

They conclude that there is uncertainty about the following:

*whether a choice to speak must have been made and, where external factors have come into play, whether they must destroy the ability to choose or simply be a cause of the making of the confession;

*the relationship between the voluntariness test' and the specific rules relating to threats and promises by persons in authority and the content of those rules;

*the meaning and relevance of oppression';

*whether the test applies only where there has been (police) misconduct;

*the extent to which and the circumstances in which the personal characteristics of the suspect are relevant - e.g. mental illness, age.

The Commission advances three main proposals and in so doing addresses what it sees to be "the two principal policy objectives of the voluntariness rule - maximising the probability of the truth of the admission and the preservation of the rights of the individual suspect". The proposals read as follows:

(a)to be admissable, an admission must be shown not to have been influenced by violent, oppressive, inhuman or degrading conduct;

(b)to be admissable, an admission must be shown to have been made in circumstances unlikely to affect its truthfulness adversely; and

(c)evidence obtained illegally or improperly shall be excluded unless the court is persuaded that the balance of public interest clearly favours admission - developed from the present common law discretion.

On the discretion to exclude evidence of an admission or confession which is based on "unfairness to the accused", the Commission pronounces the term Fairness' to be a "vague concept" requiring of a definition if it is to be retained. Given such a difficulty, they suggest that the policy issues would be better dealt with in the ways proposed: "Each possible rationale for the discretion can be satisfactorily met by one of the proposed rules".

In the case of Aboriginal people: "... in which the personal characteristics of the suspect are relevant" adherence to the Anunga Rules by police officers would do more than ensure compliance with the above proposals. For, while there is a certain virtue and advantage in "simple", clear-cut, up-to-date and precise rules, it would still be possible by means of individual discretionary interpretation at the site of the interview to obey them by the letter while still contravening their spirit. In situations concerning Aboriginal people, the Anunga Rules, if adhered to, could at one and the same time -

(a)ensure that the three proposals made by the Commission would be complied with;

(b)considerably assist the investigating officers in their task; and

(c)earn for the police a respect and a trust which, in the present climate of suspicion and hostility towards them by many Aboriginal people, could only be beneficial.

'Verbals'

With regard to the question of untrue representations' - the findings and recommendations in the Report of Committee of Inquiry into the Enforcement of Criminal Law in Queensland and known as The Lucas Report, are relevant. One of the more dramatic cases investigated by the Committee (though by their insistence by no means constituting the only material relied on in reaching their conclusions) was the so-called "Southport" case. The Committee was concerned that the allegations relating to the fabrication of evidence by police officers were many and led them to the conclusion (Lucas Report p.15):

that the fabrication of evidence by police officers - particularly of confessional evidence - does occur. The sad truth is that verballing', as it was known, is a device that is not uncommonly employed by certain members of the police force.

They go on to say: "we are also satisfied the practice is by no means peculiar to the State of Queensland".

The Committee of Inquiry responsible for the Lucas Report was appointed by Queensland Government Gazette of 19th November, 1976:

to make full and careful inquiry into the enforcement of criminal law in Queensland and in respect thereof to consider whether any changes are desirable in the interests of fair and efficient administration of justice with particular reference to:

(a)Preventing or inhibiting the fabrication of evidence or testimony by Police officers or other persons.

(b)The protection of individuals from undue pressure in respect of the investigation and interrogation of offences by Police officers.

(c)Whether Police powers of investigation, interrogation, search, seizure and arrest are adequate to meet the needs of the community in present day circumstances.

The Commissioners were The Hon. Geoffrey Arthur George Lucas, a Judge of the Supreme Court of Queensland, Desmond Gordon Sturgess, then a Barrister-at-Law of the Supreme Court of Queensland, and Dynes Malcolmson Becker, a retired Chief Superintendent of Police. From time to time the following organisations were represented before the Committee: The Bar Association of Queensland; The Queensland Law Society; The Queensland Crown Prosecutors' Association; The Queensland Police Union of Employers; The Queensland Police Officer's Union; The Police Prosecution Corps; The Aborigines and Torres Strait Islanders Legal Service and The Queensland Council for Civil Liberties.

