IN THE SUPREME COURT

OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

NO. 113 of 1993

BETWEEN:

THE QUEEN

Plaintiff

AND

LOUIE RILEY

Defendant

CORAM: MILDREN J

REASONS FOR DECISION

(Delivered  23 June 1994)

This is an application to rule on  the  admissibility  of  a  confessional  statement recorded on video tape and made to the police on 13 March 1993. After  hearing evidence and submissions, and viewing the video  tape  of  the interview,  I  held  that the statement was not voluntary and thus inadmissible, and that I would publish my reasons at a later time. I do so now.

The accused, of Aboriginal descent, was charged with unlawfully assaulting Ruth Benson with intent to have carnal knowledge of her, contrary to s.192(1) of the Criminal Code. The charge included one circumstance of aggravation in that the accused thereby had carnal knowledge of Ruth Benson (s.192(4)).

The facts which the Crown intended to prove involved an incident on the evening of 12 March 1993 which occurred a short distance from the Borroloola Hotel. Ruth Benson had been drinking  at the Middle  Bar of  the hotel.  At about 10.30 p.m.  Ruth left the grounds of the hotel.  She was  very  intoxicated.  About  30  metres from the hotel Ruth was assaulted and allegedly  raped.  On  28 February  1994, Jacob Riley pleaded guilty to the same charge and circumstance of aggravation with which the accused was charged. The accused, Louie Riley, was alleged to have assaulted Ruth Benson either prior to or following or both before and after his non consensual act of intercourse with her. Jacob Riley was alleged to have had non consensual intercourse with Ruth Benson following the assault and the act of sexual intercourse by Louie Riley. After performing the sexual act  upon Ruth Benson, Jacob Riley escorted Ruth Benson back to Yanyula Camp, otherwise known as Splinter Woody's camp, where Ruth resided. Shortly after arriving back at camp, Ruth claimed she had been· raped and punched and kicked by Louie and  Jacob Riley. As a result of the claims by Ruth the police were notified.

The accused underwent four  separate  interviews.  The first  occurred  at 1.41 p.m. on 13 March 1993 when he was briefly interviewed, then arrested and taken into custody. At 7.40 that same day he was again interviewed briefly when it was

ascertained that the accused wanted a friend, Roy  Hammer,  to  be  present  when  he was to be further interviewed. The third interview was conducted at 9.37pm on  13 March  1993.  A  fourth  interview  occurred  at  8.54  a.m.  on  15  March  1993.  It  is the third interview which was challenged.

Mr Algy, for the accused, submitted that the record of interview was inadmissible because it was not given voluntarily by the accused. Because of the circumstances generally, and the manner in which the interview  was  conducted  producing  the answers given, he also submitted that it would  be unfair  to  the accused  to  admit  it into evidence and that I should exercise my discretion to exclude it.

As I found the interview was not given  voluntarily,  there  is  no  necessity  to discuss the question of my discretion.

Mr Algy submitted that in relation to the  voluntariness  of  the  statement,  the customary caution was never properly administered to the accused, resulting in the accused demonstrating that he at no stage understood his right to remain  silent.  Mr Algy further submitted that even if I found that in  effect  the accused  did understand  the caution, then the presence and the  involvement  in  the  questioning  of  Roy Hammer destroyed the effect of the caution. Mr Algy submitted that Mr Hammer's involvement and presence constituted a positive inducement upon the  accused  to answer the questions put to him.

Mr Algy submitted _that by employing the assistance of Mr Hammer, the police

were in effect employing Mr Hammer  as their agent and  that he was not present  for  the benefit  of  the accused.  The effect  was  that  Mr  Hammer  instructed  the accused to tell the police what happened rather than  act  in  the  true  role  of  a  prisoner's  friend. Mr Algy submitted that Mr Hammer, a person tribally in authority over the accused, was a person in authority to the accused  and  from  this position  he induced  the accused to answer the police questions.

The interview was conducted mainly by Senior Constable James Brown. The accompanying police officer was Detective Senior Constable Charles Farmer, who during the latter stage of the interview also questioned the accused.

The interview commenced with the police officers identifying themselves  and requesting Mr Hammer to identify himself. Neither Constable Brown nor Constable Farmer suggested at this stage that Mr Hammer was there in the  capacity  of  a prisoner's friend. There  was  no evidence as  to how  the police invited  Roy  Hammer to attend the interview.

Mr Hammer stated at the outset of the interview that he was the President of the Borroloola Community Council and was the accused's grandfather.

The interview then proceeded as follows:

BROWN:

RILEY:

Grandfather. Could you state your full name, Louie?

.(no answer.)

BROWN: RILEY: BROWN: RILEY: BROWN:

Tell me your full name, please. (no answer - long pause.)
What - what - what do people call you? What's your name? Louie.
Louie  -  what's  your  other name,  Louie?	What's your family

name?

RILEY:	(no answer - long pause.) ROY HAMMER:	Louie Riley he talk.
At this stage Mr Hammer leaned across from his chair and physically nudged the accused in the shoulder area.
The interview continued:

BROWN: RILEY: HAMMER: BROWN: RILEY:

Is that right, Louie - Louie Riley? Mmm.
Speak up.

