R v Braedon [2000] NTSC 68

PARTIES:	THE QUEEN

	v

	BRAEDON, Steven Jerry

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:	9823567

DELIVERED:	31 August 2000

HEARING DATES:	17 and 18 August 2000

JUDGMENT OF:	MARTIN CJ

CATCHWORDS:

EVIDENCE
Judicial discretion to admit or exclude evidence – DNA evidence – buccal swab – whether unlawfully or improperly obtained.
R v Ireland (1970) 126 CLR 321, applied
Question of Law Reserved (No 1 of 1998) (1998) 100 A Crim R 281 at 286-287
EVIDENCE
Judicial discretion to admit or exclude evidence – video recorded interview – whether Anunga Rules apply – whether investigating police intimidated accused by a misrepresentation of DNA results.
MacDermott v The King (1948) 76 CLR 501 at 511, applied.
Anderson (1991) 57 A Crim 4 143, distinguished.
Cleland (1982) 151 CLR 1 at 15, applied.
For Anunga Rules see Anunga (1976) 11 ALR 412 referred to.

EVIDENCE
Judicial discretion to admit or exclude evidence – DNA profile from blood sample – whether consent satisfied s 145A Police Administration Act (NT)
Police Administration Act 1978 (NT), s 145A
Evidence Act (NT), s26L

REPRESENTATION:

Counsel:
	Appellant:	K Kilvington	
	Respondent:	N Rogers

Solicitors:
	Appellant:	CAALAS
	Respondent:	DPP

Judgment category classification:	B
Judgment ID Number:	mar20027
Number of pages:	14	

Mar20027

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
 R v Braedon [2000] NTSC 68
No. 9823567

	BETWEEN:

	THE QUEEN
	Appellant

	AND:

	BRAEDON
	Respondent

CORAM:	MARTIN CJ

REASONS FOR JUDGMENT

(Delivered 31 August 2000)