In the opinion of the Committee (LR:31) "of perhaps all the answers to questions of fact that must be given in the courts, those that are concerned with what really occurred in the situation under discussion are the most susceptible to error". (They here refer to what really takes place between police officers and suspect.) This is, they say, because in court there are at least two experienced witnesses arrayed against the one accused: "very, very seldom is there any outside evidence to assist the determination; it is the word of the police officers against the word of the accused". In the view of the Committee many wrong decisions have been given as a result, and, furthermore, a most serious aggravation of this already serious problem is that "many of the fabrications must go undetected".

The Southport Case concerned the arrest in 1974 of a couple of men on a relatively minor charge related to betting. The members of the police party included an inspector, a sergeant, and two plainclothes constables; the inspector was also a Justice of The Peace. A forgery was made because a document that was not in fact a true warrant to search had been produced at the time of the arrest. About four months after the arrest a false warrant and a complaint to ground it (and other false warrants and complaints relating to other matters in hand at the time) were drawn up at the Licensing Branch and taken to the home of the Police Inspector/Justice of The Peace. One of the police officers involved carried a concealed tape recorder and surreptitiously recorded much of this and subsequent activity. Of considerable significance was the fact that the men concerned were not in any sense long-term associates or conspirators. In fact one, the sergeant, had only recently arrived at the Licensing Branch after considerable service in the Criminal Investigation Branch. A reading of the transcript of the tape reveals nothing to indicate that the participants considered their behaviour as anything other than occasional and circumstantial police strategy for preparing briefs and getting convictions in court.

The Commission (LR:36) quoted the evidence of a member of the Legislative Assembly, and formerly a detective with nineteen years' service in the Queensland police force, as follows:

Kill-hungry' police: There are unfortunately a handful of police who will resort to any lengths including blatant perjury in order to get a conviction, either because they get kicks' from it or because they believe it will advance their careers. In my experience these police officers amount to only a very few amongst the great majority of officers who are honest and responsible. Officers, both male and female, who fall into this category are held in low regard by their fellow officers, who generally disdain from working with them. They are generally fairly well known not only by other police but by judges, magistrates and the legal profession ... .

The significance of the phrase "generally fairly well known" did not escape the Commission, in the sense that it clearly indicates that, although frowned upon by many, "verballing" as it is known is not an offence considered so serious a crime that it will actually be stopped by fellow officers of the police force as a general rule, if at all.

On the completion of its inquiry the Lucas Commission made no fewer than 57 recommendations. They laid special emphasis and went to considerable lengths to establish the desirability of tape-recording - both audio and visual, of police/suspect interviews, recommending that video-tape recorders be set up in the City Criminal Investigation Branch and in nine other centres. They described in detail the procedures which should be followed with respect both to the taping and to the custody of the tapes made. The Commission recommended significant extension of police power and the withdrawal of certain privileges which suspected or accused persons now enjoy. This included the power for the police to detain suspects for questioning (para.133); the introduction of legislation to allow for street questioning and searching of suspects (para.206); and the abolition of the rule that prevents the drawing of an adverse inference from a suspect's silence in response to police questioning (para.194). Those changes however were made contingent upon the adoption of the recommendation that police interrogations be tape-recorded whenever possible.

According to Applegarth (1982:273) the officers who committed the crimes of perjury and forgery in the Southport case have all been promoted. Recommendations regarding tape recording fell on stony ground:

The response of police to (the) recommendations regarding tape recording was hostile. The State Government reacted by appointing a three-man committee, including Police Commissioner Lewis, to inquire into the findings of the original Inquiry. The Committee reported to Cabinet in March 1976, recommending against recordings.

And, despite many, and repeated, and increasingly urgent, judicial representations, the Lucas Report's key recommendation on tape-recording of police interrogations was not complied with. On the contrary, Applegarth reports, there have been a number of cases in Queensland since that time, which he describes, and which, he says, illustrate continuing questionable behaviour on the part of police to an extent which even drew open criticisms from magistrates. He concludes that "the unfair and illegal obtaining of evidence by police raises fundamental questions about the operation of the rule of law ..."

It could be argued that certain considerations of linguistics and semantics by the police played an important part in setting limits to the success of the Queensland Inquiry and turning the tide in their favour. Brisbane solicitor Terry O'Gorman, writing at the time in the Legal Services Bulletin (1977:196), noted that although the Inquiry was widely publicised at the outset as An Inquiry into Police Procedures, and in newspaper reports as The Police Inquiry, political pressure from the police force resulted in approaches being made to various arms of the media who subsequently referred to it as The Criminal Law Inquiry.