You've got to speak up hey. Mmm.

Constable Brown then proceeded to ask  the accused  his age,  date of  birth and  place of birth, which elicited monosyllabic answers.
The interview continued:

BROWN: RILEY: HAMMER: RILEY: BROWN:

Where do - where do you normally live? Where do you live?  (A long pause, followed by an inaudible answer.)
Roper.

At Roper.

At Roper, hey?

RILEY: BROWN: HAMMER: RILEY:

Yeah.

At Roper - at Ngukurr itself? Ngukurr, yeah.
(A long pause, followed by) "Mmm".

Constable Brown continued to question the accused, asking  if  he  worked,  what  he did, what school he attended, and what grade he reached. These questions  were answered by the accused monosyllabically.
The interview continued:

BROWN: RILEY: BROWN: RILEY: BROWN: RILEY: BROWN: RILEY: BROWN: RILEY: BROWN: RILEY: BROWN: RILEY: BROWN: HAMMER:

Can you - can you read and write? Nah.
Can you - can you read? Can't read English at all? Nah.
Little bit or not?

No.

Can't read.

No.

Can you write English? Can you write with a pen?

Nah.

Can you understand me when I speak to you? Yeah.
Is that yes?

Yes.

You have to speak up - it's on the tape.

.	(Raised voice) You're gonna have to speak up, Brian -ah -Louie.

BROWN:	So you - you can understand me okay when I speak to  you, Louie?

RILEY: BROWN: RILEY: BROWN:

RILEY: BROWN: RILEY: BROWN: RILEY: BROWN: RILEY: BROWN:

RILEY: BROWN:

HAMMER: BROWN: HAMMER: BROWN:

Yeah.

You understand what I'm saying?

Yeah.
Alright.	If you have any trouble understanding  me  you  can ask Roy here to give you some help. Alright.
Yeah.

He's your grandfather.

Yeah.

And 'cause you're only sixteen. Mmm.
He's here to help you. Do you understand that?

Yeah.

Anytime while I'm speaking to you, or Rob  Farmer  here speaking to you, and you can't understand us, you ask Roy - alright?
Yeah.

He's here to help you.  Do  you  understand  that?  Roy,  as you can tell, Louie's a bit shy, mate.
Yeah.

If you feel he doesn't understand something. Mmm.
_From either of us you feel free to ---

HAMMER: BROWN: HAMMER: BROWN:

RILEY: BROWN: RILEY:

Yeah - alright.

--step in.

Righto.

You happy to have Roy sitting here - sit here while I  speak  to you --
Yeah.

--- about this?

Yeah.

The accused was then questioned regarding his health  that evening  and  whether  he  had any tiredness or ill  health  that  would  prevent  the  interview  from  continuing. The interview continued thus:

BROWN: RILEY: BROWN: RILEY: BROWN: RILEY: BROWN: RILEY: BROWN: RILEY: BROWN:

How - how do you feel now, Louie? Good.
Good.

Mmm.

You feel alright to talk to us or?

Yeah.

You don't wanna - you're not tired or sick or anything? Mmm-mmm
No.

Nothin'.

Nothing. Before I started asking you -  before I  started  asking you these questions did you see me  take  these  tapes  out  of these packets?

RILEY: BROWN: RILEY: BROWN:

RILEY: BROWN: RILEY: BROWN:

RILEY: BROWN: HAMMER: BROWN:

Yeah.

They brand new tapes --­

Yeah.

---  is  that right?	And I put these tapes in this machine  here. Did you see me do that?
Yeah.

Did I tum that machine on?

Yeah.

Alright. And I explained to you  before  that this  machine is -  um - taping what we say on that cassette hey.  Do  you understand that? Did you understand?
Yeah.

You're gonna have to speak up, mate.

You have to speak up when him ask you question.

You see that video camera - I told  you  about  that  video  camera too, did I?

RILEY: BROWN: RILEY: BROWN: RILEY: BROWN:
·RILEY: BROWN:

Yeah.

And what's that do? Take the pi - picture.
That's right. So you understand that the cassettes are going? Yeah.
They're gonna record your voice or whatever you say. Yeah.
And that video camera up there's gonna record your picture -

right.

RILEY: BROWN: RILEY: BROWN:

Yeah.

When you talk to us. Do you understand that? Yeah.
Right.	You	understand	that you're under arrest at the

moment?

RILEY: BROWN: RILEY: BROWN: RILEY: BROWN: RILEY: BROWN: RILEY:

Yeah.

You're not - you're not free to go. Yeah.
You understand that? Yeah.
So you're in Police Custody at the moment. Yeah.
You understand? Yeah.

At this stage of the questioning there was no  attempt  to  assure  the  accused that whilst he was not free to leave, being in police custody, he was nevertheless not compelled to answer questions.
The interview continued thus:

BROWN:

RILEY:

Right.	I want to ask you some questions, Louie, about this complaint  we got  from  this  Ruth  Benson last night.	She said that she was assaulted and raped by you and one other person. Mmm.

