PARTIES:	BETWEEN: THE QUEEN
Appellant .

AND:
RODERICK NUNDHIRRIBALA

Respondent

TITLE OF COURT:

JURISDICTION:

FILE NO: PUBLISHED: HEARING DATES:

JUDGMENT OF:

In the Supreme Court of the Northern Territory of Australia

Supreme Court of the Northern Territory of Australia exercising Territory Jurisdiction

No 28 of 1994

7 October 1994

15 September to 26 September 1994

MILDREN J

CATCHWORDS:

Criminal Law; voire dire; admisability of evidence; involuntary evidence; exercise of Court's discretion to exclude for unfairness or public policy; Anunga Rules; cross-examination by police.

Criminal Law; voire dire; admissability of evidence not presented at committal; pre-existing bad relationship evidence; hearsay evidence; probative value of evidence compared with the prejudicial effect; evidence to the state of mind of victim admissable; Court entitled to test the probative weight of evidence by assuming the jury capable of accepting as true and accurate.

Le islation

S.26L Evidence Act; Police Adminsitration Act, Sl40; S137(2).

R v Anunga and Others; R v Wheeler and Others (1976) 11 ALR 412, applied. Rostron v The Queen (1991) 1 NTLR 191, cited.
The Queen v Maratabanga (unreported, Supreme Court of the Northern Territory,

23rd June 1993, Mildren J), applied.
Gudabi v R (1983-1984) 52, ALR 133, applied.
Elie Azar (1991) 56 A Crim.R 414, applied.
R v Banner (1970) VR 240, cited.
R v Van der Meer (1986) 35 A.Crim R232, cited.
Maurice Peter Frawley (1993) 69 A.Crim.R. 208, approved.
R v Baker [1989] 1 NZLR 738, followed.
James Hasler (1985-1986) 21 A.Crim.R. 376, cited.
Doney v The Queen (1990-1991) 171 CLR 207, cited.
R v Hissey (1973) 6 SASR 280, cited.
R v Mathews (1992) 58 SASR 19, followed.
Walton v The Queen (1988-1989) 166 CLR 283, followed.
R v Sinclair (1946) 73 CLR 316, cited.
Van Der Meer and Others v R (1988) 82 ALR 10, followed.
R v Wilson [1981] 1 NZLR 316, approved.
The Queen v Bankowski (1971-1972) 18 FLR 179, applied.
Smith v The Queen (1956) 97 CLR 100, cited.
R v Brown and Bruce (1931) 23 Cr.App.R.56, cited.
R v Pritchard (1991) 1 V.R. 84, approved.
The Queen v Leak [1969] SASR 172, approved. The Queen v Lacey (1982) 29 SASR 525, cited.
R v Weetra (1993-1994) 93 NTR 8, followed.
Wilson v The Queen (170) 123 CLR 334, followed.
R v Bond  [1906] 2 KB 389,   approved.
R  v Ivliano [1971] VR 412,  approved.
R v Mills [1986] 1 Qd R 77, approved.

REPRESENTATION:

Counsel:

Plaintiff: Defendant:

Solicitor:

Mr. Cato Mr. Davies

Plaintiff: Defendant:

DPP
Katherine Regional Aboriginal Legal Aid Service

JUDGEMENT CATEGORY: JUDGEMENT ID NUMBER:
NUMBER OF PAGES:

CATB
MIL94022 41

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

No. 28 of 1994 (9320774)

THE QUEEN
AND:
RODERICK NUNDHIRRIBALA

REASONS  FOR RULINGS
(Published  7 October 1994)

MILDREN J
This is an application pursuant to section 26L of the Evidence Act to determine the admissibility of certain evidence which the Crown intends to lead at the trial of the accused. On 26 September, after a seven day voire dire  hearing  had  been conducted, I announced my rulings and said then that I would provide written reasons at a later time. I now do so.

The accused stands charged of having murdered Natalie Daniels on 7 November 1993 at Ngukurr in the Northern Territory. The offence was alleged to have taken place in the early hours of that morning. The accused was arrested  at 12.02pm on  the same day and was taken to the Police cells at Roper River. At 12.15pm on that day he was spoken to by Det. Kappler in the presence of Det. Sgt. Grant from the Katherine C.I.B. This conversation was recorded on audio tape (Ext P2). At that stage he was under arrest. He was asked if he wanted someone to sit with him as a friend and he nominated Tony  Wurramara.  He was advised  that Mr  Wurramara was a witness and asked to nominate someone else. The accused said  that  he  wanted Tony and nobody else. Det. Kappler said that he would ask Tony, but if he does not want to act as his friend he asked who else he would pick. He was asked also if he knew anyone in Katherine. He was told that they would be taking him  back to Katherine. He was also asked if he wanted the police to notify friends or

relatives to tell them that he was in police custody. He was informed that he was  arrested for murder.

At about 1.44pm the accused was taken by other police and  conveyed  to Katherine. Det. Kappler and Sgt. Grant remained in Ngukurr to continue their enquiries. They arrived back at Katherine at approximately 6.13pm. After attending to some administrative matters they attended in  the  cells  and  spoke  to  the  accused  at 7.13pm. This conversation, which  was  also  tape recorded,  was  admitted  as  Ext P3 on the voire dire. The accused  was  reminded  that he was  under  arrest  for  murder  and he was asked questions to ascertain whether  he knew  why  he was arrested.  He was asked whether he wanted the police to tell his family where he  was  but  the accused said that he did  not  wish  them  to advise anybody.  He  was  asked  how  he felt and the accused said that he wanted to sleep.  The accused  said  that he had  been fed in the meantime. He was  told  that  Tony  Wurramara  did  not  wish  to  sit  with him as his friend and he was  asked  to  choose  somebody  else.  The  accused mentioned that he had a brother in Katherine and that he would think about who he wanted and let the police know in the morning.

At about 7.46am on Monday 8 November 1993 Detectives Kappler and Grant in the company of Sgt. Marsh attended the cells area and spoke to the accused again. The purpose of this discussion was to ascertain whom the accused wished to sit as his prisoner's friend. Det. Kappler said that he nominated his  brother  James.  This particular discussion was not recorded.

At 7.45am the police commenced to make enquiries in order to locate the accused's brother and at 9.15am Sgt.  Grant located  him  at  some flats  and  made arrangements to collect him in about half an hour's time.

At 10.12am Det. Kappler spoke to James  Nundhirribala  at  the  Katherine  police station in an interview room adjacent to the C.I.B.  office.  This  discussion  was recorded on audio tape, and admitted as Ext P4 on  the  voire dire.  The  accused's brother was told that the accused had asked that he sit with him as the accused's

prisoner's friend. James was informed that the police intended to speak to  the accused about the death of a young girl at Ngukurr the previous day. Det. Kappler informed James that the accused may not wish to speak to the police but if he did choose to speak to them anything that he did say would be recorded on video and cassette tapes, and later they would be played in court for the Judge to listen to. James was informed that his role was to help and support the accused, to make him comfortable, to make sure that he was alright and that  he was  not frightened  and that he was not there to help the police.  He was  informed  that  if  the accused needed help with anything or could not understand anything that he ought to tell the police straight away and to try to assist the accused if  he felt that the accused  did  not understand. He was advised to tell the police immediately if there was any problem of that kind. He was advised that he could talk to the accused  at any time  he liked during the interview; there was no need for him to ask for permission to do this and that he may speak to the accused either in English or  in  their  own language. The police ascertained from James what languages  they  spoke  (apart from English) and confirmed that the accused and his brother spoke the same native language. James was also informed that if he did not think that the accused understood what was being said to him the police might ask him to act as an interpreter. There is nothing to suggest that the  accused's  brother  did  not understand the conversation or what was expected of him.

About an hour later the accused was removed from the cells and escorted to an interview room where he was seated with his brother and a record of interview commenced which was recorded both on video and audio cassettes. The record of interview formally commenced at 11.28am and proceeded until 12.25pm when there was a break, inter alia, for lunch. The record of interview recommenced at 1.18pm and concluded at 2.36pm. The audio and video cassettes, as well as transcripts thereof were admitted on the voire dire as Exts P5(1), P5(2), P7(3) and P7(4).

Counsel for the accused has challenged the admissibility of the taped conversations between the accused and the police in the police cells and also the admissibility of the formal record of interview. Mr Cato for the Crown has indicated that the

Crown does not intend to adduce evidence at the trial of the conversations with the accused in the police cells. The remaining issue therefore is whether the formal record of interview should be admitted. Mr Davies for the accused claims that the record of interview was not voluntary; alternatively if it were  found  to  be voluntarily given, it ought to be excluded in the exercise of my discretion either on the basis that it would be unfair to the accused to admit it or alternatively on  the basis that it ought to be excluded on public policy grounds.

The Crown has also indicated that it intends to adduce evidence of bad relationship between the accused and the deceased. The substance of the evidence which the Crown wishes to adduce concerns an incident (or incidents) which occurred somewhere between one and two months prior to the deceased's death at Ngukurr. On the day in question the community was smoking the house of an aboriginal person referred to as Old Wilton Huddleston who had died a few weeks prior  to  that. There were a considerable number of people from the community and from other nearby areas who had come to Ngukurr for the ceremony. Old Wilton Huddleston' s house was next door to the house of Mrs Cherry Daniels, the deceased's mother, where the deceased and the accused  had  been  living.  The Crown indicated that it intended to call evidence from a Mr Nelson Hall who would say that he saw the deceased running from Mrs Daniels'  house across  the road  to the house of a Mr Cliff Thompson opposite. Mr Hall would  also be called  to say that he saw the accused come out from the rear of Mrs Daniels' house with a knife, that he walked over the road to Mr Thompson's place, that he saw the deceased standing behind Mr Thompson on Mr Thompson's verandah and that he saw Mr Thompson struggling with the accused.