Taking advantage of this considerable topic shift, from the beginning, according to O'Gorman, the police force took the initiative by attempting to take the spotlight off allegations of malpractice by some of its members: concentrating instead on their frustration in their investigation of crime through their lack of powers to detain citizens for questioning; drawing media attention to evidence of fabrication of evidence by persons other than police officers; and pleading in the strongest possible terms (articulated by Police Commissioner Lewis) for:

(1)The elimination of the caution presently required by the Judges' Rules

(2)The detention of suspects in respect of serious crimes and misdemeanours;

(3)The questioning of suspects while in custody and removal of persons from watchhouse to show investigating officers the scene of the crime.

The only police witnesses to admit to knowledge of irregularities were a retired police inspector and a member of Queensland Parliament who had been himself once a member of Queensland's ASIO, the Queensland Special Branch. O'Gorman (1977:199) observed that the Inquiry was far from being a comprehensive examination of malpractices within the Force and that the police were successful in shifting the spotlight from what he called "widespread police malpractice", to their claim that their powers were inadequate. In its closing address to the Inquiry, the Queensland Law Society stated:

The Society believes that there has been a significant imbalance in the material presented before this Committee of Inquiry in that much of it has been toward increasing police powers of interrogation, arrest, search and seizure and the powers to detain without arrest.

Notwithstanding, according to O'Gorman, Mr. Justice Lucas, Mr. D. Sturgess (Barrister) and Chief Superintendent Becker "performed their task conscientiously", as illustrated in such actions as the subpoena of a senior inspector of police to give evidence regarding an improper investigation by some police inspectors of a complaint by police club members who witnessed a bashing in an inner-city police station.

Police Response

The Report of the Board of Inquiry into Allegations Against Members of the Victoria Police Force, led by Mr. Barry Beach QC and published and released in May 1978, made adverse findings in respect of some 55 individual police officers. Prior information regarding these adverse findings provoked an angry response from police who called a meeting in Melbourne attended by 4200 members of its 6429 force. As noted by Sallman (1982:249):

The meeting demanded the resignation of the then Victorian Chief Secretary Mr. Vance Dickie, the Minister Responsible for Police Matters; it demanded a Royal Commission, put forward a set of seven categorical demands to be made by the government, and instituted a stringent work-to-rule campaign. ... The spirit of unity and solidarity was overwhelming. The levels of anger and indignation expressed were extremely high. Victoria came closer to a police strike then than at any other time since the famous strike of 1923.

Again, as with the Lucas Report, the Beach recommendations involved according to Sallman (1982:256):

a considerable stiffening of the rules relating to the investigation of crime by the police, particularly in regard to the specific process of questioning, formal interrogation and allied procedures. ... Basically, Beach put the view that if suspects had rights' they should be enforceable rights and the community should know about them.

Mr. Beach also recommended that the whole of records of interview with persons suspected of having committed indictable offences be tape-recorded. He suggested that unsigned untaped records of interview which have not been properly adopted be inadmissable in any case in which the interview record is challenged: "In such cases he seems to have intended that no means of adoption would be adequate, short of a recorded read-back' of the record of interview". The set of proposals, according to Sallmann (1982:263) "held out some hopes for reform in the area of criminal investigation and the introduction of some extra controls over police methods and tactics".

1 Prosecutions of the 55 members of the police force all failed. Any interested observer of the events could well be forgiven for coming to the conclusion that, somewhere along the line, something went very wrong. The great majority of the cases which went to the courts were dismissed at the committal level by magistrates.

Terms such as the brotherhood syndrome' and the ghetto mentality' were used by Beach to refer to certain groups within the police department. It was expected by interested observers that such an adverse report would surely be acted upon by the government and they were dismayed when such did not turn out to be the case: "They felt" noted Sallmann (1982:263) "that the outcome of the Inquiry would be interpreted by the police as almost a condoning, if not a positive encouragement, of the kinds of police strategies which had given rise to the inquiry".

Sallmann's analysis however points to developments taking place after the Inquiry which he attributes directly to it. He suggests (1982:264) that it has given the Victoria Police Department a political status and maturity which it did not possess before the Inquiry: "It now has a strong and independent voice which is being heard more often on topics concerning the police, particularly in relation to the criminal justice system". That voice is increasingly making itself heard:

In a nutshell, the police have gained much extra political clout' as a result of the Inquiry and are using it to influence the reform of criminal procedure to their tastes.