BROWN: RILEY: BROWN: RILEY:

Do you understand what I want to speak to you about? Yeah.
What do I want to speak to you about? You tell me. The rape.

(This answer tended to indicate the accused understood what the questioning

involved.)

BROWN: RILEY: BROWN:

RILEY: BROWN: RILEY: BROWN: RILEY: BROWN: RILEY: BROWN: RILEY: BROWN:

When was that?

Last night.

Alright.	Before I ask you - before I ask you some of those

questions, I'm gonna first tell you  that  you  don't  have  to  answer any of my questions if you don't want to. Do you understand that?
Yeah.

What did I just say?

Not to answer everthin' you hear.

Yeah - you don't have to answer it if you don't want to. Yeah.
You understand? Yeah.
You tell me what I mean by that? (no answer - long pause.)
I - I'm not gonna force you to answer any  questions  -  alright. You only answer those questions of your own free wiU.  You don't have to answer them if you don't want to. Do you

understand?

RILEY: BROWN: RILEY: BROWN: RILEY: BROWN: RILEY:

Yeah.

Do you have to answer these questions? No.
No?

(No answer.)

It's up to you, alright? Yeah.

The words used by the accused in reply to the question "What did I just say?",

indicate that probably the accused understood his right of silence. When Constable Brown again asked "You tell me what I mean by that", the accused either could not or would not answer the question. However, Constable Brown  wanted  to  make sure, and the interview continued:

BROWN:

HAMMER:

Do you um - Roy, do you think he understands that,  mate?  Can you just have a - explain to him, please.
Louie, him asking you if -  ah  -  if that Constable ask you if  any word you want to talk like - you willing to talk like, hey? Louie, come on, don't be frightened. You gonna talk?

Mr Hammer's tone of voice during this was cajoling, and persuasive.

RILEY: HAMMER: BROWN:

What about?

Well, that question him gonna ask you about that lady.

Yeah, you don't - you don't have to - don't have to answer  me if you don't want to, Louie. It's up to you - alright -  if  - whether you talk to me or not. Alright. I'm not gonna force

you or threaten you or anything like that. It's up to you. You answer - you only have to answer  of  your  own  free will.  Do you understand?

RILEY: BROWN: RILEY: BROWN:

RILEY:

BROWN:

Yeah.

You sure?

(No answer - long pause.)

Alright.	If I asked you a question and you  don't  want  to answer it, you don't have to. It doesn't worry me. Alright?
Yeah.

So, if - if you want to tell me that's fair enough  -  that's  up  to you. But if you don't  want  to  tell  me,  that's  up  to  you  also. It's not - doesn't worry me. You got - it's your own free will whether you talk to me about this trouble or  not.  You understand?

RILEY: BROWN: RILEY: BROWN: HAMMER:

RILEY: HAMMER:

RILEY:

Yeah.

Do you have to answer my questions? (No answer - long pause.)
Do - do you understand what I'm saying, Roy, about?

Yeah. If him ask you a question you - you  reckon  you  tellin'  him straight. Hey?
'Bout that thing?

'Bout  that  thing last night.	Him ask you any questions, you tell him truth or what?
Mmm. Yeah, tell him straight out?

HAMMER:	Yeah.

During the above discussion with Mr Hammer, the accused  was  clearly  puzzled  and the questions he asked were in an incredulous tone. The accused then looked at the camera, still with a puzzled expression on his face.
The interview continued:

BROWN:		You don't - you don't have to tell me about it if  you  don't  want to - alright. You - you understand what I'm  saying, Louie? No one's forcing you to answer these  questions, alright? You understand?

RILEY: BROWN: RILEY:

Yeah.

Do you understand?

(No answer - long pause.)

At this stage of the interview  the questioning  was  taken  over  by  Constable  Farmer. In cross-examination, Constable Farmer conceded that  he thought  that  Mr  Hammer had been unable to get the message across to the accused that he was not obliged to answer questions and  that  his  (Constable  Farmer's)  questioning  was  a  further attempt to explain to Riley the effect of the caution.

FARMER:

RILEY: FARMER:

Speaking is - um - Senior Constable Farmer.  I just - so we're  clear on this Louie, I want you to understand that  this  is  a  choice you have  -  alright?  You  have  a  choice  here  today. You can - if you want to, you  can  talk about it.  Alright?  Do  you understand that?
Yeah.

But if - if you don't want to talk about it, you don't have to

talk about it. No one is going to force you.  Okay?  It's  up  to you. You decide what you want to do.

RILEY:

FARMER: RILEY: FARMER:

RILEY: FARMER:

RILEY: FARMER:

RILEY:

(long pause). I down the pub  -  ah  -  when  the  pub  been closed.
Yeah - yeah.

Yeah.

Just - just hang on  a  moment,  Louie. We're  just  -  we -just have to make sure that you understand what  your  rights  are here today - okay?
Yeah.

We want - want you  to -  to -  we want  to be sure and  we want to be fair to you. We want to make sure you understand what
- what rights you  have here - okay? We want  to be -  we want  to be sure that you know that if you - if you don't wonna say anything you  don't  have to say  anything. Okay?  You  can  - you can just be quiet if you want to. You don't have to say anything. Okay?
Yeah.