The Crown also indicated that it intended to call Mr Cliff Thompson to give his version of the same incident. Mr Thompson would be called  upon  to say  that he was sitting outside his place on the lawn. He heard noises inside the kitchen and he walked in. As he reached the front door leading to the verandah,  he saw a rubbish bin fly out through the door. The accused then came out from the house and Mr Thompson asked him what he was doing at his place. At that point somebody

shouted behind his back that the accused  had a knife.  According to Mr Thompson he looked in the direction of the accused but did  not  see a knife.  Mr  Thompson said that he grabbed the accused and asked him what he was doing.  The accused then shook him off and ran straight across the road to Mrs Daniels' place. He  claimed that he did not see the deceased at any time during this incident.

The third witness the Crown indicated it wished to call on the issue of relationship was Mrs Daniels. During the voire dire, I heard evidence from Mr Hall, Mr Thompson and Mrs Daniels as well as a number of other witnesses. I gave to Mr Davies considerable latitude during the voire dire because it was common ground that this evidence, as well as evidence relating to certain statements made by the deceased shortly before her death, and which the Crown also wished  to lead,  had not been led at the committal, and the Crown had given late notice of  this evidence to the accused's counsel. The purpose of this latitude was to dispel any prejudice which the accused might suffer as a consequence of the lateness of the notice given. During the voire dire the Crown did not lead any evidence concerning a bad relationship between the accused and the deceased from Mrs Daniels who said that although there were minor arguments between them from  time to time,  none were of any consequence.

The Crown also intends to call three witnesses concerning statements made by the deceased shortly before her death to show that she was in a state of fear of the accused. The Crown case is that on the evening of 7 November 1993 the deceased and the accused had attended a disco at Ngukurr. The Crown intends to call a witness, Charmaine Ashley, to give evidence that whilst at the disco she had a conversation with the deceased in which the deceased told her that the accused was going to stab her because the accused had asked her to take the deceased' s nephew home from the disco and the deceased had refused as she wanted to stay  at  the disco. This witness claimed in her evidence given before me that shortly before she was told about this by the deceased, she saw the deceased and the accused go outside the disco and the accused  was  II getting angry  with the dead girl11 •

Later that evening the deceased left the disco  and  spoke  to Mrs  Cherry  Daniels,  at her mother's  home.  According  to Mrs Daniels,  at this time the deceased  was  sitting on the bonnet of a white Hilux utility belonging to Mrs  Daniels  which  was  in  the yard. At this stage the accused was inside the house. Mrs Daniels claimed that the deceased told her  that  the accused  was angry  with  her because  he did  not want  her to dance at the disco. The deceased had said that she intended to go  to  her  Uncle  Barry Rami's place nearby. Mrs Daniels said that after this conversation  she went  inside the house and after awhile she had a conversation with the accused who  had come from one of the bedrooms into  the lounge.  She asked  the accused:  "Why  are you arguing?" The accused did not answer that, but instead he asked Mrs Daniels "Where is  she?".  Mrs  Daniels  said  "I  don't  know".  The  accused  then  left  the house in the Hilux.

A number of witnesses were called to say  that  the  deceased  was  seen,  after  the disco, at Mr John Thompson's house, (a  different  house  from  that  of  Cliff Thompson). It is the  Crown  case  that  it  was  whilst  she  was  at  Mr  John Thompson's house that the accused arrived in the Hilux and  murdered  her  in  one of the bedrooms of the house with a knife. The Crown intends to call a Mr Tony Wurramara to say that he heard the deceased say, a short time before the accused arrived, that she was scared of  the  accused  because  the  accused  was  chasing  her with a knife. The Crown submits that the  evidence  of  Charmaine  Ashley,  Mrs Daniels, and Mr  Wurramara  is  admissible  as  indicating  the  deceased's  intentions and reasons for being at Mr John Thompson's house at that time, instead of being at home with the accused, due to her being in a state of fear, which provides  an explanation as to why, when the accused arrived at John Thompson's house, the deceased ran into the bedroom and sought protection from Mr  Thompson  who was  then in that bedroom. This evidence was objected to by Mr Davies on behalf of the accused on a number of  bases.  First,  it  was  submitted  that  the  evidence  was  hearsay and inadmissible. Secondly  it  was  submitted  that  if  it  is  admissible,  it ought to be excluded in the exercise of my discretion, as being of trifling probative weight by comparison with its prejudicial effect.

THE RECORD OF INTERVIEW

Counsel for the accused, Mr Davies, submitted that the record of interview was in - admissible because it was not voluntary. He  submitted  that  the  accused  is  a traditional aboriginal person, the very kind of person whom the guidelines in R v Anunga and Others: R v Wheeler and Others (1976) 11 ALR 412 were designed to protect.

I make the following findings of fact concerning the accused. The accused is a  full blood aboriginal.  He is a young  male probably  about 18 years of  age.   I am  unable   to make a finding as to his exact date of birth as that  has  not  been  proven.  The accused has told the police on one occasion  that he was 18; on another  occasion  that  he was 16. Having seen him in  the dock I  do  not  think  he was  16 at  the time;  I  think he was more likely  to have been 18.  He was born in Gove and  normally  lived   in Numbulwar. The accused attended  school  at Numbulwar  until about  year  8 or 9 and also attended at Kormilda College in Darwin for a period of time although I am unable to find for how long. There is  no  evidence  that  he  can  read  or  write  although  there is  evidence  that he can  sign  his name.  The accused  had  entered  into a traditional marriage with the deceased  at  Numbulwar  in June 1993.  The deceased had met the accused whilst they were both attending Kormilda College. After their marriage the deceased and the accused lived at  Numbulwar  where  the  accused's family lived,  at  an  out-station  near  Numbulwar,  and  also  at  Ngukurr.  The accused's first language is not English. I find that he spoke Nuyubuyu, which is the language most of the people from Numbulwar  speak,  and  that  he also spoke Creole. He did not have any regular employment. He spent most of  his time hunting and  he  was also involved in dancing. The accused's father is a very senior person in Numbulwar, highly respected  and  a  person  responsible  for  certain  ceremonies  in that area. The accused, however, is not an  aboriginal  with  limited  contact  with western civilisation. He is able to drive a  car.  Certainly,  whilst  he was  at  Ngukurr and also at Numbulwar, he  lived  in  a  house.  A  photograph  of  Mr  Thompson's house has been tendered.  This house,  at least,  is a properly  constructed  home.  It is not much from which to gain an impression of Ngukurr but one can see that the

street in front of Mr Thompson's home is not paved,  curbed  or  guttered.  I  do  not think it would be fair to infer that  any  comparison  can  be  made  between  Ngukurr and suburban Darwin, but on the other hand it is  likely  that  Ngukurr  is  similar  to most of the other aboriginal townships in the  Northern  Territory.  There is evidence that Mr Thompson's home had electricity and that there was  also  a  television  set which people watched. There was also evidence that  the accused  was listening  to  tapes at one stage whilst at Mrs Daniels' place. The other observation that I  would  make was that throughout most of the voire dire proceeding the accused  looked attentive and seemed to be following the proceedings with interest. He was also properly, although casually, dressed, and likewise appeared  to  be  properly  but casually dressed during  the  record  of  interview.  It  is  apparent  that  during  the record of interview from time to time he  needed  the  assistance  of  his  brother  in order to explain himself. Nevertheless he seemed to have an adequate knowledge of ordinary conversational English provided that  short,  simple  words  and  sentences were used. Throughout the record  of  interview  he  spoke  very  quietly  and  often hung his head. I got the impression  that he was like many aboriginal  people -  fairly  shy when talking to authority figures such as police.

The Crown has also established that the accused had been interviewed by the police before this occasion  on  two  previous  occasions.  The  Crown  relies  in  particular upon the most recent of his previous records of  interview  in  February  1992  (Ext. PlO). The purpose of this evidence is to show that he had some familiarity with the process of being interrogated by police and that on that earlier occasion he had understood the caution when it was explained to him in English. I find that on that previous occasion he did understand that he  had  a  right  to  speak  or  remain  silent and that he demonstrated that he knew that a judge or magistrate had the power to sentence a person who had committed a crime to a term of imprisonment.

The record of interview is in two parts. At the beginning  of  the first  part  of  the  record of interview (Ext P5(1)) the accused was asked a number of questions  concerning his background and his relationship  with  the  prisoner's  friend.  No criticism was directed towards that course: see Rostron v The Queen (1991) 1

NTLR 191 at 198. Mr Davies did however submit that the record  ought  not  be admitted because the police had failed to comply with s140 of  the  Police Administration Act which required the police to inform the accused of his right of silence before any questioning or  investigation  under  s137(2)  commenced.  Mr  Davies submitted that the accused was not cautioned in any of  the conversations  that the police had had with  the accused  prior  to the commencement  of the formal record of interview, and that the formal record of interview was part of a continuing questioning. In my opinion the record of  interview  was  a  separate  questioning.  It took place at a much later time and in a different locality from that of the original discussion which the police held with the accused at  Ngukurr.  Similarly  the questioning at the Katherine police station had taken place on  the  previous  day. Neither  of  these earlier  conversations  were lengthy.  Both  were primarily  designed  to ensure that the accused knew the  nature  of  the charge  against  him;  the  fact  that he was under arrest; to ascertain whether he wished anyone to be advised of his whereabouts; whether or not he  wished  to  have  a  prisoner's  friend  present  during the record  of interview  and  if  so,  whom.  It may be that in  the course  of  attending  to these matters the accused had said things which were open to be construed as admissions. However the Crown does not seek to lead any evidence of these earlier conversations. I do not think that in all the circumstances the formal records  of interview can properly be seen as  a continuation  of  these earlier conversations:  c.f. The Queen v Maratabanga (unreported, Supreme Court of the Northern Territory 23 June 1993 at pages 14 to 15, Mildren J).