Sallmann further asserts (and states that police officers with whom he has spoken confirm it, as also do barristers and solicitors practising in the Victorian criminal jurisdiction) that since the Inquiry the policy within the Victoria Police Department, "stated or unstated", has been to pay closer attention to the spirit of the rules than heretofore. He hypothesises that this is being done to demonstrate, according to the police, how ineffective the rules really are in assisting the control of crime. In this way they hope that the public will begin to 1appreciate the inadequacy of the rules and pressure the government to produce more effective ones.

Sallmann's own suggestion (1982:265) is that the whole pre-trial process be thoroughly examined by a broadly-based group of people and with the use of social science research techniques to obtain empirical data. The changes he notes as having already taken place since the Inquiry are in themselves significant, however. Based on conversations which he had with quite a number of police officers, prosecutors, solicitors and barristers working in Melbourne, Sallmann makes the assertion that the standard of behaviour in the enforcement of the criminal law in Victoria has markedly improved:

Prosecutors assert that the standard of briefs is now much higher than before the Beach Inquiry. Detectives claim that there is now, in contrast to earlier times, a heavy emphasis in Detective Training School courses on what is called crime scene searching'. The obtaining of confessional material now reputedly takes a back seat to the systematic accumulation of physical' evidence.

The use of tape-recorders has increased in the CIB, not only to record the read-backs of interviews, but also to record discussions between the police and the suspect before the actual formal interview takes place. Unsigned records of interview have become uncommon. An additional and most significant development was the decision within the Victoria Police Department to examine and rewrite the Police Standing Orders, placing particular emphasis on those parts of the Standing Orders which deal with the issues of police powers and suspects' rights (the Judges' Rules).

A reading of the Victoria Police Standing Orders (1981) shows clearly that the use of tape recorders is (at the present time Jan. 1986) so hedged round with instruction and prescription as to make it something of a toothless tiger where interviews are concerned. No mention is made of recording the interview itself. The orders read as follows:

1 Tape Recording of Interviews

8.26 (1) In the case of serious offences such as homicide or other crimes involving violence, and where the necessary equipment is available, the member conducting any interview with a person suspected of the commission of the offence shall record, by means of a tape recorder, that part of the interview when the statement or Record of Interview is read aloud by the person interviewed, or is read aloud to the person being interviewed, and additionally that part of the interview when the questions set out in Standing Orders 8.18 (b),

8.20 (a), 8.21 (e) and 8.22 are asked and answered.

(Hereunder the questions referred to:)

8.18 (b) At the conclusion of the interview, invite the person interviewed to read it aloud, and when this is done, ask questions in the following or similar words -

(i)"Is what you have read in this document a true account of this interview?";

(ii)"Is there anything further that you wish to add?";

(iii)"Will you sign it as a true account of this interview, on each page, and initial any alterations that have been made to it?"

8.20 (a) Ask the person interviewed questions to this effect -

(i)"Is what I have read to you from this document a true account of the interview?" or, where such person has read the Record of Interview aloud, "Is what you have read in this dcument a true account of this interview?"; and

(ii)"Is there anything further you wish to add?";

and

(iii)"Will you sign it as a true account of this interview on each page, and initial any alterations that have been made to it?";

and

(iv)(in those circumstances where such person acknowledges the correctness of the Record of Interview by answering the question in sub-paragraph (i) hereof in the affirmative, but refuses to sign it) - "What is your reason for refusing to sign this document?";

or

(v)(in those circumstances where such person refuses to either acknowledge the document as correct or sign it, by answering the questions in parts (i) and (iii) hereof in the negative, or by refusing to answer them at all) - "Why do you refuse to say this document is a true account of the interview and sign it?"

1

8.21 (e) When the statement is concluded -

(i)if it was not written or typed by the person making it, invite such person to read it aloud;

(ii)invite the maker of the statement to make any alterations required by him;

(iii)ask the maker of the statement if it is true and correct, and if he has anything further to add;

(iv)invite the maker to add to the statement words to the effect that he has read it, it is true and correct and that he has nothing further to add, if such is the case; initial any alterations and sign each page;

(v)witness the maker's signature, and add an endorsement to the statement in these terms -

"Statement taken by me (or made in my presence) at (place) on (date) between (time commenced) and (time concluded) and signature witnessed by me." and sign such endorsement.