Or you can say to us "I  don't  want  to  say  anything  to  you" and we'll - we'll stop this. Alright?  It's up  to  you.  So  you  - you - you make the choice of what you want to do.
(No answer.)

It was obvious to both Constables Brown and Farmer that despite their  gallant attempts, they did not know if the accused understood his rights and having reached

this stage it might have been more prudent for them to have attempted to have the caution translated into the  accused's  language  by  Mr  Hammer. However,  this  did not occur and Constable Brown continued the interview thus:

BROWN:

RILEY: BROWN:

HAMMER: BROWN:

RILEY: BROWN:

You	understand	that,	Louie,	what   that   Senior	Constable

saying? You understand?

Yeah.

Alright.	We'll   -    we'll  go   on.	If you don't think he understands at all, Roy, just stop us, mate, we'll ---
Yeah.

--- we'll have a bit of a yarn about it. Right. Anything that - anything that we say is going to be recorded on these cassettes
- right?

Yeah.

Now these cassettes may be -  may  be given  to that Magistrate in court.

RILEY: BROWN: RILEY: BROWN:

RILEY: BROWN: RILEY: BROWN:

Yeah.

And he can listen to 'em. Yeah.
You  understand  that?	Do you know - do you know what

happens in court? (No answer.)
Do you know - know what the - do you know what a court is? Mmm-mmm - nothin'.
Um - do you know what a Magistrate is?

RILEY: BROWN:

RILEY: BROWN: RILEY: BROWN:

RILEY: BROWN: HAMMER: BROWN: HAMMER: BROWN: HAMMER: BROWN:

RILEY: BROWN: RILEY:

(No answer - long pause.)

When - when people get in  trouble for  things,  where  do  they go when they get in trouble by the Police? Where do they go? Cell.
Who sends them to jail do you think? Police.
Ah - Police don't send them to  jail. Police  put  'em  to. the  court. Do you know what that court is? Have you ever heard anyone talking about the court house? Other  boys  going  to court or anything like that?
(No answer - long pause.)

Do - they have court here, don't they, Roy? Yeah - we have court.
Where - which building's it in, mate? School.
How often's that - once a month, is it? Once a month - yeah..
Do you know what happens at that school once a month that Roy's talking about?
Mmm.

What - what - what - what's happens there? Court.

The interview continued in this vein, in an attempt to explain to the accused what a

court was and what functions a  court  performed.  The  accused's  monosyllabic answers, together with his denial that he  had  ever  been  to  court  before,  gave  me little confidence in the value of his answers on this topic. After  this  topic  had concluded the interview then proceeded thus:

BROWN:

RILEY; BROWN: RILEY: BROWN:
they? RILEY: BROWN: RILEY: BROWN:

RILEY: BROWN: RILEY: BROWN: RILEY: BROWN:

RILEY:

Did you - um - speak to that other Policeman in the - in the overalls at all today and the Police Aide?
Yeah.

Where did you speak to them? (No answer - long pause.)
Whereabouts?	Did they come and see you at your house or

Yeah.

And what - what did they say there? What did they tell you? 'Bout rapin' last night.
Oh - right.	So they're the ones that brought you back to the police station - is that right?
Yeah.

And they put you in the cells?

Yeah.

Is that right?

Yeah.

What  -  what  can  you  tell  me  about  last night,  Louie?	What happened, mate?
We went over there in the pub and that pub been closed. And

then  took a  walk over  to see  that  girl  there  at the tree.	Drag 'er in and I have sex with her.

BROWN: RILEY: BROWN:

HAMMER: BROWN:

RILEY: BROWN: RILEY: BROWN: RILEY:

You had sex with her? Yeah.
You're  gonna  -  you're  gonna  have  to speak  up.	Speak really

clear so the tape can hear you. Do you understand? You gotta talk loud.
Talk  loud  like  Roy talks, hey.	I can't hear you and the tape won't hear, mate - that's all. So you said you were at the pub
- is that right?

Yeah.

Were you drinking at all? Yeah.
What time did you start drinking, yesterday? (No answer - long pause.)

At this point Mr Hammer became impatient and asked the accused in a very  demanding tone:

HAMMER: RILEY: HAMMER: RILEY: BROWN: RILEY: BROWN:

What time you been drinking yesterday? Lunch time or what? Mmm.
Hey?

Lunch time. Lunch time, hey? Yeah.
What - what sort of grog are you drinking? What sort?

RILEY:
BROWN: RILEY:	Green can.
VB - green cans, hey? Yeah.	
BROWN:	And you - you started drinking at lunch time?	
RILEY:	Yeah.	
BROWN:	Did you drink all day - right through - or did you have a	
	break?	
RILEY:	Yeah, just break.	
BROWN:	Sorry?	
RILEY:	Break I had.	
BROWN:	You had a break from drinking?	
RILEY:	Yeah - yeah.	
BROWN:	Then what happen then? Did you go to the pub, did yah?	
RILEY:	Yeah.	
BROWN:	What - what time did you go to that pub?	
RILEY:	(No answer - long pause.)	
BROWN:	Was it after the sun went down - night time, or still day time	
	when you went ... (pause)	
RILEY:	Night time.	
BROWN:	Night time?	
RILEY;	Yeah.	
BROWN:	Did you go up by yourself or were you with other people?	
RILEY:	Other people.	
BROWN:	Who - who was with you? Who'd - who'd you go to the pub	

with?

