PARTIES:	THE QUEEN

	AND

	SLATER, Norman James

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:	No 157 of 1995

DELIVERED:	Darwin, 27 June 1996

HEARING DATES:	25 - 26 March 1996

JUDGMENT OF:	Martin CJ.

CATCHWORDS:

Criminal Law and Procedure - Evidence - Confessions and admissions - Voire dire - Admissibility of records of interview - Aboriginal accused - When duty to caution arises in context of a belief justifying arrest - Whether confirmation made at end of recorded interview that s140 requirements were administered in earlier unrecorded interview constitutes compliance with the Police Administration Act - What constitutes “reasonable facilities” to enable an accused to communicate or attempt to communicate with someone regarding their whereabouts - No unfairness in police conduct - Admission not contrary to interests of justice.

Evidence Act (NT), s26L -
Police Administration Act (NT), ss123,137(2),140,142 -

Alderson v Boothe [1969] 2 QB 216, applied.
David Simon Grimley v The Queen, unreported, Court of Criminal Appeal, 27 July 1995, referred to.
Hatzinikolaou v Snape (1989) 41 A Crim R 389, referred to.
R v Maratabanga (1993) 3 NTLR 77, referred to.
Smith v The Queen (1956-57) 97 CLR 100, referred to.

Criminal Law and Procedure - Evidence - Confessions and admissions - Admissibility of records of interview - Aboriginal accused - Alleged breach of Anunga Rules - Accused as fluent in English as the average white person of English descent - Aboriginality not the sole criteria upon which application of Anunga Rules depends -

Evidence Act (NT), s26L.
Police Administration Act (NT), ss140 & 142.

R v Anunga & Others; R v Wheeler & Another (1976) 11 ALR 412, considered.

REPRESENTATION:

	Counsel:

	Applicant: Mr R Noble
	Respondent: Mr D Dalrymple

Solicitors:

	Applicant: DPP
	Respondent: KRALAS

Judgment category classification: B
Judgment ID Number: mar96010
Number of pages: 19

mar96010

IN THE SUPREME COURT OF
THE NORTHERN TERRITORY
OF AUSTRALIA

No. 157/95

	BETWEEN

	THE QUEEN

	AND:

	NORMAN JAMES SLATER

CORAM: MARTIN CJ.

REASONS FOR JUDGMENT

(Delivered 27 June 1996)

		The Director of Public Prosecutions has filed an indictment alleging that Norman James Slater on 12 December 1994 at Katherine robbed Brian Hotz of $100 in cash, the property of Brian Hotz contrary to s211(1) of the Criminal Code.  

		Application is made on behalf of the accused pursuant to s26L of the Evidence Act that certain evidence comprising admissions allegedly made by him to investigating police be ruled inadmissible.  It was submitted that the confessions ought to be excluded on the basis that there had been a breach of the Anunga Rules (reference (1976) 11 ALR 412) and breaches of ss140 and 142 of the Police Administration Act (“the Act”).

		The following is an outline of the relevant events:

.	Mr Hotz alleges that on the evening of 12 December 1994, he was assaulted by an unidentified person or persons who removed $100 from him.

.	Investigating police interviewed two people who it was established were with Mr Hotz on that evening.  They informed police that they and the accused had gone to Mr Hotz’ room at a hotel, had drunk liquor together, and that they and the accused had then left, going their several ways.  Mr Hotz was left in his room and had not been assaulted at that time.

.	At 4.45am on 16 December, the accused finished his shift work and between then and about 12.30pm had a couple of hours sleep.

.	At 12.30pm detectives Valenti and Kelly, who were investigating the allegation made by Mr Hotz, arrived at the residence where the accused was, that is, 14 Sandalwood Crescent, Katherine and had a brief conversation with him, informing him of the investigation.  They then went by motor vehicle to the Katherine Police Station where an unrecorded interview was conducted.  During the course of that interview Detective Valenti formed the opinion that the accused was being inconsistent, and when challenged, the accused made admissions to the effect of “I rolled the old man”.  Detective Valenti then says that he immediately cautioned the accused and asked whether he wanted anyone present or informed of his whereabouts.  He says the accused declined both, whereupon the interview was halted and the detective went to another room and obtained a tape recorder.  I take it that the caution that was then administered was that envisaged by the Judges’ Rules.