Where the taking of the statement is interrupted, the nature of the interruption, and the time it occurred and the time the statement was recommenced are also to be included in this endorsement, unless they are already recorded in the body of the statement.

8.22 Where a statement is made substantially in accordance with the provisions of the preceding Standing Order, and the maker (where another person has recorded the statement) is unable, or declines to read it aloud, or acknowledges it as true and correct but refuses to sign it, or both refuses to acknowledge it as true and correct but refuses to sign it, or both refuses to acknowledge it and sign it, then the provisions of Standing Orders 8.19 and 8.20 relating to Records of Interview, shall apply, with such adaptations to the various questions that are to be asked as are necessary.

Tape Recording of Interviews (cont'd)

8.26 (2) Where a recording is made in accordance with the provisions of the preceding paragraph, the member in charge of the case shall ensure that prior to any subsequent Court proceedings the prosecutor is advised of its existence.

8.26 (3) Where recording procedures are carried out in accordance with instructions contained in the preceding paragraphs, the member of the Force conducting the interview shall ensure that the tape recordings are preserved in their original state for production at any subse1quent Court hearing, if required. This instruction applies even though a written transcript of the recording may be subsequently made.

A suspect or witness, especially an Aboriginal person, in an interview situation, is rarely in a strong position to argue with his interrogator. (There is much evidence to show that any person in this position is in an altered and abnormal state of consciousness.) Everything about the circumstances which surround any such interview - from a social, a psychological or a linguistic point of view - place him or her at a considerable disadvantage. When, then, as a result of his or her having answered the questions posed, a statement is produced and shown or read to that witness or suspect, the chances are:

(a)that it will bear a sufficient resemblance to the verbal event that preceded its construction as to make it seem correct;

(b)that its very official appearance as a typed document will in itself lend it an air of finality and legitimation which suggests that it should neither be lightly challenged nor changed or added to; and

(c)that in any case the interviewee may not fully comprehend the full significance of any inclusions, exclusions or transformations which the interviewing officer may well, either wittingly or unwittingly, be responsible for in typing that statement.

And finally, in the event that the statement has been obtained unfairly or unjustly, or the suspect or witness in any way overborne, by the time it comes to the point where he or she is to sign a statement, acquiescence in that too is likely to be a foregone conclusion.

In not having available for perusal the complete recording or transcript of the whole interview a judge or a jury is unquestionably denied access to knowl1edge which would have to be of the most valuable assistance to them in their deliberations and decisions.

To record only that part of the interview as is indicated in the instructions is simply to record a fait accompli. It does nothing whatsoever to establish the bona fide either of the interview itself or of the evidence it produces.

Very much the same can be said of the 'verbal'. Section 8.28 of the Standing Orders gives instructions regarding "contemporaneous Notes" to be prepared, and reads as follows:

8.28 Where, during the course of an interview with a person suspected of the commission of an offence, or where in the course of an interview with a person not then under suspicion, the person makes a confession of his guilt, the member of the Force conducting the interview shall make a written record, as soon as possible after the conclusion of the interview, of all relevant conversation had with such person prior to the taking of a record of interview or the making of a statement and the member shall retain all original notes until after the completion of Court proceedings, if any, arising from the subject matter of such interview.

The proviso "In the case of serious offences such as homicide or other crimes involving violence, and where the necessary equipment is available ..." further emasculates the Standing Order relating to tape-recording to the point where it can be obeyed or not, according to the whim or inclination of the interviewing officer. It ignores the fact that tape recorders cost considerably less than typewriters and that "serious offences such as homicide or other crimes involving violence" are by no means the only areas where evidence may be illegally or unfairly obtained and people sent to prison without just cause.

A mustering of militant strength and solidarity by police forces generally seems to be the natural and inevitable response to any or all of the reports and recommendations of the various committees and commissions of inquiry which have taken place, or rather, to those aspects of those recommendations which reflect any criticism of police practice. This, of course, can be viewed both 1positively and negatively: positively in that it allows those forces the opportunity to tackle weaknesses or anomalies in their existing systems which may well be an embarrassment or a reproach to themselves and reduce the respect to which they are entitled by the communities they serve; negatively in that it could merely exhaust itself in successful efforts to retain the status quo and perpetuate those same acknowledged weaknesses or proven injustices.