RILEY:	(no answer - long pause.)

Again Mr Hammer demanded:

HAMMER: RILEY: HAMMER: RILEY: BROWN: HAMMER: RILEY: BROWN: RILEY: BROWN:

RILEY: BROWN: RILEY: BROWN: RILEY: BROWN: RILEY: BROWN: RILEY: BROWN:

How long you been gone? (Inaudible).
Riley? Mmm.  Other Riley? Jacob Riley Mmm.
You went to the pub with Jacob Riley, hey? Mmm, yeah.
What  -  what  relation  is Jacob  Riley to you?	What relation is Jacob?
My father.

Your real father, or step? Step.
Stepfather?

Yeah.

He's not - is - is he your uncle, or your stepfather? Stepfather.
Stepfather.

Mmm.

How many - and what were - what were you drinking at the

pub? What - what sort of drink were you drinking there?

RILEY: BROWN:

RILEY:

BROWN:

RILEY: BROWN: RILEY: BROWN: RILEY: BROWN:

(No answer.)

You said before that you were  drinking  those  green  cans. What - what were you drinking at the pub - green cans, too?
Yeah.

How many - how many green cans you think you had

yesterday?

Four.

Four?

Yeah.

Is that four all day, or just four at the pub?

Pub.

And how many - how many did you  have before you  went  to the pub, do you reckon?

Again at this stage of the interview Mr Hammer stated unequivocally: HAMMER:	You had a lot of beer at the pub.
In reply, Riley stated: Only four.

Hammer then questioned somewhat disbelievingly: Only four? The interview continued:

RILEY: HAMMER: RILEY: HAMMER: RILEY:

Mmm.

And you all day had four? (Inaudible).
Who shout you?

Ian.

BROWN:	So you had more than four, hey?

RILEY:	Yeah, more then four. They was shouting.

Constable Brown then established that  the  accused  was  "full  drunk"  and  stayed  at the hotel until it closed. Following this, the questioning  moved  to when  the accused first saw the victim, the victim's state of sobriety in the opinion  of  the accused,  and how the accused first approached the victim with his subsequent suggestion to have consensual sexual intercourse:

BROWN: RILEY: BROWN: RILEY: BROWN: RILEY:
BROWN: HAMMER: RILEY: BROWN: RILEY: BROWN:

RILEY: BROWN: RILEY:

And what did she say to that? She say no.
She said no?

Mmm. (Nods)

Then - then what did you do? Have to rapin' 'er.
Sorry, you'll have to speak up, Louie. (Inaudible)
Have to rape 'em.

You have to rape 'em? Yeah.
What did - what did you actually - what did you do when  she  said no? Did you walk away from her or did you talk  to her  again, or what?
Talk to 'er again.

What - what did you say to her then? Tell her to get up an' walk.

BROWN:

RILEY: BROWN: RILEY:
BROWN:

RILEY: BROWN:

RILEY: BROWN: RILEY: BROWN: RILEY: BROWN: RILEY: BROWN: RILEY: BROWN:

RILEY: BROWN:

What  do  you  mean,  get up?	Was she sitting down or lying down or something, was she?
No, sittin' down. On grass or chair? Grass.
And what she do - what did she do to that when you said that

to her?

(No answer - long pause.)

Do you remember what she did, Louie, when you ask her  to stand up or get up? Can you  remember  what she did?  What  did she do?
She just tell me to wait there. She told you what, sorry?
She tell me to wait there. To wait there?
Yeah.

Why - why was that? (No answer.)
Why - why did she tell you to wait there?

(No answer - long pause.)

When you said - when you said that you raped  her  - is  that right?
Yeah.

Where  -  whereabouts  did  you rape her?	Where - where did

that take place?

RILEY: BROWN:

RILEY: BROWN: RILEY: BROWN: RILEY: BROWN: RILEY: BROWN: RILEY: BROWN: RILEY: BROWN:

RILEY: BROWN: RILEY: BROWN:

RILEY:

(No answer - long pause.)

Can you remember - can  you  remember where  -  where  you had that sex with that girl?
(No answer - long pause.) Was it in the pub, Louie? (No answer.)
Did you have sex with that girl in the pub - in the hotel? Nah.
Well, do you know where you had sex with her? (No answer - long pause.)
Was - was it near the pub or long way away from the pub, or? Long way.
How long is long way? How far? (No answer - long pause.)
Was it at somebody's house or was it out m the  bush somewhere?
Bush.

Out in the bush, hey? Yeah.
Where - whereabouts in the bush? Where - where were you  -  can you remember?
(No answer - long pause.)