[1]	Ruling on voir dire.  The evidence at the voir dire was that there had been sexual assaults at Toddy’s Backpackers in Alice Springs on 3 September 1998.  The police investigated the allegations and identified a number of men who may have been in the vicinity at the time.  They had taken mouth swaps from some ten or twelve of them.
[2]	The accused came to notice as a person who was in that category.  He resided at Illamurta Springs, a distance of two and a half hours by road from Alice Springs.  I accept that there was no reason for the police to have any higher degree of suspicion about him than any of the other men who had been subject to investigation prior to them going to see him.  
[3]	Contact was made with Mr Abbot at Illamurta Springs to ascertain whether the accused was there, and the police travelled there for the purpose of their investigation.  It is clear on the evidence of the police and Mr Abbot that the accused was made aware of the purpose of the visit, that is, an investigation into allegations of rape (or sexual assaults) at the backpacker’s on the day in question.  It was volunteered by Mr Abbot and the accused that the accused had been at Illamurta Springs since the end of August.
[4]	The police raised the question of obtaining a buccal swab from the accused.  Mr Abbot was present during the conversation up until that stage, but said that since it was none of his business he then walked away.  The accused also said that he was left alone with the police.  The police say that the accused and Mr Abbot both then went with them to the police car.  There is a conflict of evidence, and in the end it may not be important, but I think it more likely than not that Mr Abbot accompanied the accused whilst the police undertook that part of the investigation.  Mr Abbot had remained involved in the conversation between the police and the accused up until that stage, and I can see no reason why he would then choose to disassociate himself from it.  At the conclusion of an interview, to which reference will be made later, Detective Brayshaw asked the accused whether he remembered that he and Senior Constable Dooley had been at Illamurta Springs and had taken the mouth swab.  The accused acknowledged that he did.  Detective Brayshaw said: “Barry was there, that was your choice?”  The accused replied: “Yep”.  He was also asked whether he was happy to give the swab and that it was his choice.  The accused and Mr Abbot spoke in Luritja, the accused saying “Yeah”.  Mr Abbot: “Are you still feeling sure about that one?”  The accused saying “All right”.  That piece of the evidence when coupled with the police evidence and the probabilities of what had occurred satisfied me that Mr Abbot was present when the accused and the police went to the police car.  However, Mr Abbot says he did not go to the car, and thus was unable to give any evidence about what transpired there.
[5]	According to the police, they informed the accused about the purpose of the swab and how it might help in their investigations.  They say he was given a choice as to whether to cooperate or not.  The accused says that they told him to do as they instructed and that he felt he must obey because they were policemen.  Both police gave evidence that there was an exchange between Mr Abbot and the accused in Luritja, but what was said between them is not known.  None of the conversation at Illamurta Springs was recorded, and the police recollection as to what was said leading up to the giving of the swab was not certain.  They largely worked upon what they regarded as being standard procedure and what they “would have” said in the circumstances.
[6]	The accused did not give evidence of the words which he said were spoken to him by the police, just that he was told.  I do not accept that Mr Abbot was not present at the police car when the swab was taken.  In his evidence on the voir dire, Mr Abbot said that the accused was his nephew, “not real close”, but that he was a relative, that he liked him and he had looked after him for more than two years.  He regarded him as being a good worker and when Mr Abbot got sick then he was the person who “took his place over”.  He trusted him.  He was present when the accused was interviewed at Illamurta Springs on the first occasion, sat through the interview conducted by the police in Alice Springs, the committal proceedings and the proceedings on the voir dire.  He acknowledged that he did not want to see the accused get into any trouble over this matter.  I think it likely that he was endeavouring to assist the accused.
[7]	I accept that the police explained to the accused that he could provide the swab or not.  They may well have told him how to use the swab.  The accused may have felt under some pressure, but Mr Abbot was there and there was no reason why he could not have declined.  I think it is unlikely that the police would have requested that he give the swab without some explanation as to the use to which it could be put, but I am not satisfied that the explanation was as full as that suggested in the consent form which the accused signed.  As the accused cannot read and as I have some doubt about the extent to which the contents of the form were explained to the accused, I place no reliance upon it.
[8]	There was no common law or statutory requirement governing the procedure to be adopted for the taking of the swab at the time that it was taken (see now s 145A of the Police Administration Act).  But taking the matter at its worst against the police, for these purposes, the case is not unlike that of R v Ireland (1970) 126 CLR 321 where the respondent was told that he had to permit his hand to be photographed.  He was in custody and had been charged with murder.  I am satisfied that in this case the police were still in the course of investigating the alleged sexual assaults and that the accused stood in no different position than a number of other persons who were of interest to them.  Certainly the police had not made up their minds to charge him and there was not the slightest suggestion that he was in custody.  
[9]	It was put in argument on behalf of the accused that the police were under a positive obligation to explain the purpose of the taking of the swab, and advise the accused that the result may provide evidence that he was involved in the commission of the offences; they were obliged to explain to him that he had a choice as to whether he provided the swab or not, and to ensure that he understood that he had that choice.  (An analogy was drawn with the Anunga Rules).  