Mr Davies for the accused submitted that the whole of the record of interview was involuntary because, notwithstanding that the accused  understood  that he had  a  right to speak or to remain silent, it was not demonstrated that he exercised  his right  to  speak pursuant to a free choice  to  speak  or  to  remain  silent.  His  submission  was that although the taped records of interview demonstrate that the accused knew that whatever he was saying was being recorded and would  later  be  listened  to  by  a Judge, it was not shown that he  understood  that  whatever  he  said  might  later  be used as evidence at his trial.

I do not accept that the mere fact that an accused  person  is not  fully aware  of  his  legal rights necessarily means that the confession is not voluntary  in  the legal  sense. Mr Davies' submission was that a free choice could  not  be  made  unless  the choice was an informed choice. Mr Davies was unable to support his argument with any authority. On the other  hand  there  is at least  two authorities  which  are contrary  to the submission which he made. In Gudabi v R (1983-1984) 52 ALR  133,  the trial  Judge had admitted a record of interview made by an aboriginal person. It was not shown that the accused  had said in  his own  words,  in accordance  with guideline (3)  in R v Anunga (supra), that whatever he  said  might  be  used  against  him  in  evidence, or words to that general effect. The Full Court of the Federal Court of Australia on appeal agreed that police officers did not act fully in accordance with guideline (3) which suggests that police officers administering the caution  should ask the aboriginal suspect to tell the police what is meant  by  the  caution,  phrase  by phrase, and should not proceed with the interrogation until it is  clear  that  the  aboriginal has apparent understanding of his  right  to remain  silent.  At  page 143  of the Full Court said:

"Notwithstanding this departure from the guideline, His Honour concluded that sufficient was  done  to  ensure that the appellant was aware of  his  right  to  remain silent. Some criticism  was  made  of  his  Honour's finding in relation to the conversation preceding the formal interview. It was said  that  his Honour  fell short of stating his satisfaction that  it  had  been  clearly brought home to the appellant that he had a free choice whether to speak or remain silent  and  that  he  had spoken in the exercise of that free choice. We do  not think that this criticism is justified. In reference to that matter his Honour  said:  "I  am  satisfied  that  the accused knew he was not obliged to answer those questions." We do not  believe  that,  in  finding  as  he did, his Honour fell into error."

More recently, the Court of Criminal  Appeal  (NSW) in the case of  Elie Azar  (1991) 56 A Crim.R 414 unanimously held that  the  mere fact  that a  person  is  unaware  of his legal rights does not necessarily mean that the Crown would have failed to have established that the confession was voluntary. Gleeson CJ, with whom Finlay and

Smart JJ agreed, said at pages 419 - 420:
11	8. It is also important to note  that  what  is involved is an enquiry as to the accused's  will,  rather than as to the accused's state of knowledge, including knowledge of his legal rights. What a person knows or does not know may be relevant,  as an  evidentiary  fact, to the question whether the person's will has been overborne, but knowledge or belief, on  the  one  hand, and will, on the other hand, are different concepts.
There is no justification for the proposition that a statement is voluntary in the relevant sense only if the maker of the statement was aware, at the time it was made, that the law  offered  a  choice  between  speaking or remaining  silent.  Admissions  are  frequently  made  by accused persons, often to persons other than police officers, and sometimes to police officers, in circumstances where the maker of the statement is uninterested in, and unaware of, the legalities of the situation. Indeed if, as has  been  noted  above,  a statement may be voluntary even though  made pursuant to a legal obligation, a fortiori a statement may be voluntary even though the maker  is  unaware  of  what  the law requires....
On the other hand, a person's awareness, or lack of awareness, of his right to silence may be of practical or evidentiary significance if an issue arises as to whether the person's will has been overborne, for example, by police officers in the course  of questioning. Whilst the failure of  the police to caution a suspect before questioning is often relied on as a reason for rejecting evidence of admissions on the grounds of unfairness, it may also be of factual relevance to the question of voluntariness: Banner (1970) VR 240 at 247; Van der Meer (1986) 35 A Crim.R. 232 at 237. Just as the fact that a person is mentally handicapped may be of relevance to an argument that his will has been overborne, so also the fact that a person is unaware of his legal rights may, in combination with other facts and circumstances, be relevant to such an argument. However, mentally handicapped people can make voluntary admissions (Sinclair (1946) 73 CLR 316) and so can people who are unaware of their legal rights. 11

In this particular case, although guideline (3) in the Police Commissioner's general orders were not complied with to the letter, it is my view that the police went to

very considerable lengths to attempt to explain the caution fully to the accused, and certainly on the most important point, namely that the accused had a right to speak  or to remain silent, I am satisfied that the accused was well aware that he had that choice. I am satisfied that the Crown has established that he was aware that he had that choice not only at the beginning of the videoed record of interview but  they have established that he was likewise aware of that choice when the video record of interview recommenced after the lunch time break. I am also satisfied that the accused was well aware that the interview was  being both audio and  video taped.  As I have said before, the accused is not so unsophisticated as to be unaware of  either television or tapes and it is apparent from the record of interview that he was aware that the tapes would be listened to by a Magistrate or Judge and that Judges have the power to send people who are in trouble with the law to jail. It is true that after the recommencement of the interview in the afternoon the accused said that he did not understand the questions directed to him to elucidate whether he had understood that anything he said might be used in evidence against him at his trial. However in relation to the first part of record of interview it is clear that he had acknowledged most of the elements which the second part of the caution is designed to bring home to him. At the beginning of the first tape Ext P5(1) he was asked:

"KAPPLER: NUNDHIRRIBALA: KAPPLER:

NUNDHIRRIBALA: KAPPLER:

NUNDHIRRIBALA: KAPPLER:

NUNDHIRRIBALA: KAPPLER: NUNDHIRRIBALA: KAPPLER: NUNDHIRRIBALA: GRANT:

... And who might listen to these tapes? Magistrate.
Magistrate.	Alright.	And if you tell me about that trouble what might the Magistrate do?
Don't know.
You don't know. What - alright - what can a Magistrate do? What are some  of  the  things that a Magistrate can do to people? Do you know? Alright. Do you know  who  the  boss man is of the Court?
No.
No.	Who is the boss man m the Court? Roderick?
Judge.
Judge. And what does a Judge do? I don't know.
You don't know. No.
Do they have a Court at Numbulwar Roderick? No. Where do they have Court?

NUNDHIRRIBALA: GRANT:

NUNDHIRRIBALA: GRANT:

NUNDHIRRIBALA: GRANT:

NUNDHIRRIBALA: GRANT: NUNDHIRRIBALA: GRANT:

NUNDHIRRIBALA: KAPPLER:

NUNDHIRRIBALA:

Groote Eylandt.
Groote	Eylandt.	Have	some	boys	from Numbulwar been to Court at Groote Elyandt?
Yeah.
And when they go to Court do they get into trouble from the Judge sometimes?
Yeah.
And what sort of trouble do they get in  from him? Hey?
Send'em away.
Send them away to jail? Yeah.
So you know what that Magistrate does in a
court don't you? Yeah.
Alright. So you  understand  that  if  the Magistrate or Judge listens to these tapes  later, and you tell me about  that  trouble, you  might get in big trouble from the Judge. Do you understand that? Do you understand that Roderick?
Yeah."

It is true, as Mr Davies points out, that there are a lot of long pauses during  this  passage as well as during other passages when the accused is having the caution explained to him and I accept also  that  the  answer  "yeah"  to  questions  like,  "Do you understand that?", are virtually worthless. But on the other  hand,  the passage  does demonstrate that he was aware that the tapes might be listened to by  a  Magistrate, and he had an awareness that people who get into trouble go to Court at Groote Elyandt and are sent away to jail.

I accept Mr Davies' submission that the accused was a person to whom the Anunga guidelines applied and that guideline (3) was not fully complied with. But the most important part of guideline (3) was complied with, namely, that the  interrogation should not proceed until the aboriginal had an apparent understanding of his right to remain  silent. On  that issue  there can  be no doubt.  The fact  that  he  had  a  choice to speak or to remain  silent  was translated  to him in Creole by  the prisoner's  friend at the commencement of  the record  of  interview  and  at  the time of  the resumption of the record of interview in the afternoon the accused acknowledged that he had a

right to "stay quite".

Mr Davies also submitted that there was a breach of guideline (4) of the Anunga guidelines as the police had directed questions to the  accused  which  were  in  the nature of cross-examination. Guideline (4) provides as follows:

"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."

So far as the first part of the record of interview is concerned, (up until  the lunchtime break), I am unable to detect any questions which are in the form of cross-examination.