At this point in the questioning Mr Hammer clearly lost his patience and stated:

HAMMER:	Come on, Louie, we haven't got wait all day, you gotta talk. After a very long pause indeed, Riley replied: This side of the white man bar.

BROWN: RILEY: BROWN: HAMMER: BROWN: FARMER: HAMMER: BROWN: HAMMER: RILEY: BROWN: RILEY: BROWN: RILEY:

This side of the what, sorry?

White man bar.

What's that - sorry, Louie. Just on this side of the bar. On this side of the bar. So ...
I think he said this side of white man bar.

Yeah.

White man bar?

Yeah.

Yeah.

So right near the hotel, hey? Yeah.
In that bush there? Yeah.

The questioning continued regarding how the victim got  to a  tree,  that  the accused  was accompanied by another, the accused's assault upon the victim, the  injuries sustained by the victim and  the act  of  sexual  intercourse  between  the accused  and the victim. The accused  answered  some of  the questions  but  did  not  answer  many  of the questions put to him  concerning  his alleged  rape of  the victim.  Attempts  by  the police to get him to explain what he meant by  the  word  "rape"  were  not  answered. The accused, in answer to a direct question as to whether he had "sex"

with the victim answered "yeah" . It  is not clear  that he  understood  the  meaning  of  the word "rape". Mr Hammer remained silent until the  accused  was  asked  by Constable Brown in three different questions what the victim was  wearing.  The  accused did not answer these questions and Mr Hammer interceded thus:
HAMMER:	He just ask you what - what kind of clothes she was wearing.

It was clear from his demeanour that Mr Hammer was impatient and anxious for the interview to conclude as quickly as possible.
Questioning about the clothes worn by  both  the victim  and  accused  continued  with the accused answering some questions  until he was  again  asked  about  the actual  act of sexual intercourse:

BROWN: RILEY: BROWN: RILEY: BROWN:

RILEY: BROWN:

HAMMER: RILEY: HAMMER:

And you took your own clothes off. What happened then?

(No answer - long pause.)

You - you said before that you had sex with her - is that right? Yeah.
How - how did you have sex? Just - just explain to me if - if

you  want  -  how  -  how  you  have  sex  with a girl.	Could you explain to me how you do that?
(No answer - long pause.)

Can you just ask him, say - I think he might  be  a  bit  shy because he's not gonna tell me.
(Native language)  that  girl. Me laid on him and hold him.
(in an instructing fashion) Well you want to tell him that story now. Don't be shame boy.

RILEY: BROWN: RILEY: BROWN:

HAMMER: RILEY: BROWN: RILEY: BROWN:

RILEY: BROWN:

RILEY: BROWN: RILEY: BROWN:

RILEY: BROWN:

RILEY: BROWN:

I be makin' 'er lay down an' have sex with 'im. Make her lay down?
Yeah.

Was she - was she laying down on her front or her  back,  or what? How was she laying down?
Belly down.

Belly up.

Belly up, hey. So she's laying on her back. Mmm.
And when you have sex, what does - what does - what do you mean by that?
(No answer - pause.)

Like, what's a - what's a - what's a man do when he has sex? What's he do with a lady?
(No answer.) Can you explain? (No answer.)
You - you know what I - you know what I'm talking about, Louie, when you have sex with a girl?
Yeah.

Alright. The way I have sex  with a girl I put my dick in that  girl, hey?
Yeah.

How do - how do you have sex with a girl?

RILEY: BROWN: RILEY: BROWN: RILEY: BROWN: RILEY: BROWN:

RILEY: BROWN:

(No answer.)

Same way or different way? Same way.
Is that what you did to that girl last night?

Yeah.

What, you put your dick in her?

Yeah.

What do you call that thing you put your dick in - long pause - what's that called?
(No answer.)

What do you call it?

At this stage Mr Hammer clearly felt his intervention was  necessary  to get Louie  to stop wasting time.

HAMMER: BROWN:

RILEY: BROWN:

RILEY: BROWN: RILEY: BROWN:

What do you call - c'mon Louie, what you say?

What -  what -  what  other boys  call  that  thing on  the girl  out at Roper? What do they call it? They must  have  name for  it, hey?
Cunt.

Cunt.	And  that's  -  where's  that  on the girl?	Is that between her legs, hey?
Yeah.

So you put your dick in her cunt - is that right?

Yeah.

How long did you do that for, do you think - last night?

RILEY: HAMMER: RILEY: HAMMER: RILEY: HAMMER: RILEY: BROWN:

RILEY: BROWN: RILEY: HAMMER: BROWN: HAMMER: RILEY:

(No answer - very long pause.) (Inaudible) long time?
No, just little bit. Hey?
Little bit.

How long did it take you? (No reply - pause.)
How  many  -  how many minutes?	You reckon it was minutes or long time, or?
Yeah. What? Yeah.
How long would it taken you? How - how long?
Him ask you.

(No reply - long pause.)

The questioning continued as regards the sexual act and then moved  to  the assault  upon the victim; there again Mr Hammer interceded:

BROWN:	Pub - yeah - but in that middle bar - you know on  that lawn  there. You know that grass out the front  of  that  middle bar. What do you call that, Roy - the middle bar - that grass there, mate - what's that?