.	At 12.52pm the interview was continued and recorded on a hand held tape recorder.  At the commencement the accused was given the usual caution, and it is clear that he understood he had the right to remain silent.  Detective Valenti then commenced to put to the accused the unrecorded conversation.  The accused confirmed what was put to him, including:

“VALENTI:	Alright and then following that I asked you whether you you were telling me the truth here or not, and you told me something about an old guy, is that right?
SLATER:	Yeah.

VALENTI:	Alright, do you want to tell me that again now?
SLATER:	Um, we went into his ah flat where he was talking and drank two bottles of Bundy and I punched him and stole $50 or so.

VALENTI:	Alright, what I want to do, Norman, is do a a proper interview regarding this, alright.  Um an interview where you’ll get a copy and it’ll all be done officially okay, this is only preliminary, um are willing to ah participate in that interview?
SLATER:	Yeah.

VALENTI:	Alright, now the reason I don’t want to talk about this any more now is because ah you are entitled to have someone present while we speak to you about this, do you understand that?
SLATER:	Yeah.

VALENTI:	Alright, do you want anyone present while we speak to you about this?
SLATER:	No.

VALENTI:	Sorry?
SLATER:	No.

VALENTI:	Okay, um, at this stage I’m now going to place you under arrest, do you understand that?
SLATER:	Yeah.

VALENTI:	Alright, I’m placing you under arrest for the ah ah the assault aggravated assault committed on ah a guy called Brian Hotz last Monday, the 12th of ah December, at Kirby’s Hotel room number 7, do you understand what I’m saying?
SLATER:	Yeah.

VALENTI:	Alright, as you’re under arrest now, do you wish to have anyone notified as to your current whereabouts, any friends, relatives?
SLATER:	Yes.

VALENTI:	Who would you like to notify?
SLATER:	Ah, probably my mother.

VALENTI:	Your Mom, where can we find her?  Can we ring her?
SLATER:	Yeah, at Sandlewood.

VALENTI:	She’s at home, is she?
SLATER:	Ah not at the moment.

VALENTI:	Alright, what about if we can’t find her, who else do you want to notify?
SLATER:	No one.

VALENTI:	Sorry?
SLATER:	No one.

VALENTI:	Alright, what I’ll do is in between the time we finish in here and we go to the other room to do the proper electronic ah interview, we’ll try to get in touch with your Mom, I’ll speak to her and you can talk to her as well if you like, let her know what’s happening, okay?
SLATER:	Yeah.

VALENTI:	.... as I said we’ll try to locate your mother now and then we’ll get ready for the proper interview.  The time is now 1301 hours.”

	There is no confirmation in that audio tape recording of Detective Valenti having previously cautioned the accused and asked whether he wanted anyone present or informed of his whereabouts.  
	After the conclusion of the audio taped interview, the police telephoned the residence where the accused’s mother lived.  She was not there, but the accused spoke to another person.  That was confirmed in the course of the subsequent video and audio taped interview as follows:

“VALENTI:	Alright, now can you also confirm that earlier on I did tell you that you were under the under arrest for a an assault on a ah gentleman over at um Kirby’s Hotel last Monday night?
SLATER:	Yes.

VALENTI:	Alright, and ah following that I I asked you whether you wanted anyone ah present while you were spoken to.
SLATER:	Yeah.

VALENTI:	Okay and did we try and get in touch with somebody for you?
SLATER:	Yeah.

VALENTI:	Who was that?
SLATER:	Um my mother.

VALENTI:	Your mother?
SLATER:	Yeah.

VALENTI:	That’s right, and she wasn’t there, is that right?
SLATER:	Yeah.

VALENTI:	Okay, did you speak to somebody else after that?
SLATER:	Um just my brother-in-law in ah Cassia.

VALENTI:	Alright, so he knows where you are right now?
SLATER:	Yeah.

VALENTI:	Okay, are you happy with that?
SLATER:	Yeah.

VALENTI:	Alright, did I also tell you that you didn’t have to answer any questions while you were here?
SLATER:	Yeah.

VALENTI:	Alright, and did I do that on a tape recording on this little hand held cassette in another room before?
SLATER:	Yeah.

VALENTI:	Alright, now and also while I was speaking to you did I ask you whether you wanted to have somebody present with you while you were interviewed?
SLATER:	Yes.