But during the second part of the record of interview after lunch,  the  form  of  the record of interview takes an entirely  different  course.  Up to  this  point  the accused had told the police that on the night in question he had attended at the  disco  at  Ngukurr, having driven Graham  Daniels'  white  Hilux  truck  to  the  disco.  He  told the police that there were a lot of people at the disco and the names of some of the people he saw there. He said that he had been dancing at the disco with Richard Thompson but with nobody else, and that everyone was having a good  time dancing  and listening to the music. He said  that he was  "half  shot"  and  had  been  drinking  VB or Victoria Bitter beer.  He said  that  he had  drunk five beers  in  half  an  hour at his house before he went to the disco.  He said  that  he was  happy  and  that  he had seen the deceased girl dancing at the disco with  Fiona  Wurramara.  He said  that he  had spoken to the deceased at the disco and had asked her  to go back  home and  she had said that she would. After the disco  finished,  he  returned  home  with  the deceased, Tony Wurramara and Richard Thompson. He said  that  he  had  dropped Tony Wurramara and Richard Thompson off at a place called Silver City  near  the police station. He also said  that  he  took  the  deceased  back  home  to  Graham Daniels' place; apparently he had dropped her off first. When he returned home he

and the deceased had supper and after that he went to  sleep  with  the deceased. Later on he woke up. He denied that there had been a fight between them and said  he then went looking for the deceased to bring her back home. He also said that he saw two bushmen carrying a knife at the place where the disco had been held and  that these men gave him the knife to kill the girL The  prisoner's  friend  had indicated that the accused  had been cursed by them.  The accused said that he went to the Thompson house and that he stabbed the deceased, but that he did not know what he was doing. The accused claimed that it was a mistake. He said that  he arrived at the house in the Hilux. He said that he was  unable  to  recognise  the  knife, and a knife which has been found at the scene was shown  to him  by  the police but he did not recognise it. He said that when  he went inside the house he  was wild and he did not know what he had been doing. He said  that  he saw  the  dead girl inside a room, the first room on the right-hand side as he went in through the kitchen. He said that he missed her with the knife on the first occasion but then  he stabbed her. He maintained that he stabbed her only once.  After  that  he ran away. He repeated again that  he did  not know  what he was doing.  He indicated that the knife which had been given to him was about 30cm long and on one  occasion he said that it was really  sharp.  He said  that  he thrown  the knife away. He said that later he went back to the house to look for the knife but he could  not find it. He said that when he stabbed her, the light was off in the room and that he only stabbed her  "a little bit".  Later  he said that the knife was half blunt and that  the two aboriginal men had been cursing him. Towards  the end of  the first part of the interview he started to break down and accordingly the opportunity was taken to terminate the record of interview and have a lunch break.

By this time the police had at least two possible explanations for the killing. One of the explanations was that he was given a knife by two aboriginal men who had told him that he had to kill the deceased and had  put a curse upon  him.  The other was he simply did not know what he was doing and that he was wild when he went into the room. It may also have been  that both of  these explanations  were really part  and parcel of one explanation. After the recommencement of  the  record  of interview he reiterated that he had stabbed the deceased only once. He was asked

what he thought would happen to the dead girl and he said that he thought that she would die but he did not know why. He also said that he wanted  her  to live, and  that he had thought when he stabbed her that he would hurt her really bad. He also said that he thought that if he stabbed her there was not a good  chance  that she would die. After he stabbed her he said that he stood there watching her; that he cried; and that after he ran away from the scene he went to the church where he cried. He said that he was feeling sorry for stabbing the girl and was frightened  of the police. He reiterated that he didn't want to kill her and that he had found  out  later that she had been taken to hospital and had died.

At this stage in the record of interview the police began  to put to the accused  parts of a statement which they had taken from another witness, John Thompson. The accused told the police he knew who John Thompson was and confirmed that John Thompson was present at the time when he had stabbed the dead girl. He was told that the police had been informed that at the time he was at the disco he appeared to be angry when he was looking at the deceased.  He was asked  whether  he was  angry at that time, and he said no, he was too drunk. Then he was asked this:

"KAPPLER:

NUNDHIRRIBALA: KAPPLER: NUNDHIRRIBALA: KAPPLER: NUNDHIRRIBALA:

John Thompson tells me that he was sleeping in that room - that first bedroom on the left side - and he woke up and he heard that dead girl screaming for help. She was saying for John to stop - stop him. When she said stop him she meant you. Is that true?
Yeah.
Was she yelling that out? Yeah.
Why was she yelling that out for? Don't know."

He was then asked some further questions about the events and then the police returned to Thompson's statement and the following occurred:

"KAPPLER:		That John Thompson - okay - he  says that when he woke up he looked up and saw that you were inside his  bedroom and - that that dead girl was hiding

NUNDHIRRIBALA: KAPPLER:

NUNDHIRRIBALA: KAPPLER:

NUNDHIRRIBALA: KAPPLER: NUNDHIRRIBALA: KAPPLER: NUNDHIRRIBALA: KAPPLER: NUNDHIRRIBALA:

behind John.  So  he  was  between  you two - you and that  dead  girl.  Is  that right?
Yeah.
And he said it was a little bit dark but  he could still see. Is that right?
Yeah.
He says that you had that knife in your hand and he says that that knife was a brown wood colour with metal blade and he says that  -  um  -  you took - ah - two swings at him with that knife.
No only one. Hey?
One.
Who did you swing that at? That was one.
And who was that for? I don't know."

And a little later on the interview proceeded:

"KAPPLER:

NUNDHIRRIBALA: KAPPLER:

NUNDHIRRIBALA: KAPPLER:

NUNDHIRRIBALA: KAPPLER:

NUNDHIRRIBALA: KAPPLER:

NUNDHIRRIBALA: KAPPLER:

NUNDHIRRIBALA: KAPPLER:

He says that you aimed the knife at him - at his  left shoulder two  times.  He says  you  had  a  go at him this way - like if  we're  facing  like  this now - that you had a go at this shoulder  two  times. Is that right?
Yeah. But.
But what? He also said  that  he  -  he  grabbed your right hand to - to stop him - stop you from stabbing him. Is that right?
Yeah.
And he had - he pushed and wrestled with  you  - is that right?
Yeah.
And he says that he  pushed  you  back  towards the door. Is that right?
Yeah.
And then he went back away from  you and  that he was standing on that  mattress  still  between you and that dead girl. Is that right?
Yeah.
And then he says that you came at him and that dead girl again and that you pushed him  down onto the mattress. Is that right?
Mmm.
And he says that while he was sitting on his - on his backside on that mattress and that dead girl  was still trying to hide behind him - he was

NUNDHIRRIBALA: KAPPLER: NUNDHIRRIBALA: KAPPLER:

NUNDHIRRIBALA: KAPPLER: NUNDHIRRIBALA: KAPPLER:

NUNDHIRRIBALA: KAPPLER:

NUNDHIRRIBALA: KAPPLER: NUNDHIRRIBALA: KAPPLER:

NUNDHIRRIBALA: KAPPLER: NUNDHIRRIBALA: KAPPLER:

NUNDHIRRIBALA:

KAPPLER: NUNDHIRRIBALA J: KAPPLER: NUNDHIRRIBALA:

NUNDHIRRIBALA J: KAPPLER: NUNDHIRRIBALA J: KAPPLER:

NUNDHIRRIBALA:

trying to push you away while he was sitting down. Is that true?
Can't remember.
You can't remember that?
Yeah.
He says that while - do you remember - do you remember John - do you - do you remember pushing John down on the mattress?
No.
No.  Did he fall over on  the mattress? I don't know.
He says that while he was on - on the - on that mattress on the - sitting down that dead girl was still trying to hide behind him. Is that right?
Yeah.
And that you came in really close and her hands were on his shoulders from behind.  Would  that  be right?
No.
No that's not right or you can't remember? Can't remember.
He says - John says then that you lean - leaned around behind - his back to where this dead girl was and he says that  you  moved  your  arm  - right arm this one here - you moved that  right right arm twice at that dead girl with the knife. Hey?
Its the right arm punch that (inaudible). You use right arm to punch him?
Yeah.
Yeah. But John says  you  leaned  around  over him to get to that dead girl and he says that you stabbed at that dead girl  twice.  Two  times.  Is that right?
(Native language)
Translation Roderick:	I punched him twice and had the knife in my left hand.
What did he say James? With the fist.
With the fist. (Native language)
Translation: Knife was in my other hand. He was holding that knife (inaudible).
Right. The left hand? Yeah.
Which hand was the knife in when you stabbed that dead girl?
It was the right hand (inaudible).

KAPPLER:

NUNDHIRRIBALA: KAPPLER:

NUNDHIRRIBALA: KAPPLER:

NUNDHIRRIBALA:

Right. This is just what John  says okay.  Now John says that after he saw you stab at that girl twice he says that she just kept yelling out "stop him - stop him". Is that right?
Yeah.
And he says that after you stabbed at  that  dead girl two times that you stood back and you  still had that knife in your  right  hand  and  he  said that he could see blood on that  knife.  He then  said that you stood back a bit further and you dropped that knife  on  the  floor  near  the mattress. Is that right?
Yeah.
And then he says that  you  turned  around  and you - you walked out  the door.  Not  running  - just walking fast. Is that right?
Yeah. I just slow."

A little later in the record  of  interview  the police told  the accused  that  some people  at Ngukurr had told the police that the accused did not run  away  from  the scene but that he had driven away in the Toyota Hilux:

"KAPPLER:

NUNDHIRRIBALA: KAPPLER:

NUNDHIRRIBALA: KAPPLER:

NUNDHIRRIBALA: KAPPLER: NUNDHIRRIBALA: KAPPLER: NUNDHIRRIBALA:

KAPPLER: NUNDHIRRIBALA: KAPPLER: NUNDHIRRIBALA:

... Some people at Ngukurr have told us that you drove away in that truck - that Hilux - Toyota Hilux. Is that right?
Mmm.
And that you did skid marks when you took off. What do you say  to  that?  Is  that  true? (inaudible) I don't know - might be.
Might be.	You - and not long after you  drove off then policeman pulled you up didn't they?
Yeah.
And  they talked  to you didn1 t they?
Yeah.
What did they talk to you about?
Told   me   "you   settled   down now"  an'	I say "yeah". Then they take me at home.
Mmm.
Then I run away to the church. You ran away to the church?
Yeah. Left that club and run away to church."

A little later on the police followed this up further:

"KAPPLER:	... The police when they pulled you  up they spoke to you close up didn't they?

NUNDHIRRIBALA: KAPPLER:

NUNDHIRRIBALA: KAPPLER: NUNDHIRRIBALA: KAPPLER:

NUNDHIRRIBALA: KAPPLER: NUNDHIRRIBALA:

Yeah.
Now do you think that if you'd  been  drunk  or half shot the police would let you drive away or was you sober?
Um - I was sober.
Were you sober when you spoke to the police? Yeah.
Yeah.	You weren't drunk at all  when  you spoke to the police?
Yeah.
Where you sober? Yeah."