HAMMER:

RILEY: HAMMER: RILEY: HAMMER: RILEY:

You know that lawn there where we  sit  down  drinking  beer, that girl bin there, eh?
Yeah.

And you remember hitting that girl there? Yeah I never hit her in there.
And where you hit 'im, that girl? That thing, I don't know.

Following a brief  but  unsuccessful  questioning  period  by  Det.  Snr  Constable Farmer, which tended to elicit no answers the following occurred:

FARMER: RILEY: FARMER: RILEY: FARMER:

RILEY: FARMER:

RILEY: FARMER: BROWN:

So why you take her to the tree, then? (no answer - long pause.)
What - what reason did you take her to the tree, Louie? (no answer - long pause.)
Is - is there some reason why you're not answenng my questions?
(no answer.)

Louie, why is it you're - that you're not answering those  questions?
(no answer - long pause.) I've got nothing ...
Nothing further? Louie - I'm gonna ask you  some  more questions, alright? Is there anything else you want to tell  me about that trouble last night?

RILEY: HAMMER: RILEY: HAMMER: RILEY: BROWN: HAMMER: BROWN: FARMER: BROWN:

RILEY:

(no answer -  long  pause.) You wanna tell him anything? That's all now.
Hey?

That's all now.

What did he say, Roy? That's all.
That's all?

That's all now.

That's all,  hey?	You don't want to say  anything  more about it?
Mmm.

The accused was clearly indicating that the  questioning  was  to  cease  and  at  this stage the police  officers  should  have  discontinued.  However,  the  following occurred:

BROWN:

RILEY: BROWN: RILEY: BROWN: RILEY: BROWN:

Do you think you did the right thing or the wrong thing  last night?
Wrong.

Wrong, hey?

Yeah.

You - why - why's that the wrong thing? (no answer - very long pause.)
Alright.	We'll  finish  up  here,  then,  hey?	Nothing else you

want to say?

RILEY: BROWN: RILEY: BROWN:

RILEY: BROWN: RILEY: BROWN:

RILEY: BROWN: RILEY: BROWN:

RILEY: BROWN: HAMMER:

Yeah.

Nothing.

Yeah.

Finished, hey? Alright. Do you wish to make  a  -  um  -  a written statement about this trouble last night, or have you said enough, do you think?
Had enough.

You've had enough, have you? Yeah.
Do you want me to play the -  one of  these  tapes  back  to  you so you can hear what you said?
Yeah.

You do?

Yeah.

What, tonight or - what I'm saying is I can take -  I  can  take these tapes that we've listen - we've done tonight and  I  can go get a cassette player and we can go put them  in  a  cassette player and we can listen to them again if you want to. If you don't want to it's alright. It's up to you.
(no answer.)

Can you just explain what that means, Roy? He's just...

Louie - if you want him he can play that tape later. But if you don't want him he can't play.

RILEY: HAMMER: RILEY: HAMMER: BROWN:

RILEY: BROWN: RILEY: BROWN:

RILEY: BROWN:

RILEY: HAMMER:

RILEY:

(Inaudible) Hey? (Inaudible)
(Inaudible). You don't wanna listen to the tape, hey?

I'm gonna give you these tapes to take - take home  with  you. You can listen to them at home if you  want,  or  give them  to that Legal Aid, hey?
Yeah.

Is that alright by you? Yeah.
Alright. Did I - did I threaten you at all to make you answer

any of my questions? (no answer.)
Did I threaten or hit you at all to make you answer any of our questions?
(no answer.)

Louie, him ask you if the Constable want to  kill  you  or  threaten you. Nothing, hey?
Nothin'.

The interview concluded shortly thereafter.

I shall deal with each submission individually.

Did the accused confess voluntarily in the sense that he understood he had

the right to remain silent?

In R v Lee and  Others  (1950-51) 82 CLR 133 at 149 the High Court said,  in  a joint judgment:

"The word 'voluntary' in the relevant connection does not mean 'volunteered'. It means  'made in the exercise of a free choice to speak or to be silent'.

It is clear that the Police Constables made considerable efforts to explain to the accused that he had a choice to remain silent or speak to them, and they also explained to him on at least one occasion  that  he was  not  free to go. The police also made an attempt to satisfy the guidelines as set down in R v Anunga and Others; R v. Wheeler and  Another (1976) 11 ALR  412 at 414-5, in that Mr Hammer who was apparently the accused's choice as prisoner's friend, and who could have acted if necessary as interpreter, was present during the interview, and some effort was made to get the accused to repeat the essential elements of the caution. However, guideline  3  in  Anunga clearly requires great care to be taken  when administering  the caution,  as it is not adequate to administer it in the usual terms and then ask "Do you understand that?" or, "Do you understand that you do not have to answer questions?". As Forster CJ stated
"... Interrogating police officers, having explained the caution in simple terms, should ask the Aboriginal to  tell them what is meant by the caution, phrase  by phrase, and should not proceed with the interrogation until it is clear the Aboriginal has apparent understanding of his right to remain silent."