[10]	The common law in this jurisdiction has not developed so as to treat the giving of bodily samples with the making of a confession, thus requiring a caution and an understanding of it.  That is so, notwithstanding that the giving of a bodily sample may provide damming evidence through DNA testing of the guilt of the person providing the sample.  In any event, no issue arises here as to there having been any inducement held out by the police nor any threat made by them as a means of obtaining the sample.  Nor can it be said that the evidence obtained from the swab was in any respect “unreliable” as may be the case with confessions.  The undisputed evidence is that the accused was handed the swab, he ran it around the inside of his mouth as directed and returned it to the police.  
[11]	Reliance was also placed on R v Ireland and the other cases relating to the exclusion of other than confessional evidence, as to which see the judgment of Doyle CJ in Question of Law Reserved (No 1 of 1998) (1998) 100 A Crim R 281 at pp 286-287.  It is not shown that the police engaged in any unlawful conduct in obtaining the swab.  There is no question of their having assaulted the accused, there was no statutory regulation of the procedure, and I have not been directed to any common law requirements governing the situation.  Nor do I discern any way in which I could be persuaded that the conduct of the police was wrong.  He was not tricked into giving the sample, all that was said against the police is that the accused did not understand that he could refuse and they did not ensure he had a clear understanding of what it was all about and how it might implicate him.  I note that a suitable sample could have been obtained without seeking the accused’s cooperation.  Material which can be useful for DNA testing need not come directly from the body of the person concerned.  It may come from things with which it has been in contact.  (For example, in this case a finger print was found on a bottle in the vicinity of the alleged offence which was later identified as being that of the accused).
[12]	I would not exclude the evidence about the taking of the sample, nor what arose upon an examination of it from the trial.  If I am wrong in holding that the police had done nothing unlawful or improper, then I would nevertheless in the exercise of discretion admit the evidence, bearing in mind the importance of securing a conviction for such a serious offence.  
[13]	It is appropriate that I now provide some further detail about the accused.   He is an aboriginal man aged in his early twenties, and says that he cannot read or write the English language.  There is no evidence to the contrary.  I have had the opportunity of seeing and hearing the video recorded interview by police, and he gave evidence in the course of these proceedings.  In my opinion he has a good understanding of the English language.  He conversed confidently with the police, and appeared to be confident whilst giving evidence.  He was prepared to volunteer information if the occasion arose, and on one or two occasions he corrected things that were put to him.  I am satisfied that the Anunga Rules do not apply.  Nevertheless, the police ensured his understanding of his right to decline to answer questions. 
[14]	A specimen from the swab was found to match semen taken from the body of one of the alleged victims of the sexual assaults.  On the morning of 3 November Detective Brayshaw returned to Illamurta Springs and spoke to the accused, that conversation being recorded on an audio tape recorder.  Mr Abbot was not present.  The question of the buccal swab was reintroduced when Detective Brayshaw asked the accused a series of leading questions to which he received monosyllabic responses.  I place no weight on the contents of that conversation.
[15]	Detective Brayshaw then said: “Now what’s happened that test has come back positive Steven and it said that you broke into that room and raped that girl”.  The accused responded by saying, “Raped” by way of a question and the detective replied: “Yeah you had sex with that girl”.
[16]	The DNA evidence in the hands of police could not demonstrate that the accused had broken into the room where the woman was, nor that she had been raped.  The accused said in evidence that he was shocked when he was told by the detective, but the impact of that assertion may have been broken down immediately afterwards when it was indicated that what was found was that the accused had had sex with her.  He was then arrested.  The detective enquired of him as to whether he understood why he was under arrest, and on hearing a negative response, the detective reminded him of the test and said: “That’s come back and says that you had sex with that girl in that room at Toddy’s at the backpackers place”, still an overstatement.  
[17]	They then returned to Alice Springs and a video recorded interview commenced at 1.49pm.  The accused confirmed that he had spoken to Barry Abbot in Alice Springs, and it was acknowledged by the accused that he wanted to speak to Barry Abbot because he wanted him to sit with him during the interview.  Detective Brayshaw then said: “All right.  Now after you spoke with him what did you decide?” and the accused replied: “I just decided to tell the truth” and the conversation then resumed about having Mr Abbot sit with him during the course of the interview.  
[18]	The interrogation commenced with Detective Brayshaw reviewing the events earlier in the day, asking the accused whether he remembered that he was under arrest for having sex with a girl when she did not want to have sex, and the accused acknowledged that that was the case.  He also acknowledged that Mr Abbot made him feel comfortable in the interview, and it was made plain by the detective and understood by Mr Abbot and the accused that they could talk to each other in English or Luritja.  Their understanding of their freedom to talk in Luritja was demonstrated during the course of the interview.   After further formalities Detective Brayshaw again introduced the subject of the enquiry as being “that someone had sex with them and they didn’t want to … do you understand what I want to talk to you about?” and the accused acknowledged that he did.  He was then cautioned.  
[19]	As the story unfolded, the accused’s version of events was that he had had sex with the lady, but at her instigation and with her consent.
[20]	Counsel for the accused submits that the statements by the investigating police that the result of the tests demonstrated that the accused had broken into the room and raped the girl amounted to intimidation, referring to what fell from Dixon J in MacDermott v The King (1948) 76 CLR 501 at 511.  I do not accept the accused was intimidated by the police.  