After that the police returned to the subject of his state of mind at  the  time of  the killing and asked why he stabbed her. The  accused  said  that  he  did  not  know because they put a curse on him. He was then asked this:

"KAPPLER:

NUNDHIRRIBALA: KAPPLER: NUNDHIRRIBALA: KAPPLER: NUNDHIRRIBALA: KAPPLER: NUNDHIRRIBALA: KAPPLER:

NUNDHIRRIBALA: KAPPLER: NUNDHIRRIBALA:

If I say to you that I think you went and stabbed that girl because she left you earlier in the - in the night and you got angry and you  thought  you'd  go  and teach her a lesson. Is that right?
Yeah.
Is that true or not true? Not.
You tell me?
Not true.
Its not true.
Mmm.
So is that a true story when you tell  me about  them two blokes give you that knife?
Yeah.
So why did you go and do it then?
I don't know. They - they curse me."

He was then asked some questions about  who  these people  were  who  put  the curse on him and what he meant by the curse, and he gave an explanation that he did not  know who the men were. He said  that  he  had  never  seen  them  before;  did  not  know why they cursed him; that they were fellows from Ngukurr; and  repeated  that they were the people who had given him the knife. At this point Sgt Grant said:

"GRANT:	I think you might be making that up Roderick. Hey?	I think you might be making that up so

NUNDHIRRIBALA:

you don't get into trouble. Is that true? Yeah. Not making anythin' - it true hey."

He was then asked some further questions about how many times he had stabbed  the girl and whether he stabbed her hard  or  not and  whether  or  not  he  wanted  to kill her. He was asked again  about  the  knife and  whether  he  stabbed  her  because  he was cursed or because he "wanted to show  her  for  the next  time".  He was  asked some further questions about these people who put the curse on him and what they looked like. He said that one  was  short  and  one was  long.  At  this point  Kappler said:

"KAPPLER:

NUNDHIRRIBALA: KAPPLER: NUNDHIRRIBALA: KAPPLER:

NUNDHIRRIBALA: KAPPLER: NUNDHIRRIBALA: GRANT: NUNDHIRRIBALA J: NUNDHIRRIBALA: KAPPLER:

NUNDHIRRIBALA: KAPPLER:

NUNDHIRRIBALA: KAPPLER:

NUNDHIRRIBALA:

Your not trying to - your not  making  this  story up about the curse  just  to  get  yourself  out  of that little bit more - trying to get yourself -  take the blame off  just  cause  you  were  cranky.  Is that the - is that true? That  your  just  making  it up about these two blokes so  that  you  don't get all the blame?
Its true. Saw it with own eye. You saw it with your own eye? Yeah.
So why do you say one minute you were cranky and you just want to show her for next time and then on the other hand your  saying  that  these  two blokes cursed  you  and  you  didn't  know what you were doing?
I got first one then.
Well its either one or the other.
That first one - that second one (inaudible). What was that?
Takin' about the two bloke. Mmm.
Was he talking about the first excuse  or  the second excuse then? Is that  what  he's  referring to?
Yeah.
Meaning?  So  which  is  the  true  story? Roderick? Did you stab that girl  because  you were angry then you felt sorry later?
Yeah.
Is that the way it happened? Cause  you  were angry because she'd left you when you were sleeping?
Yeah.

KAPPLER:

NUNDHIRRIBALA: KAPPLER: NUNDHIRRIBALA: KAPPLER:

NUNDHIRRIBALA: KAPPLER: NUNDHIRRIBALA:

and then

"KAPPLER:

NUNDHIRRIBALA: KAPPLER: NUNDHIRRIBALA: KAPPLER: NUNDHIRRIBALA: GRANT:
KAPPLER:

NUNDHIRRIBALA: NUNDHIRRIBALA J: KAPPLER: NUNDHIRRIBALA: KAPPLER:

GRANT:

NUNDHIRRIBALA: GRANT: NUNDHIRRIBALA J: GRANT:

NUNDHIRRIBALA:

And later

"KAPPLER:

NUNDHIRRIBALA: KAPPLER:

And then when you were looking around for her and you found her you said you were really wild
- is that right? Yeah.
And that's why you stabbed her. Yeah.
And you wanted her to go to hospital - is that right?
Yeah.
But you didn't want to kill her?
Yeah.	When she went to hospital I heard she died."

... So - and when you stabbed her you  stood  back and dropped that knife and walked away. Didn't you?
Yeah.
Cause you were still angry weren't you? Yeah.
Why were you angry? She ran away from me.
She been run away from you?
And that's - now - is it true or - true about these two blokes or not?
(Native language)
Translation: Him true or nothing. Its not is it?
Yeah.
You try - you made that  story up  didn't  you? Can you lift your head please? Did  you  make that story up about those two men?
Where - where did you get the knife from Roderick? Can you remember?
From that truck now. From the truck.
Hilux.
Where  abouts  in  the Hilux?	Where abouts in the Hilux was that knife? Inside or in the back? Back.	"

.. . is it right if I say that because that dead girl left you when you were sleeping.
Yeah.
That you went after her?

NUNDHIRRIBALA: KAPPLER: NUNDHIRRIBALA: KAPPLER: NUNDHIRRIBALA: KAPPLER: NUNDHIRRIBALA: KAPPLER: NUNDHIRRIBALA: KAPPLER: NUNDHIRRIBALA: NUNDHIRRIBALA J:

GRANT: KAPPLER:
NUNDHIRRIBALA: GRANT:

NUNDHIRRIBALA:

Yeah.
And that's what made you wild?
Yeah.
Is she suppose to do what you tell her?
Yeah.
Cause she's your wife hey?
Yeah.
Do you think it was right or wrong to stab her? Right.
Why?
I don't know (inaudible).
That - that - ah - that dead girl got a lot of boyfriend.
Lot of boyfriends? Got boyfriends?
At Ngukurr.
At Ngukurr. Is it still the right thing to stab her though? Is that the right thing or the wrong thing?
Don't know."

Notwithstanding guideline 4 m Anunga (supra) concermng the undesirability of anything in the nature of cross-examination, it was submitted by Mr Cato that the mere fact that the accused had been cross-examined did not necessarily mean  that the accused's account was not voluntary. In Van Der Meer and Others  v R (1988)  82 A.L.R. 10, the majority of the High Court, Wilson, Dawson  and Toohey  J.J., said, at pages 25 - 26:

"The aggressive style of the interrogations was undesirable and in other circumstances may have lead a trial judge in the exercise of his discretion to exclude evidence of the interviews on the basis that they were unfair. However, as we shall see, in the present case nothing in substance of an incriminating kind resulted from the interrogations conducted in this way."

It is clear that the majority of the High Court regarded the methods used  in  that case, which amounted to cross-examination of the accused, as not going to the question of voluntariness but going to the question of the exercising of the Court's discretion. Mr  Cato also  referred  me to the case  of  R  v  Wilson  [1981]  1  NZLR
316. In that case a young Maori who had denied being responsible for a fairly horrific   homicide   was   subjected   to   a  form   of   interrogation   which involved

cross-examination.	Cooke J, who delivered the judgement of the Court of  Appeal said, at page 324:

"The explanatory notes to rule (3) make it clear that after a person in custody has been cautioned he should not be subjected to cross-examination, although questions to clear up ambiguities in any statement he has made are permissible. Whether  the  questioning amounts to cross-examination can be  a  matter  of  degree,  and  again the restriction is not to be strictly  applied  to  the  extent  of  handicapping the police  unreasonably  in  their enquiries.  But here one is driven to regard the whole interview from  2.45pm  when  the statement made by the suspect in custody was first challenged and continuing after cautions at about 4.45, 5 and 5.30pm  until  8.11pm when he confessed as in truth and substance a cross-examination....

"We do not overlook that from  one point of  view  the influencing  of  the appellant to speak could be called a very effective piece of police work. Nor that this  was  a  brutal  and  shocking  killing  of  a defenceless elderly woman in her own home.  But it is fundamental  in the New Zealand system of justice that confessions obtained by overbearing the will of a person in custody by tactics amounting to compulsion will not be received  in  evidence.  Whether  a  case  is  of that kind is a question of fact and degree "

Mr Cato sought to distinguish the authority of The Queen  v  Bankowski  (1971-1972) 18 FLR 179, a decision of Smithers J  in  the  Supreme  Court  of  the  Australian Capital Territory. In that case His Honour said, at page 182:

"It is quite improper  to cross-examine  an  accused  person  in  custody. If the statements of the accused are flung back in his teeth with expressions of disbelief  that  is  an  improper  form  of cross-examination. see Williams J. in Smith v The Queen (1956)  97  CLR 100 at page 130. If his statements are  refuted  by an  intimation  that some witness had  stated  to the contrary,  this is an improper  form of cross-examination. Whether or not it be regarded  as cross-examination the statement to the accused that such and such witnesses say this or  that against  the accused  in  a  material  particular is an independent impropriety. See Smith v. The Queen (supra) per Williams J., at p129. See also R. v. Brown and Bruce (1931) 23 Cr.App.R.56. If it  is  done  to  induce  a  confession,  as  it  obviously was in this case, it amounts to pressure on the part of a person in authority and is calculated to deprive  any  supervening  confession  of the quality of voluntariness."

I consider that it is patent that the police adopted quite different tactics during  the second part of the interview with the accused, designed  to  force  the  accused  to  depart from his earlier assertions that he had  been  half  drunk  at  the  time;  had  carried out the killing because of a curse that had been put upon him  by  other aboriginal men; that  he did  not  know what  he was doing and  that  he did  not intend to kill. In  cross-examination  of  Detective  Kappler,  the following  question  was  put to him (Tr.p 106):

"What it amounts to,  in  many  instances,  is contradicting  the accused in the account that he has given  you?---That  was  the  purpose  of putting those suggestions to him, Mr Davies, yes.