It appears to me that in a case such as the present,  when  the accused  has little understanding of English, unless the prisoner's friend interprets the caution to the accused in his own language and the prisoner's  understanding of the caution, the crown is faced with considerable difficulty in establishing on the balance of probabilities that the prisoner was acting voluntarily in the relevant sense.

Whilst Mr Adams, for the prosecution, conceded that at no stage did the accused explain back the terms of the caution, he submitted that nonetheless, the proof of the accused's understanding of the choice was evidenced by the fact that the accused exercised his choice at the latter stages of the interview (see pages 31 and 32 herein) when the accused decided  that  the interview was at an end and refused to answer any further questions by saying "That's all now". This, coupled with the accused's earlier statement "Not to answer everything you hear" demonstrated fully that the accused  had exercised  a free choice to answer such of the questions as he answered. I was far from satisfied that this must be so, but if it be so, it equally follows that the probable explanation for the accused's silence in not answering many of the questions put to him was that he was attempting to exercise his right of
silence; but notwithstanding that, the police persisted in questioning him to the extent that his will was overborne: see McDermott v. The King (1947-1948) 76 CLR 501 at 511-12 per Dixon J.

"Person in authority".

Mr Algie submitted that because of the structure of aboriginal society in which certain people are "elders" and others in "positions above this" there are people in a position of tribal authority over other members of the tribal community. Because Mr Hammer was president of the  Borroloola Community Council, an elder in the community and the  accused's grandfather, Mr Algie submitted he was a person in tribal authority over the accused. Further he submitted that as a result of that tribal authority, Mr Hammer had the power to order or tell the accused what to do, and that he virtually instructed the accused, who was reluctant to speak to the police, to answer their questions.

In my opinion, Mr Hammer was not a person in authority. In Ibrahim v The King [1914] AC 599 it was held that a "person in authority" includes officers of  the  police and others COJ.?.Cerned in preferring the charge, including the prosecutor: see

also the discussion in R v Dixon; R v Smith (1992) 28 NSWLR 215 at 227 to 230  per Wood J.

In Patrick Joseph Cleary (1964) 48 er.App Rep 116 Finnemore J speaking for the Court of Criminal Appeal held that the appellant's father was not a person  in authority but that his statement to his son, "Put your  cards on  the table.  Tell them the lot... .if you did not hit him, they cannot hang  you,"  was  made in the presence  of persons in authority, namely two senior police officers. The position was  the  same as if they, the police officers, had made the statement themselves, unless they took steps to dissent from it.

Similarly a statement from the father of a sixteen year old appellant in Kevin Neil Moore (1972) 56 Cr.App Rep. 373, to the effect of "My  boy,  you  had  better  tell the truth and then we can go home" was held to have been capable of being an inducement by a person not in a position of authority himself, but offered by the father in the presence of the police who were in a position of authority.

Although Mr Hammer is not a person in authority to the accused, I find that statements made by Mr Hammer (see below) in the presence of  persons  in  authority, Senior Constable James Brown and Detective Senior Constable Charles Farmer were such as to overbear the will of the accused and thus have the same effect, as neither police officer sought to distance themselves from these statements. These statements specifically are:

At page 1 of the first section of transcript when the accused appeared to be exercising his right to remain silent and not provide the  police  with  his name, Mr Hammer lent across to the accused and physically nudged the accused, instructing him "Louie Riley  he talk".  Constable Brown  did  not tell the accused immediately following this that he did not have to talk if that was his choice and thereby distance himself from the instruction.

At page 5 in the first transcript  the tone of  voice used  by Mr  Hammer  when  he told the accused "... to speak up when him ask  you  questions"  was loud  and intimidating, the inference being that the accused  must  answer  the question.

At page 11 of the first transcript the accused remained silent in response to a question. Mr Hammer after  waiting  some  time  demanded  "What  time  did you start drinking yesterday?" The tone of voice used was  such  that  the accused appeared to answer with great reluctance.

The same thing occurred again at page 12 of the first transcript when Mr Hammer demanded "How long you been gone?" The accused's response was reluctant and at first inaudible.

Mr Hammer became very impatient with the accused  when  the  accused  at page 15 of the first transcript, was not answering questions put to him. Mr Hammer demanded: "Come  on  Louie,  we  haven't  got  wait  all  day,  you gotta talk". Mr  Hammer's  demeanour  at  this  stage  of  the  interview  was most intimidating.

At page 7 in the second transcript  Mr  Hammer  suggested  the accused  might be ashamed by saying "Will you want to tell him that story now?  Don't be shame boy." I consider this suggestion was also an inducement.

The accused exercised his right of  silence at page 8  of  the second  transcript but Mr Hammer attempted to coax an answer out of him: "What you care - C'mon Louie what you  say?"  The  accused  by  his  manner  and  mumbled reply to the questioning was clearly reluctant to reply.

Accordingly, I was not satisfied that the admissions  made  were  proven  to  be voluntary on the balance of probabilities, and  for  this  reason  I  held  that  the record  of interview was inadmissible.