Existing Safeguards

In an address to the National Law Librarians' Conference 1983, Lloyd Davies, prominent West Australian barrister and writer and member of the Aboriginal Legal Service, outlined (p.4) the position taken by the Western Australian Legislature in Section 49 of the Aboriginal Affairs Planning Authority Act 1972 of Western Australia which makes special provision for pleas and confessions by persons of Aboriginal descent and reads as follows:

49(1) In any proceedings in respect of an offence which is punishable in the first instance by a term of imprisonment for a period of six months or more the Court hearing the charge shall refuse to accept or admit a plea of guilt at trial or an admission of guilt or confession before trial in any case where the Court is satisfied upon examination of the accused person, that he is a person of Aboriginal descent who from want of comprehension of the nature of the circumstances alleged, or of the proceedings, is or was not capable of understanding that plea of guilt or that admission of guilt or confession.

(2) The provisions of subsection (1) of this section are in addition to, and not in derogation of, any rules of law or practice relating to the admissability of pleas of guilt or admissions of guilt or confessions.

Lloyd Davies goes on to observe however:

The Courts have had ten years to interpret this section and it can be said for all practical purposes that, whilst a Judge or Magistrate must always have regard to the Section when dealing with a person of obvious Aboriginal descent, its strict application can only occur when one is dealing with a very unsophisticated tribal Aboriginal.

His observation :

whilst a Judge or Magistrate must always have regard to the Section when dealing with a person of obvious Aboriginal descent, its strict application can only occur when one is dealing with a very unsophisticated tribal Aboriginal

neatly encapsulates the dilemma facing Aboriginal people and their lawyers when the person concerned while of "obvious Aboriginal descent" neither fits 1the description "unsophisticated tribal Aboriginal" nor its logical opposite which, presumably, would have to be "sophisticated non-tribal Aboriginal" or some semantically-equivalent alternative.

The urban Aboriginal offender in particular is unlikely to be classed as "unsophisticated tribal Aboriginal", thus leaving open the question as to how strictly the section can be applied. The Anunga Rules, formulated three years later, and previously referred to, made clear that their application was to be considered in all cases concerning any person:

who is a descendant of an indigenous inhabitant of Australia including Torres Strait Islands prior to European colonisation (The term descendant means a descendant of any degree, i.e. having Aboriginal blood of any proportion)

and if adhered to would render Section 49 more clearly manageable, applicable and effective. M.A. Martin (1973:11) observed:

Language difficulties are present both with tribal and English-speaking Aborigines since in many cases even those born into an English speaking environment are hampered by a severely limited vocabulary. The shades of meaning ... are difficult to grasp with such a restricted vocabulary and even when the words are comprehended the meaning commonly understood by White English speakers may differ from that realised by members of an Aboriginal group.

It is not so much that Aboriginal people born into an English-speaking environment have a "severely-limited vocabulary" in the sense in which we might understand it. Instead of relying exclusively on English words when speaking Aboriginal English they draw on a rich store of meaningful words, gestures and phrases of Aboriginal rather than English linguistic and cultural origin which are exclusive to themselves and are of little use to them in communicating with representatives of White Law - an area of particular disadvantage, albeit only one among many others. Aboriginal lawyer, Michael Dodson, in an editorial to a special issue of the Legal Service Bulletin put the position, from an Aboriginal viewpoint, briefly and pungently:

1 As an Aboriginal, I view the entire exercise ("a recent resurgence of interest in the question of Aborigines and the Law") with a great deal of scepticism. The continued discussions, conferences and publications appear to offer scant results immediately or in the long term. We, the Aboriginal people, are fully aware of the repressive and racist legal systems which subject us to great disadvantage and injustice. The great volumes of writings and works seem to be of little value to a people who live under exploitation, oppression and inequality not only before the law but in other areas of social existence. We live that existence, we have small mileage in "experts" exposing the "problem". The ultimate outcome leaves us no further advanced or bettered than we were when the invaders first conquered our country.

Dodson could hardly be classified as an "unsophisticated tribal Aboriginal". What he says, however, and the way he says it, would seem to indicate that such emasculation of S.49 as might occur due to an arbitrary, on-the-spot, decision by a judge or magistrate as to the degree of relevant Aboriginality' of an accused could well be as unjust as it would be ill-advised.