And encouraging him to comment more, to drag more out  of  him?--­ No, I wouldn't say to drag more out of  him,  as  you  put  it.  It's  certainly putting discrepancies as offered by other witnesses to an accused person and  offering  then  the  opportunity  to  comment, whether one way or another"

I accept Mr Cato's submission that that mere  fact  that  a  cross-examination  occurs does not necessarily mean  that  the accused's  will was overborne.  I accept  also  that the mere fact that cross-examination has occurred  will  not always  result  in  rejection of any part of the record of interview even in the exercise of a judicial discretion. However, I am satisfied that what occurred here was that the accused's will was overborne by the nature of the cross-examination to which  he was subjected  and  that so much of the record of interview that was  recorded  on  the  fourth  audio  tape (exhibit p7(4)) is involuntary and inadmissible. If I am wrong in  that conclusion  I would nevertheless exclude that portion  of  interview  in  the  exercise  of  my discretion. The form of cross-examination in this case on at least four occasions produced expressions of disbelief by the police. As the Court of Criminal Appeal (Victoria) said in R. v. Pritchard (1991) 1 V.R. 84 at 93:

"Cross-examination as such, though forbidden by the Chief Commissioner's Standing Orders, may  often  not lead  to  the exclusion of the answers it produces. But cross-examining questions that carry scornful overtones of disbelief are altogether another matter. It  is because of the real possibility of exposure to questions of such a damaging nature that an accused  will  choose  to  give  unsworn evidence and thus exempt himself from cross-examination. The right

to do so will, or may be, rendered nugatory if the jury is allowed to view a reproduction of just such an examination conducted at an earlier date by a skilled police questioner. 11

In the Northern Territory the accused does not even have the right to make an unsworn statement. Thus his position is rendered even more tenuous  in  that  the jury will be able to view on the video tape a skilful cross-examination of him. His choice in the Northern Territory is either to give evidence and subject himself to cross-examination or to remain silent and face the consequences.

Reference should also be made to the decision of the Full Court of the Supreme Court of South Australia in The Queen v. Leak [1969] SASR 172 at 173, 174:

"... In our view a witness ought not to be asked whether another witness is telling lies or has invented something. Any witness, of course, can be asked if what another witness has said is true. He can be asked if he knows of any reason why the other witness should be hostile to him or should tell a false story about him. But if  he says  that what the other witness has said is not true, he should  not  be asked to enter into that witness's mind and say whether he thinks the inaccuracy is due to invention, malice, mistake or any  other  cause. To do so is to ask him for opinion evidence and in our view  the normal objections to that type of evidence apply. It is for the jury to decide which witness is telling the truth and how far what they think  to be an inaccuracy on the part of any witness is deliberate or otherwise and what effect such inaccuracy has on the rest of the witness's testimony. No attempt should be made by  the cross-examiner to drive any witness, least of all the accused, into saying  that any other witness,  least of all a detective,  is a liar.11

That passage has been applied by the Full Court in South Australia in relation to providing a guide for the interrogation of suspects: See The Queen v. Lacey (1982) 29 SASR 525 at 537. Kappler's question to the accused asking him whether he thought that the police would have allowed him to drive away if he had been drunk or half shot was quite improper. The accused was forced  either  to admit  that  he was sober or to imply that the police were not carrying out their duty.

As to the manner in which the statement of John Thompson was put to the accused, on a number of occasions the police read or put to the accused in one question a number of propositions which were apparently taken from the statement of John Thompson and then asked the accused if that was true. It is  not  always  clear whether the accused was agreeing with the last of the propositions or with all of them. On one occasion when the accused denied part of Thompson's statement, the police did not accept his denial:

"KAPPLER:

NUNDHIRRIBALA: KAPPLER: NUNDHIRRIBALA:

And that you came in really close  and her hands were on his shoulders from behind. Would that be right?
No.
No that's not right or you can't remember? Can't remember."

Mr Davies submitted that I ought to reject the whole of the record of interview  in  the exercise of my discretion. The matters which he puts in support  of  his submission may be summarized as follows:-

The accused did not understand fully the nature of the caution which had  been administered to him. I have already discussed this submission.

The manner in which the statement of Mr Thompson was put to the accused was unfair. I have already dealt with this submission in part.

Leading questions were put to the accused on a number of occasions throughout the whole record of interview.

The prisoner's friend provided explanations on behalf of the accused which were not proven to be the subject of anything which the accused had said.

There were either inaccurate translations or no translations made by the prisoner's friend of various things which the accused had said.

The police had attempted on a number of occasions to get the accused to acknowledge that the knife which they had  in  their  possession  was  the relevant knife. This was oppressive.

The number of passages which should be excluded in the exercise of my discretion would so interrupt the natural flow of the record of interview as to create prejudice to the accused.

There were a number of matters which the accused had  raised  that  had  not been properly explored by the police or alternatively, if explored,  were contained in so much of the record of interview as had been shown to be involuntary, and therefore  the  accused's  explanations  as  to  these  matters were not able to be put before the jury.

As to the first video tape which is  represented  in  the  transcript  (by  exhibits  P5(1) and P5(2)), it is true  that  the  transcript  reveals  that  the  prisoner's  friend  was  the first to suggest that the knife was  given  to  the accused  by  the two  aboriginal  men and it was he also who first  suggested  that  they  cursed  the  accused.  But  on  the other hand it is also clear that the accused himself was saying  quite clearly  and  at  times in his own language that he was given the knife by these two men to kill the deceased girl and that they had put  a  curse  on  him.  The  question  is  whether  it would be unfair to the accused to admit so  much  of  the  record  of  interview  as  relates to those passages. Having considered that matter  I  have  come  to  the conclusion that those passages ought to remain. It is true  that  these  suggestions emanate initially from the accused's brother, but the police did  not  know  that,  and there was nothing unfair to the accused in the police following those matters up, particularly as the accused himself ultimately adopted them. It is not as though  the police had put the words into the accused's mouth. Furthermore it was the accused himself who first mentioned "the two black fellows".

The only other matter that relates to the first two sections of the record of  interview Exts P5(1) and P5(2), is a criticism of a question put right at the end of Ext P5(2)

where Kappler said to the accused that he had said previously  that  he  was  "really wild" when in fact the accused had only said he was "wild". I do not think that this mis-statement is of any real significance. Viewed  as a whole it is my view  that so  much of the record of interview as was conducted before lunchtime ought not  be rejected in the exercise of my  discretion.  Even  if I  were  to reject  the whole of  the rest of the record of interview I do not see  that  there  is  anything  unfair  to  the accused in admitting the first part of the interview. It is true  that  the  accused  was asked a number of  times  where  he got  the knife from,  but  this only occurred  twice  in the first part of the record of interview, and I do  not  think  that  the  questions relating to the knife were at that stage in any  way  unfair  or oppressive.  There are  some inaccuracies in translation in exhibit P5(2)  by  the  prisoner's  friend.  For example, at page 7 of Exhibit P5(2) it was  the accused's  brother  who  first said  that  the accused had stabbed the deceased with  the  knife and  this appears  to  have  been not something which arose from anything that the  accused  himself  had  previously said. What the accused had  said  up until  then  is that  he had  been  given  the knife  and told to go and stab the deceased.  However  the  accused  himself  later  made  it clear that he did stab the deceased on at  least  one  occasion.  I  think  with  minor editing there is no reason why exhibit P5(1) and (2) ought to be excluded  in  the exercise in any discretion as to fairness. As to public policy grounds, I can find no  reason why that part of the record of interview ought not be admitted.

As  to exhibit P7(3)  I consider  that  the record  of  interview  from  approximately page
10.4 onwards should be excluded in  the exercise of  my discretion  primarily  because of the difficulties created by the manner in which  the statement  of  John  Thompson was put to the accused. I do not think it  would  be  fair  to  the  accused  to  admit against him his admissions in  relation  to that statement  bearing  in  mind  the number of times that multiple propositions were put to him followed by the question "Is that right?" On one occasion the accused accepted a proposition put to him about Mr Thompson's statement with the words "Yeah  but" and  the police did  not permit  him  to explain whatever his qualification  may  have  been.  I  note  also  that  the form  of the questioning relating to the Thompson statement was in quite a leading form and often  resulted  in  monosyllabic   "yeah"  answers  which  in  the  circumstances   of this

interview are quite worthless. In my opi)).ion that part of the record of interview contained in exhibit P7(3) from page 10 onwards when Kappler introduces John Thompson's statement to the accused,  to the end  of  Ext  P7(3),  ought  to be excluded in the exercise of my discretion  on  the ground  that it would  be unfair  to the accused to admit it in evidence against him. The remaining part of the record  of  interview  needs to be edited to remove certain of the statements made by the prisoner's friend which were not proven to be the result  of  a  translation  of  anything  that  had  been said by the accused and which had not later been adopted by him. There are short passages on page 5, 6 and 7 and two short passages on page 9  of  Ext P7(3)  that fall into this category. Fortunately  those  passages  can  be  edited  without  altering  the flow of the record of interview and without leaving  out anything of  significance said  by the accused.