VALENTI:	Okay and ah once again did you say that you you didn’t?
SLATER:	Yeah.

VALENTI:	Is that right?
SLATER:	Yeah.

VALENTI:	Alright, are you still want to continue this interview by yourself, or have you changed your mind since then?
SLATER:	Ah, still continue.

VALENTI:	Alright then.  Once again if you change your mind, it’s your choice, you can do so and we’ll stop and make arrangements for you then, alright.  Do you understand?
SLATER:	Yeah.”

	In his own evidence the accused said that he had spoken to his brother-in-law Terry Foul, who was about 24 years old.  He spoke English and he was asked to come to the police station, but he declined, and the accused told him to tell his mother to come to the police station straight away when she came back from shopping.

.	At 13.17pm the video and audio recorded interview was commenced and it terminated at 14.01pm.  At the beginning Detective Valenti asked the accused a number of questions to establish his personal background, such as age, date of birth, where he was born, where he was then living and working, the type of job which he had and his standard of education.  The accused acknowledged that his first language was English, that he spoke Aboriginal languages, and that his preferred language was English.  He was told that if at any time he did not understand what the policeman was saying he was to point that out and not be afraid to say something.  He denied that he was under the influence of any alcohol or drugs, saying the last time he had had a drink was about twelve o’clock on the previous day.  He confirmed he had finished his shift work at about a quarter to five that morning, had had a couple of hours sleep, and said he was feeling a bit tired.  Detective Valenti then informed him that if he was too tired to continue with the interview it was quite all right to stop, he could then have a sleep and start again.  The accused acknowledged that he was still sure that he would be happy to proceed. Detective Valenti again said that if he started to get too tired whilst they were talking, it could stop and that the accused could just tell him when he was feeling tired.

	A further caution was given, and when asked what it meant, the accused replied: “I don’t have to answer any questions unless I wish to”.  The interview continued, and he made a confession as to his involvement in the alleged offence, except for a consistent denial that the amount taken from Mr Holz was not $100, but $50.  

		The accused was born on 9 March 1974 and was thus nearly 21 at the time of the interview with the police.  The evidence from the answers given in the course of that interview and in sworn evidence before me shows that he is a person of Aboriginal descent, who has lived principally in urban areas all his life and has been educated to a standard of year 10 in ordinary community schools.  Much of his upbringing has taken place in small towns however.  He regards English as his first language, although he speaks some Aboriginal language as well.  He lives with his mother in Katherine and she gave evidence in clear English language.  At no stage did the accused profess to have any difficulty understanding police questions, his answers were responsive, and he occasionally corrected himself.  Many of the police questions were non-leading and he had many opportunities to explain things in his own words, which he apparently did quite satisfactorily.  Viewing the video of that interview there is nothing that would indicate to me that the accused had any difficulty in communication in the English language or that he was suffering from the influence of alcohol or drugs or unduly tired.

		The accused is as fluent in English as the average white person of English descent.  He does not share the disadvantaged background of those for whom the Anunga Rules were framed.  Aboriginality is not the only criteria on which the application of the Rules depends.  He demonstrated a clear understanding of his right to remain silent.  That the police may have gone some way in purported compliance with the Rules does not mean that they were obliged to comply.

		The recording of interviews between investigating police and accused persons has many purposes.  Principally it ensures that an accused is protected from intimidatory tactics on the part of police and to obtain a faithful record of what is said, but it also protects police against unfounded allegations made by an accused.  During the course of evidence it became reasonably clear that apart from relying on compliance with the Anunga Rules and provisions of the statute, the accused was seeking to have the evidence of the confessions ruled inadmissible because to use them would be unfair to him.  He gave evidence, for example, that when he admitted to lying in the course of the unrecorded interview, after being challenged by Detective Valenti, Detective Kelly had said to him: “You might as well get it off your chest and tell us the truth”, a possible inducement.  The accused went on to swear that he then said:

“The old guy grabbed me from behind in an unusual way, it felt strange, I turned around and hit him, kicked him a couple of times with me thongs, then as he was sitting up I saw the $50 in his pocket and took it and went”.