[21]	Reliance was also placed on Anderson (1991) 57 A Crim R 143 where I had occasion to rule on the admissibility of a confession brought about by an “interrogatory lie”.  It was different to this case.  The accused there had submitted to a blood test which demonstrated that blood of his type was at the scene of the crime.  That is hardly conclusive that the person actually committed the crime, but the interrogating policeman said: “Well we’ve carried out a blood test, and the blood test indicates that it was you, did you do it?”  The accused admitted that he did.  As to that I said that: 
“The accused was confronted with an assertion made by the Sergeant of Police to the effect that it was the accused’s blood that had been found on the sheet at the scene of the crime, a factor which could well have caused the accused to consider that his best interests may well lie in assisting the police further with their enquiries, which he promptly did”.  
[22]	In ruling that confession inadmissible I relied on what was said in Cleland (1982) 151 CLR 1 by Murphy J at p 15 regarding the voluntariness of a confession being suspect if obtained in a variety of circumstances including, “if anything suggests inducement by threats, promises, false representations or other trickery”.
[23]	If the accused was shocked by the impugned statement by the detective then he said nothing about having been in such a state when he was interviewed.  The evidence of the accused upon the voir dire was that Mr Abbot was found and sat with him and he felt, “about right” because Mr Abbot was there.  He gave no evidence to suggest that the false representation made some hours earlier was then having any effect upon him.  Mr Abbot gave no evidence of the accused having said anything about the representation made by the police.  I am satisfied that the accused’s participation in the interview was voluntary and its contents are admissible. 
[24]	During the course of discussion about the accused’s understanding, Detective Brayshaw asked him whether he wanted to talk to him about the trouble and the following exchange took place between the accused and Mr Abbot in Luritja.  Braedon: “True?  Can I tell them?”  Abbot: “Tell him the truth … tell the truth (inaudible) just tell the truth”.  This exchange gave rise to another objection to the admissibility of the contents of that interview.
[25]	Almost immediately afterwards, the questioning about the alleged offences began and the accused was asked if he could tell Detective Brayshaw what he knew about someone going into a room at the premises, and when the accused made an enquiry of Mr Abbot in Luritja language, Mr Abbot responded in a mixture of English and Luritja: “Well if, if you want to tell it you can, you can, you know what he said before you don’t have to tell.  That’s up to you”.  The accused replied: “Yeah tell what now?” and Mr Abbot said: “Well you just told me what happened.  Did you break it or put your hand in while it was open or broken in or things like that, you can tell him or not”.  The accused then said that he had broken into the house.  I am not satisfied that the accused made the admission because Mr Abbot told him to tell the truth.  He also told him whether he answered or not was a matter for him.
[26]	I now turn to the objections made to the admissibility of the evidence relating to the taking of a blood sample from the accused and the use to which it was put, that is, to obtain a DNA profile to compare with the semen found in the body of the woman concerned.  At the time that that was done, s 145(3) of the Police Administration Act provided that a member of the police force may arrange for a registered medical practitioner to take a specimen from a person in lawful custody for the purpose of having the specimen analysed if the member has reasonable grounds for believing that an analysis may provide evidence relating to the offence, and (a) the person has given his consent in writing; or (b) a Magistrate has authorised the taking of the specimen under s 145(6).
[27]	The requirement that the consent be in writing pays no regard to the fact that many people cannot read, and thus understand what is in a document.  A consent could not be a true consent unless it is freely given in full knowledge of what is involved.  The form that was used for these purposes sought to achieve those objectives and it was signed by the accused after Detective Brayshaw attempted to explain its contents to him. 
[28]	That attempt took place after the conclusion of the interview on video, and in the presence of the other police officer and Mr Abbot.  There had been some intervening unrecorded conversation between Detective Brayshaw and the accused leading to the detective asking at the beginning of the interview whether the accused agreed that he had just explained to him that he wanted to take some blood from his arm.  The accused appears to have acquiesced.  This conversation was recorded by audio only, and thus it is not possible to gain any impression of the reaction of the accused at any stage during the attempt which Detective Brayshaw undertook to explain the contents of the form.  As transcribed, there appears to be no break in the lengthy explanation which the detective then gave, reading firstly from the words of the form and then interpolating his views as to the meaning of the form in the context of the circumstances of that particular case.  There were no responses recorded on the transcript during the course of that explanation.  I  have listened to the tape and can detect none.  
[29]	At the conclusion of the explanation the accused responded only in relation to the question of his having a doctor at the hospital taking a sample of his blood.  He did not raise with Mr Abbot or otherwise any question of his right to decline to have the sample taken.  I am not satisfied that within the meaning of the legislation the accused consented to the taking of the blood sample, and therefore rule that evidence inadmissible.
[30]	It was submitted by the Crown that given the powers of a Magistrate to authorise the taking of a sample, the police could have proceeded in that manner.  That is so, but the fact is, they did not, and I would not be prepared to speculate as to whether a Magistrate would have given that authority.  Counsel for the Crown also directed attention to s 143 of the Police Administration Act, but it does not apply to s 145A.
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