A submission was made by Mr Davies  that  the  accused's  choice  of  a  prisoner's friend was not an informed choice because the role of the prisoner's  friend  had  not been explained to the accused  in a  proper  manner  by  the police:  see  my  comments in R v Weetra (1993-1994) 93 NTR 8 at pages 11 to 12. Those comments were not available to the police at the time of this record of interview, as I handed  down judgment in that matter nearly a month after  the record  of  interview  in  this  matter had been completed. I am unable to accept the submission that there  was anything unfair in the selection of the  prisoner's  friend  which  would  require  me  to  exclude the whole of the record of interview in the exercise of my  discretion.  The person chosen to act as prisoner's friend had had  his role explained  to him  quite thoroughly  by the police before the record  of  interview  commenced.  He certainly  knew  what was expected of him and throughout  the  record  of  interview  appeared  to  be  alert and participated on a number of occasions by acting as interpreter. He was also the accused's brother, a man in his early thirties with a reasonably good command of English, and he also naturally spoke the accused's language. It is clear that he  understood that the accused had  a  right  to  speak  or  remain  silent.  The  only criticism that can be directed to the prisoner's friend in my  view  is  that  it  appears from the transcript that on occasions he appears to have said things which are  not proven to have been said by the accused. It may be that the accused did say these

things because there are times when it appears that the accused may have said something which was not audible and therefore not able to be translated. As the prisoner's friend did not give evidence I do not think it would be right to admit, as against the accused, the statements made by the friend which are not shown to have been a translation of anything the accused said. I therefore  think,  provided  that these passages are edited, there is no reason otherwise why the  balance  of  the record of interview ought not be admitted.

I have considered Mr Davies' submission that there might be prejudice to the  accused in admitting only portion of the record  of interview.  Obviously  where  there are going to be passages edited this will become evident to the jury.  I  think that any prejudice to the accused can be overcome by a suitable direction from myself. I propose  to tell the jury  that it is my function  to rule on  the admissibility of evidence and that I have caused passages to be edited from the  record  of interview where the prisoner's friend has made statements which are not proven  to be accurate translations of what the accused said. I will also tell the jury that the record of interview comes to an abrupt halt because I have found that the record of interview from that point on ought not be admitted in evidence. The jury  will  be  told that they are to decide the case solely on the evidence before them and they are not to speculate. I have no doubt that the Darwin juries exercise a great deal of commonsense and follow directions of this kind and I have no reason to believe that the accused would be in any way prejudiced by this course.

I tum now to consider whether the Crown ought to be permitted  to  lead  the evidence of Mr Hall and the evidence of Mr Thompson concerning the incident or incidents which occurred on the occasion of the smoking of old Wilton Huddleston' s home some weeks before.

Mr Cato for the Crown submitted that the evidence was admissible as it tended to show that at that time shortly before the deceased's death the accused and the deceased's marriage, which was of short duration, had already reached a strained rather than a happy relationship. Mr Cato relied heavily upon the decision of the

High Court  in Wilson  v The Queen  (1970) 123 CLR  334.  In that case the accused  had been tried for the murder of  his wife who had  died of gun shot  wounds  received by her while she was driving a tractor during the hours of day  on  a  property  in Victoria which the accused was managing.  The  accused  had  borrowed  a  shotgun from a neighbour  for the purposes  of  shooting  rabbits.  He claimed  that  on  the day of his wife's death he had placed a rifle on top of a load  of  hay  and  set  the safety catch on the gun by pushing it forward. In fact,  this action  released  the safety catch  but the accused denied that  he  knew  this.  He claimed  that  he  had  not  discharged the gun and that it had been discharged accidentally perhaps when a dog had jumped upon the load of hay.  There  were no eye witnesses  present.  The contest  at the trial was as to whether the accused, who admitted to being present at  the time,  shot  his  wife in the back of the head or whether the gun placed  on  the  load  of  hay  accidentally discharged at a time when it was pointing towards the back of her head.  The Crown had led evidence by witnesses who had overheard  an argument  between  the accused and the deceased. On one occasion the deceased  had  said  during  the course of this argument "I only know you want to kill me for my money" and  on another occasion a witness said that the accused, in the course of a quarrel with the deceased in the presence of others, pushed  her  to  the  ground  for  no  other  reason than that she had not desisted from rubbing the duco of their motor car when  he had  told her to stop doing so. Whilst on the ground  the  deceased,  according  to  this witness, had said "I know you  want  to  kill  me,  why  don't  you  get  it  over  with?" On the first occasion the witness did not hear any reply  made by the accused  and on  the second occasion the witness said that the accused made no reply.

Barwick CJ said, at page 337:

"It is quite apparent  that  the  nature  of  the  current  relationship between the applicant and· his wife was relevant to the question to be decided by the jury. Evidence  of  a  close  affectionate  relationship could properly have been used by the jury to incline against the conclusion, which might otherwise have been drawn from the circumstances, that the applicant  killed  his  wife.  Equally,  evidence that there had developed a mutual enmity could be used to induce the conclusion that he had killed his wife and that  his  story  of  an accidental shooting lacked credibility."

Menzies J, with whom McTiernarv and Walsh JJ agreed, at  p.343  referred  to  a passage in the judgment of Kennedy J in  R  v  Bond  [1906] 2 KB 389  at page 401  with approval:

"... The relations of the  murdered  or injured  man  to his assailant,  so far as they may reasonably be treated as explanatory of the conduct  of the accused as charged in the indictment,  are  properly  admitted  to proof as integral parts of  the history  of  the alleged  crime  for  which the accused is on his trial."

Menzies J said at page 344:

"It seems to me that here, as so often happens, an attempt has been made to reduce the law of evidence - which rests fundamentally upon the requirement of relevancy, i.e. having a bearing upon the matter in issue - to a set of artificial rules remote from reality and unsupported by reason. Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between  the deceased and the accused. Were they an ordinary  married  couple with a good relationship despite differences and disagreements,  or was their relationship one of enmity and distrust? It seems to me that nothing spoke more eloquently of the bitter relationship between them than that the wife, in the course of a quarrel, should charge her husband with the desire to kill her. The evidence is admissible not because the wife's statements were causally connected with her death but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of mischance. To shut the jury off from any event throwing light upon a relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and woman who were husband  and  wife. Accordingly, in my opinion the evidence in question was properly admitted because it was pertinent to the issues which the jury had to decide."

Owen J at page 346 said:

"  I  have  no  doubt  that  evidence  of  the  relationship  between  the wife and the applicant was  relevant  in  considering  whether  the former's death was due, as the applicant claimed, to an accidental discharge of the gun or whether, as  the Crown  alleged,  it  was  due to his deliberate act."

Mr Cato suggested that the incident related  by Mr Hall and by  Mr  Cliff Thompson  had a bearing on whether or not the accused in  this case deliberately  killed  his  de facto wife.

In R. v. Iuliano [1971] VR 412 the Full Court of the Supreme Court of Victoria
(Winneke, CJ; Little and Gowans JJ) said at page 416:

"... It is not necessary that any particular incident related in evidence should, regarded singly, and of its own  force,  establish  a  relationship of enmity or distrust. It is sufficient if the incident related makes a contribution which is not insignificant or unsubstantial to a climate of antipathy. Of course, if the incident is isolated and at a considerable distance of time before the death, it may afford no evidence at all of relations between the parties at the  time  of  the  death  which  could have any bearing on  motive or intention.  If  it  is  not too  remote,  and its existence along with other incidents or circumstances related in evidence tends to establish a climate of the kind referred  to,  the evidence of the incident is relevant."

In R v Mills [1986] 1  Qd.R.77  McPherson  J  with  whom  Andrews  SPJ agreed  said at page 85:

"A 'relationship' between two persons is ordinarily capable of being established only by evidence of  a  series  of  acts  between  those persons, or at least of some act other than the particular act in issue sought to be proved. Where that act is or forms an element  in  the offence charged, the existence of a relationship is admissible only if relevant as tending to proof of the act in question".

In Maurice Peter Frawley (1993)  69  A.Crim.R.  208,  at  219,  Gleeson  CJ,  with whom Carruthers J agreed, referred  to  this  passage  from  Mills  (supra)  with approval. At page 220 Gleeson CJ said:

"One of the  difficulties  affecting  consideration  of  relationship evidence is that the concept of relationship  is vague.  In  a particular case, such as the present, it may be necessary to identify with more precision what is in  question.  Frequent  and  serious  quarrelling between a couple, of a kind that goes beyond what Menzies J referred

to in Wilson as ordinary difficulties  and  disagreements,  may  be relevant to whether one intended to kill the other,  or  to  some  other issue in a criminal trial".

Later His Honour said at pages 222-223:

"In my view the preferable approach in a  case such  as the present  is  not to consider the matter in  terms  of  generality  as  to  'relationship' but, rather, to consider whether the evidence in question is direct evidence of any fact relevant to a fact in issue."

Mr Davies submitted that the evidence of Mr Hall was inadmissible.  He pointed  out that it was evidence of a single occasion some one or two months prior to death; it was an isolated incident and therefore did not bear upon the true nature of the relationship of the deceased and the accused at the time of death. Alternatively, he submitted that the evidence ought to be excluded in the exercise of my discretion because its prejudicial effect outweighed its probative value.

Mr Davies was particularly critical  of  Mr  Hall's  evidence.  In  his evidence-in-chief Mr Hall had said that he had heard screaming coming from  Mrs Daniels'  home and then saw the deceased run from  Mrs  Daniels'  place  to  Mr  Thompson's  place  over the road.  Later  he saw  the accused  come from  the back of  Mrs  Daniels'  house with a black handled  knife in  his hand.  He said that the handle was carried  on  the inside  of the left hand with the blade pointed  upwards.  He said  that  he saw  the accused's face which looked angry. He  saw  the  accused  walk  across  to  Cliff  Thompson's place where he had a struggle with Thompson whilst the deceased stood behind Thompson on the front verandah.

He was not able to overhear any  of  the conversation.  In  cross-examination  he said that Mr Thompson was pushing the accused away  with  his  hands  and  the  accused was pushing back with both hands and at that time he did not see anything in the accused's hands. In cross-examination it was put to him as follows: (Tr.p151)

"And what I would suggest to you, Mr  Hall,  is  that  it  is fair  to  say that you didn't see him carrying a knife?---Well, I seen something. I
- it could've been a knife. I don't know. It was something.

You saw something in his?---Hand

---left hand?---Yeah.

Okay. Now did you see anything at all in that dead girl's hand?--­
No."