		That version of events is denied by both police and I accept them on it.  The accused had ample opportunity to have that scenario recorded and failed to do so.  His credibility is also considerably in doubt because of his evidence that he was tired, had been drinking alcohol and smoking pot not long before he went with the police to the station.  As already indicated, if he was tired, he was given every opportunity to delay the interview until he had rested.  As to drinking, he told the police that he had had his last alcoholic drink about 24 hours prior to the interviews.  The police detected no indication that he was affected by alcohol.  Given their attitude to his tiredness, I have no reason to think that if the accused showed sign that he was not capable of properly participating in the interview and looking after his own interest, he would have been given a chance to recover. If he drank alcohol early in the morning (which I very much doubt), I do not accept that he was affected at the time the interviews commenced.

Conclusions of fact and law
1.	The accused voluntarily accompanied the police to the police station.  The police at that stage had statements from the other two people, and I accept the police evidence that they were only endeavouring to obtain a witness statement from the accused with a view to eliminating him from their enquires.  They commenced the interview in a room equipped with a word processor, not any electronic recording device; the room was used to prepare statements from witnesses, not suspects.  Detective Valenti made general notes, not verbatim notes, for the purpose of compiling a formal witness statement.  

2.	During the interview in the witness room, Detective Valenti became suspicious that the accused was not telling him the truth in respect of the matter which might possibly connect him with the offence.  He said, and I accept, that there were other possibilities open as to the reason for the inconsistency.  He did not then consider he had a duty to caution the accused in accordance with the requirements of the Judges’ Rules because he had not made up his mind to charge him with a crime.  Nor did he have the requisite belief that would justify an arrest pursuant to s123 of the Police Administration Act, that is, a belief on reasonable grounds that the accused had committed an offence.  Nor did he suspect that the accused had done so.  As to who is a “person suspected” see what was said by Mildren J. in R v Maratabanga (1993) 3 NTLR 77 at 86 and the views of Justice Kearney referred to in David Simon Grimley v The Queen, Court of Criminal Appeal, unreported, 27 July 1995 at p31.

3.	When challenged as to whether he was telling the truth, the accused said words to the effect: “I rolled the old man”.  That was sufficient to give rise to a need to deliver the usual caution, which Detective Valenti says he administered, and was sufficient to give rise to the belief justifying an arrest.  Whether Detective Valenti formally arrested the accused at that stage is not entirely to the point. It is clear that from that time the accused was in custody.  The Detective says that he then asked the accused whether he wanted anyone present or informed as to his whereabouts.  The invitation to have someone present is not conclusive.  Assuming the Detective regarded the accused as being a person to whom the Anunga Rules applied, then he may have borne in mind the desirability of having a “prisoners friend” present, but that requirement arises prior to arrest.  As to informing someone of the accused’s whereabouts, the genesis for this thought could only have come from s140 of the Act. That only applies after a person has been arrested.  Furthermore, it is apparent that once the accused made the admission he was under arrest.  It was made plain to him that he was detained, otherwise why talk about having someone present and notifying someone of his whereabouts?  The Detective then left and obtained the hand held tape recorder, leaving the accused in the room with Detective Kelly.  Those words, in the circumstances of the case, “were calculated to bring to the defendant’s notice, and did bring to the defendant’s notice, that he was under compulsion and thereafter he submitted to that compulsion” (Alderson v Boothe [1969] 2 QB 216 at 220 cited with approval in Hatzinikolaou v Snape (1989) 41 A Crim R 389 at 392-393; Smith v The Queen (1956-57) 97 CLR 100 at 129).  The accused’s evidence in cross-examination accords with that of Detective Valenti as to the caution and other words spoken immediately prior to the Detective obtaining the hand held tape recorder.

	I find that the accused was effectively under arrest immediately after he made the admission during the unrecorded interview.  That is the effect of the whole of Detective Valenti’s evidence.  He maintained that although he asked the accused whether he wanted anyone notified as to his whereabouts towards the end of the hand held tape recorded interview, that was meant to be by way of confirmation of what he had said at the conclusion of the unrecorded interview.  I think he did it twice, probably out of an abundance of caution on the second occasion.  Similarly, his telling the accused that he was placing him under arrest.  He was not acting in deliberate or reckless disregard of a statutory duty.