In his address to the National Law Librarians' Conference (1983:7), Lloyd Davies pointed to the provisions of Section 631 of the Criminal Code (which is identical to S.631 of the Queensland Code) which reads as follows:

S.631 If, when the accused person is called upon to plead to the indictment, it appears to be uncertain, for any reason, whether he is capable of understanding the proceedings at the trial, so as to be able to make a proper defence, a Jury of twelve men, to be chosen from the panel of Jurors, are to be empanelled forthwith, who are to be sworn to find whether he is so capable or not. If the Jury finds that he is capable of understanding the proceedings, the trial is to proceed as in other cases. If the Jury finds that he is not so capable, the finding is to be recorded, and the Court may order the accused person to be discharged or may order him to be kept in Custody in such place and in such manner as the Court thinks fit, until he can be dealt with according to law. A person so found to be incapable of understanding the proceedings at the trial may be again indicted and tried for the offence.

He went on (1983:9) to describe instances of its having been successfully invoked in cases of "unsophisticated Aboriginals", e.g. R v. Grant (1975); R v. Willie 1("in the last century") and stresses the importance of Grant's case in particular. (Grant had been accused of killing a fellow tribesman):

What Grant's case did spell out quite clearly to potential defenders of unsophisticated Aboriginals was that if the circumstances were such as to exclude a confession under Section 49 (1) they also must raise some doubt about the capability of the accused of understanding the proceedings at the trial, so as to be able to make a proper defence' in which case Section 631 could be invoked again and a Jury empanelled to decide that question.

Of particular relevance is the case of R v. Yupupu (1976). The police officers involved in this case produced a confession purported to have been made by Yupupu in connection with an offence. It was essential for the success of the Crown that this confession be admissable as evidence and it was equally essential for the defence that it be excluded. Since Yupupu had but a limited grasp of the English language and did not comprehend the meaning of the charge against him it was appropriate to consider excluding the confession by appealing to S.49 of the Aboriginal Affairs Planning Authority Act (1972) (WA) (cited above) and this was done and a jury duly empanelled. The jury heard evidence of fitness from the detective who gave evidence of his interview with Yupupu in hospital and the somewhat halting verbal confession extracted from him. As documented by Lloyd Davies (1976:134):

Under cross examination the detective agreed that he had not discussed with Yupupu any of the concepts or technical words used in the indictment. The detective sergeant who made the arrest after the interview confirmed that no explanation of these terms had been made in his presence.

The defence called an interpreter, Mr. K.C. Hansen, a missionary anthropologist and linguist from the Summer Institute, who had previously known the accused in his home territory and had spent eight years studying the Pintupi dialect spoken by Yupupu. 1

Mr. Hansen's testimony drew on more than one aspect of communication when testifying on Yupupu's behalf: Fristly, he suggested that because Yupupu did have a basic, though limited, knowledge of English, the essential elements of the charge could be explained to him in time; however the actual implications of the charge could not. Lloyd Davies, in a pre-trial discussion with Mr. Hansen and Yupupu, had asked the former to find out from Yupupu what his intention had been when he threw objects at the complainant's house and Lloyd Davies (1976:15) describes the outcome as follows:

He had known Yupupu since he was a baby; spoke his language fluently and was familiar with his people. I asked him to establish what was Yupupu's intention when he threw the objects at the house. He explained there would be no possibility of doing this because the concept was quite alien to the boy.

I was a bit mystified at this, "Well why did he throw the stone? Surely he can give a reason for that?"

"He threw the stone because he threw the stone".

"Yes, but why?"

"Because he had to. Because the man in the house fired bullets at him. He had an obligation to retaliate as soon as it became practicable to do so".

"What effect did he expect it to have on the people in the house?"

"He wouldn't be thinking about that".

Mr. Hansen assured Lloyd Davies that there would be no way the question of 'intention' could be raised with Yupupu - he would just not understand it. As 'intention' was the essence of the charge in question it seemed to Lloyd Davies that here was a clear case of a person not being able to understand the nature of the charge.

"What about intimidate' or annoy', would be understand those words?"

"Probably not".

"What about the rest of the words in the section, threatened to break or injure a dwelling house'. Would he understand them?"

"He might understand injure but not threaten, or break in its technical sense. They don't have dwelling houses where he comes from".

1 The nearest that it was possible for Mr. Hansen to get to translating the terms "guilty" and "not guilty" was "true" and "untrue".