And later in re-examination he was asked this (Tr.p154):

"Are you able to say what he had it in his hand?---Well, looked like a knife.
When Roderick went across the road and struggled with Cliff Thompson---?---And the dead girl was standing beside - behind Cliff.

Did you see where the dead girl went after that?---Yes,  she went  back  to Cherry's place  and  from  that  I  didn't  know.  I  didn't  concentrate on that.

And at pages 153 to 154 of the transcript he said this in re-examination:

"Are you able to say whether  you  saw  Roderick  with anything?---Well, he had something stay in his hands.

Are you able to say what he had in his hand?---Well,  looked  like a knife.

Mr Thompson's evidence was quite different. He said that as he was sitting outside of his place on the lawn, he heard noises in the kitchen of his house. He walked in. He stood at the front door of the verandah and a rubbish bin flew out the door and  as he was standing there the accused came out of the house, that is to say, out of Thompson's house. He said that he went up to the accused and asked him what he was doing at his place and that he didn't reply. Somebody shouted behind his back that the accused had a knife but he didn't see any knife although he looked at the accused's hands. He grabbed the accused and asked the accused, 'what are you doing?' and then the accused shook him off and ran straight across to Cherry Daniels' place on the other side of the road. He said that he did not  see  the  deceased at all and did not talk to her that day.

I am unable to see how Mr Thompson's evidence  shows  anything  about  a relationship good or otherwise concerning the deceased and the accused. It is not shown that the incident of which he is speaking  is  the same incident  of  which  Mr Hall was speaking, although it  happened  on  the same day,  or  that  the presence  of the accused at Mr Thompson's house had anything to do with the deceased.

As to the evidence of Mr Hall, I think that this evidence is  far  too  slender  a  basis upon which to draw an inference of a  relevant  bad  relationship  between  the  deceased and the accused which throws any light upon the issues in this case. Even assuming what Mr Hall saw in the accused's hand was a knife, there was nothing to suggest that he had the knife in  his hand  with  the purpose of  using  it  or threatening to use it against the deceased. The accused may have had a  knife in his hand  for a quite innocent purpose bearing in mind his  hunting  life-style, -  but  in  any  event there is nothing to suggest that  he had  attempted  to use  the knife or  threatened  to use the knife on the occasion in  question  against  the deceased. It  appears  that  he may have been angry with the deceased and that there had been something of a row which lead the deceased to run out of the house, and  that  the accused  had  gone over to Mr Thompson's house where the deceased had gone, but it appears that he left peacefully after Mr Thompson had pushed him away. I do not think that this single isolated incident is sufficient to throw any relevant  light  upon  the  accused's intentions at the time of the deceased's death and accordingly in my view it is inadmissible.

I turn now to consider the evidence of Charmaine  Ashley,  Mrs  Cherry  Daniels and Mr Tony Wurramara, each of whom gave evidence of conversations  that  they  had with the deceased shortly before her death on  the  night  in  question. The  Crown seeks to tender this evidence, although it is hearsay, as  evidence  of  the deceased's state of mind. The Crown says that this evidence shows that the deceased  was in a  state of fear from the accused.

There is no doubt that evidence which shows the state of  mind  of  the deceased  may be admissible against the accused. Evidence of this kind has been admitted on a

number of previous occasions. In Walton v The Queen (1988-1989) 166 CLR 283, the High Court held that evidence that the deceased had told a number of witnesses that she intended to go to the middle of the town centre on the night in question and there meet the appellant (who was charged with her murder) provided a foundation for the inference that she did go to the town centre and met the appellant there, and that accordingly the evidence was admissible notwithstanding that it was hearsay. Similarly in R v Matthews (1992) 58 SASR 19, the Full  Court  of  the Supreme Court of South Australia held that statements made by the victim  (in a case where the accused was convicted of her rape and murder) to other witnesses to the effect that she was in fear of and did not wish to see the appellant  were  admissible probably as original evidence to prove her state of mind although not to prove the truth of the facts contained in the statements. It was held that the evidence was relevant to the question of whether the deceased consented to intercourse  and whether the deceased permitted the deceased into her home and received him in the manner suggested by the accused.

Bolien J said at pages 33-34:

"The law of evidence is there to ensure that relevant evidence gets before the court.  Evidence showing  the relationship and  the state of it between victim and culprit is relevant in a charge of murder (see  also R v Hissey (1973) 6 SASR 280 at 288-289). Evidence which "sounds" rather like hearsay at first blush may be called to show that relationship. It must not, or often must not, be used  for  other purposes. As the Solicitor-General said of evidence of statements made by the deceased to others: "The critical thing is how the statement was used." Here evidence of the utterances of the deceased was used to prove fear and unwillingness to meet the appellant. That state of mind at least tendered to negate the truthfulness of the accused's story."

Similarly in R v Baker [1989] 1 NZLR 738, the Court of Appeal of New Zealand held that statements made by the deceased during a period of up to four  weeks before her death including one made on the day of her death which indicated her hostile attitude to the accused, her fear of him, and her physical manifestation of

that fear, were admissible in evidence against the accused who was charged with her murder and rape. The accused had on that occasion claimed that a  rifle that was fitted with a silencer and found on the floor of the bedroom in which the deceased had been killed was there because the deceased had telephoned the accused the evening before and had asked him to come round in the morning  to shoot  some stray cats. The accused stated that when he came at about 7am with the rifle, the deceased, who was his wife, requested intercourse and asked to be tied to the bed;  but after these events when she had been untied, she picked up the rifle, shot him  and then shot herself. Cooke Pat page 741, said:

" when a person's state of mind at a given time is in issue his contemporaneous declaration is admissible as evidence, albeit not necessarily conclusive, of that state of mind. This must apply to a person's knowledge, understanding, intention  or  feelings.  With regard to the second of the statements of principle just quoted,  there  is obviously no difficulty in treating relevance to an issue as a matter of degree. With regard to the first, however, the tests "directly" and "direct and immediate" seem, with great respect, less easy to apply and, if applied literally, might perhaps exclude a good deal  of evidence which in common sense and justice most people would think ought to be admitted.

Thus in the present case it will be in issue at the trial whether the deceased telephoned her husband and asked him to come round with a firearm, but in the natural and ordinary use of language I have reservations about whether her expressed fear of him earlier that day and in the proceeding weeks is directly or immediately  relevant  to that issue. Nevertheless it is of such cogent indirect bearing on that issue that in my opinion it ought clearly to be admitted."

Mr Davies on behalf of the accused submitted that the evidence was inadmissible.  He submitted it was not relevant to any fact in issue in the trial. He submitted that formal admissions would be made that it was indeed the accused  who on  the night in question brought about the death of the victim by the use of  a  knife.  Later, formal admissions to this effect were made pursuant to the Criminal Code. Accordingly he submitted that the alleged statements by the deceased did not go to

any matter in issue between the Crown and the accused. He pointed out that in Frawley (supra) Gleeson CJ said, at page 220:

"If one party to a relationship is accused of murdering the other, admissible evidence of the accused's state of mind may well be relevant. It is less likely that evidence of the victim's state of  mind will be relevant, although, as the authorities cited above show, it may be relevant, depending on the issues in the case "

He submitted also that there was no sufficient factual background to judge whether the particular statements made by the deceased truly showed her state of  mind or that her state of mind was relevant to any fact in issue  in  the trial.  In  further support of this submission, he relied upon certain observations of Gleeson CJ in Frawley (supra) at pages 222 and 223. It was submitted that without knowing what the reason or the background may have been for the deceased to have expressed herself in the way she did, the deceased's statements did not show that she was necessarily in a state of fear.

In my view the evidence of these witnesses is admissible. It would be open  to the jury to infer from the statements that the deceased was in a state of fear of the accused. That evidence is relevant to rebut any suggestion of an accidental  killing; in other words it is relevant to the question of the accused's intent; and it may also  be relevant to rebut the defence of provocation.

Mr Davies for the accused submitted that even if it were strictly admissible it ought to be rejected in the exercise of my discretion on the basis that its probative value was outweighed by its prejudicial effect. His submission was that the evidence was of trivial weight because the evidence of Charmaine Ashley and Tony Wurramara was unreliable; and he pointed to a number of matters which,  I  have no doubt,  a jury would be justified in taking into account as leading to the conclusion that the evidence of these witnesses ought to be rejected. However in my opinion those matters are entirely jury matters and the question of the probative value of the evidence is not to be determined by reference to such considerations. Except, perhaps, in special categories of cases of which this is not one, a trial judge does

not, in my view, have a discretion to reject evidence which is otherwise admissible because of alleged unreliability. If such a general discretion existed, it would be inconsistent with  the duty of a trial judge to leave any evidence to the jury capable  of supporting a conviction even if the evidence is inherently  weak:  see Doney  v The Queen (1990-1991) 171 CLR 207. In my opinion there is a distinction to be made between evidence which is probative, that is to say relevant  to a fact in issue  in the case, and the weight to be given to a particular piece of evidence by a particular witness, based on matters of credit. In none of the authorities which deal with the discretion to exclude evidence because its probative value is  small compared with its prejudicial effect is any reference made to the judge  being  entitled to test the probative weight of the evidence by reference to matters going to the credit of witnesses: see for example, James Hasler (Court of Criminal Appeal Qld) (1985-1986) 21 A Crim.R. 376 where the cases dealing with the discretion to exclude admissible evidence are reviewed. In my view one has to begin, when examining the question of the probative value of the evidence, by assuming the evidence will be accepted by the jury, or at least is capable of being accepted by the jury, as true and accurate. Approaching the matter in this way, it seems to me that  the evidence has considerable probative value which is not outweighed by any prejudicial effect which it may have upon the accused's right to a fair trial.

Accordingly, the challenged evidence of Charmaine Ashley, Tony Wurramara and Mrs Cherry Daniels as to conversations they had with the deceased on the night of her death will be admitted.