	According to the Detective, the accused declined the opportunity to inform someone of his whereabouts at the conclusion of the unrecorded interview.  The accused said in his examination-in-chief that he was unsure as to whether the police talked about whether he wanted to have someone with him or whether he was under arrest or any of those sort of things, but in cross-examination he affirmed on being asked leading questions, that he was cautioned after he made the admission in the unrecorded interview, that the police then talked to him about having someone present and when asked what he said in response to that, the accused replied: “I said “ring my mother” she wasn’t there so ....”.  When asked again whether he had said he wanted to ring his mother, the accused replied “Yes”.

	Bearing in mind the view I take of the accused’s credibility, I accept the evidence of Detective Valenti that at the conclusion of the unrecorded interview the accused declined the opportunity to inform anyone of his whereabouts.  There was no need to defer the questioning since the accused did not seek the ability to make or attempt to make any communication.  I feel fortified in the conclusion I make by the prompt response to the accused’s request at the end of the hand held recorded interview.

4.	The police then set about an electronic recording by the hand held tape recorder of the second interview.  Clearly the questioning under s137(2) had commenced at that time.  Having heard the accused’s admission during the unrecorded interview, and having arrested him (in the circumstances I have explained), he was then being questioned to obtain evidence in relation to an offence which they believed on reasonable grounds involved him.  If any of the first interview comprised a “questioning” for the purpose of s142, then the substance of the admission made during the unrecorded interview was confirmed, and, it will be noted the accused was given an open ended opportunity to say what he liked at this point.

	Section 140 of the Police Administration Act requires that before such questioning:

	“... the investigating member must inform the person in custody that the person -

(a)	does not have to say anything but that anything the person does say or do may be given in evidence; and 

(b)	may communicate with or attempt to communicate with a friend or relative to inform the friend or relative of the person’s whereabouts,

....

the investigating member must defer any questioning or investigation that involves the direct participation of the person for a time that is reasonable in the circumstances and afford the person reasonable facilities to enable the person to make or attempt to make the communication.”

	There is no doubt that it was practicable to comply with that provision.  The hand held tape recorder was in an adjacent room and was obtained to be used for that very purpose.  The giving of the statutorily required information should have been the first thing they said and recorded, not the last.  The fact is, however, that there is an electronic record of the information being conveyed and of the accused’s response.

5.	Having given the information, the police must defer questioning for a time that is reasonable in the circumstances and afford the accused reasonable facilities to enable him to make or attempt to make the communication.  That is all the statute requires.  It was done in this case at the conclusion of the hand held tape recording.  The accused had access to a telephone, he called his home, he found his mother was not there (as he anticipated) but he spoke to another person whom he identified as his brother-in-law.  He informed that person of his whereabouts.  The opportunity to be afforded is to communicate or attempt to communicate with a friend or relative; the questioning was deferred for a time which was reasonable in the circumstances to enable him to make or attempt to make the communication and he was given access to a telephone for that purpose.  The only purpose recognised by the statute is to inform the friend or relative of the person’s whereabouts and that purpose was fulfilled.  The position may have been different had the accused not spoken to anyone, although I doubt that there would be any obligation on the police to go and look for her, and, if found, bring her back to the station so that the accused could speak to her there.

6.	The video and audio recording of the third interview followed and was carried out in compliance with the requirements of the statute.  The accused’s mother went to the police station whilst it was being undertaken, and was refused access to her son, but I am not aware of her having been denied any right in that regard or of any right of the accused’s being thereby infringed.  During the course of that recorded interview the accused used much the same expression as that attributed to him by the police in the unrecorded interview “... what happened then?  I rolled him”.

Conclusion
		The only failure of the police lay in not having recorded the information given to the accused pursuant to s140(a) and (b) of the Act at the conclusion of the first interview.  The purpose of the recording is to prove compliance with the Act.  The accused acknowledges compliance.  In those circumstances admission of the evidence would not be contrary to the interests of justice.

		I am satisfied that the confessions and admissions made by the accused were made voluntarily in full knowledge and understanding of his right to remain silent.  Apart from the circumstances of this case, there is evidence that he has previously had involvement with police procedures and understands the rights of accused persons.  No unfairness has been shown in the police conduct, and there is nothing else untoward in the procedure adopted by them other than the failure to record what said at the conclusion of the first interview.  The whole of the evidence of the three interviews ought to be admitted into evidence.  I direct that these reasons are not to be published, other than to the parties and their legal representatives, until after conclusion of any trial.