While the foregoing aspect of communication might perhaps be roughly considered as more specific, even if not exclusively so, to an "unsophisticated tribal Aboriginal", Mr. Hansen's testimony in court regarding the technique used by the police officer to interview Yupupu could equally well apply to the clause in S.49 which speaks of a "person of Aboriginal descent who from want of comprehension ... was not capable of understanding that plea of guilt or that admission of guilt or confession". He spoke as follows:

The problem with the question-and-answer technique is that as linguist if I wanted to find the true meaning of what went on in the situation I never ask a yes' and no' question because I know that simply by raising my intonation at the end of a question I can give the impression that I want a yes' answer and this is the type of problem that anyone has in addressing yes' and no' questions or a statement and then expecting a yes' and no' at the end of it, because immediately the person feels well, the easiest way is to just give the answer' because you cannot explain the detail of what is different in it, but he does not quite agree with it, even if he did understand what the different sense was. So this is a real problem in a yes-no' question technique.

For their part, the police gave evidence of what, in their opinion, was a perfectly straightforward interview with the accused in which he apparently understood them and answered all of their questions freely.

The straightforward interview' as routinely conducted by the police tends, as indicated by records and recordings of such interviews, to rely for its straightforwardness on the question and answer technique described here by Mr. Hansen. There is evidence however, that not only a Yupupu speaking in Pintupi dialect in his home territory but also, and for a variety of reasons, a Nyungar speaking his particular version of Aboriginal English in metropolitan Perth, can be at a similar discursive disadvantage in such interview situations. 1

Mr. Hansen's testimony however, proved sufficient to convince the jury that Yupupu had only the haziest idea of what the charge and the proceedings were about and why "having been shot and nearly killed" he should be standing on trial at all. In the event it took them only twenty minutes to find him not capable of understanding the proceedings. The Judge discharged him on bail and the Crown ultimately filed a nolle prosequi. As concluded by Lloyd Davies:

Cases frequently arise where, because of the primitive nature or lack of education of an Aboriginal suspect the Court may come to the conclusion that there was danger that the suspect was overborne by his questioners thus rendering his confession involuntary or was so confused by the interrogation and his surroundings as to make that interrogation unfair and the confession suspect. In the first case the confession would have to be excluded altogether; in the second it would call the discretion of the tribunal as to whether it should be excluded in the interest of justice.

According to Lloyd Davies, a number of West Australian Court of Appeal decisions on Section 49 of the Aboriginal Affairs Planning Authority Act have ultimately indicated that it does little more than restate the common law position whereby a tribunal has to be satisfied that an accused person understands the proceedings in which he is being tried and that when he makes a plea of guilty he understands the consequence of that plea and makes it freely. Further, that the same principles apply to the acceptance and rejection of confessions.

The danger with overall recommendations such as are embodied in Section 49 is that their very existence signifies an acknowledgement of and ostensible effort to correct a problem, individual instances of which are not neatly tailored to their specific discursive specifications. This has the effect of maintaining existing unsatisfactory practices the effects of which might otherwise be more satisfactorily addressed, challenged or resolved in individual cases. Embedded in any such overall legislation is a kind of normalisation technique 1which demands of the Aboriginal person that he or she fit the currently designated model of the Aboriginal norm' to which it may be said to apply, thus rendering it open to the conclusions which Lloyd Davies so rightly draws.

They can also obscure, even for the right-minded' people who see themselves as seeking justice, the influence which language can have on social structure. For as theorised by Fowler, Hodge, et al (1979:190):

Language serves to confirm and consolidate the organisations which shape it, being used to manipulate people, to establish and maintain them in economically convenient roles and statuses, to maintain the power of state agencies, corporations and other institutions ...a process seen by them as being effected:

partly by direct and indirect speech acts, partly by more generalised processes in which the theory or ideology of a culture or a group is linguistically encoded, articulated and tacitly affirmed.

In the following chapters I will endeavour to exlore and classify some of the ways in which "the ordinary rules of human thought and human experience" can be both conducive and deleterious to the administration of justice. I hope also to defend the opinion that rules like the Judges' Rules and the Anunga Rules, and others of the same kind, can be theoretically justified to an extent as might demonstrate the desirability of making them mandatory in the case of Aboriginal people in particular if not indeed in the case of all other disadvantaged minorities.


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