Re Willie Gudabi v R [1984] FCA 16; (1984) 1 FCR 187; 52 ALR 133 (10 February 1984)

FEDERAL COURT OF AUSTRALIA

Re: WILLIE GUDABI
And: THE QUEEN [1984] FCA 16; (1984) 1 FCR 187
No. NT G17 of 1982
Criminal Law - Criminal Evidence
[1984] FCA 16; 52 ALR 133

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Woodward(1), Sheppard(1) and Neaves(1) JJ.

CATCHWORDS

Criminal Law - interrogation of suspect - guidelines for interrogation of Aborigines - admissibility of confessional statements.

Criminal Evidence - Interrogation of suspect - Guidelines for interrogation of Aborigines - Admissibility of confessional statements - Consideration of "Anunga Rules" R. v. Anunga. The appellant was tried on two counts of rape. Each of the counts alleged that the rape was committed on the same woman, the first in January 1981, the second in October 1981. He was convicted on the first but not on the second. He was setenced to two years imprisonment but released forthwith pursuant to the provisions of the Criminal Law (Conditional Release of Offenders) Act 1971 (N.T.), upon entering into a $500, two-year good behaviour bond.

The appellant sought to overturn his conviction and sentence on the basis that evidence of certain conversations and a police interview was wrongly admitted. It was argued that the Crown had not shown that they were voluntarily made, also that they should have been excluded as a matter of discretion.

The evidence was that the appellant had touched the woman with a sacred Aboriginal object, which women are forbidden to see or touch or be touched by. By tradition a woman touched with such an object must obey the man's instructions; in this case to have sexual intercourse. In his interview the appellant acknowledged that this was the reason for the intercourse and that the woman had participated because she was frightened of the sacred object.

The police arranged for a prisoner's friend to be present during the interview, at which a second policeman and a police aide were also present. The appellant had explained to him his right to remain silent and that his answers might be used in legal proceedings; he was questioned as to his ability to understand the constable conducting the interview, and he declined the services of an interpreter (the police aide); he was also told that he was free to talk to the prisoner's friend at any time without police permission.

Held: (1) That in dealing with arguments based on an alleged breach of the Anunga Rules (rules or guidelines, set forth in R. v. Anunga (1976) 11 ALR 412, for the conduct of police officers when interrogating as suspects Aboriginal persons and others) two matters must be borne in mind: (a) the guidelines are not rules of law; breach of, or compliance with the guidelines will not be decisive of the question of admissibility; the legal question will always be whether the confessional statement was voluntary in the sense in which that expression is used in relevant authorities; and (b) the guidelines were formulated in 1976; social conditions and values, and community standards and expectations, had changed and were continuing to change; the application of the Anunga guidelines must reflect the changes in society.

(2) That the Anunga guidelines concerning the choice of the prisoner's friend, as formulated in 1976, did not provide any principal role for the investigating police officer to play in the choice of the prisoner's friend; it would be a retrograde step in 1983 to re-formulate the guideline to provide for such a role.

(3) That the choice of the prisoner's friend must be left entirely to the person about to be interviewed, once it has been explained to him that the purpose of the friend's presence is to give support or help; it would be useful if the person to be interviewed were told, before making his choice, that he will be free to talk to his friend, and ask advice, in the course of the interview.

(4) That the investigating police officer can give such assistance as he is able to an Aboriginal suspect in securing the services of a prisoner's friend, provided he gives that assistance at the express request of the suspect; the overriding consideration must always be that the prisoner's friend is a person selected by the Aboriginal suspect in the exercise of a free choice.

Collins v. The Queen [1980] FCA 72; (1980) 31 ALR 257, distinguished.

R. v. Anunga (1976) 11 ALR 412, applied.

(5) That it had not been shown that the trial judge misdirected himself in any material respect on the issue of voluntariness, that his decision was wrong or that the exercise of his discretion had miscarried.

MacPherson v. The Queen [1981] HCA 46; (1981) 55 ALJR 594, applied.

HEARING

Melbourne, 1983, September 27, 28; 1984, February 10. 10:2:1984
APPEAL.

Appeal against conviction and sentence on a charge of rape.

C. McDonald, for the appellant.

B. Tiffin, for the respondent.
Cur. adv. vult.

Solicitors for the appellant: Northern Australian Aboriginal Legal Aid

Service.

Solicitors for the respondent: Crown Prosecutor's Office (Northern Territory).

P. H. MORRISON

ORDER

The appeal be dismissed.

Orders accordingly.

DECISION

The appellant, Willie Gudabi, was tried before the Chief Justice of the Supreme Court of the Northern Territory (Forster C.J.) and a jury on two counts of rape punishable by section 60 of the Criminal Law Consolidation Act of the Northern Territory. Each of the two counts alleged that the accused at Ngukurr in the Northern Territory had sexual intercourse with Amy Lansen without her consent. The first count alleged that the offence took place on or about 7 January 1981. The offence in the second count was alleged to have taken place on or about 1 October 1981.

2. The jury returned a verdict of guilty on the first count and not guilty on the second. The accused was sentenced on 7 June 1983 to imprisonment with hard labour for two years but released forthwith pursuant to the provisions of the Criminal Law (Conditional Release of Offenders) Act of the Northern Territory upon entering into a "recognizance self" in the sum of $500 to be of good behaviour for a period of two years.

3. The accused has appealed to this Court from his conviction and sentence. The only ground of appeal argued before us was that the learned trial judge erred in law in admitting into evidence at the trial oral evidence of conversations which took place between the accused and officers of the Northern Territory Police on 15 and 18 December 1981 and the written record of an interview conducted by the police with the accused on the later of those dates. It was asserted that the evidence, being of confessional statements made by the appellant, was inadmissible as it had not been shown by the Crown that the statements had been voluntarily made. Alternatively it was argued that the learned trial judge should, as a matter of discretion, have excluded the evidence.

4. The two offences charged were selected by the Crown as representative of a large but undetermined number of similar offences which it was alleged had been committed by the appellant. On the case presented by the Crown there had been a large number of acts of non-consensual intercourse between the appellant and Amy Lansen over a period of some months although, as the prosecutrix had little if any concept of periods of time, the Crown was not in a position to define the period with any degree of precision.

5. The offence of which the appellant was convicted was alleged to have occurred at Ngukurr (Roper River), an Aboriginal settlement near the Gulf of Carpentaria some 320 kilometres east of Katherine. The community consists of 1,000 to 1,200 people. Apart from residential buildings the settlement comprises a mission, a school, a store, a health clinic, a power station, a council office and a police station.

6. According to the evidence given at the trial there are two main ceremonies that are of very great importance to the Aboriginal people in the Ngukurr area and to one or other of which every aboriginal person in the area belongs. Each ceremony has its sacred objects which are normally used only in connection with the performance of that ceremony. There was evidence that Aboriginal women are not allowed to see or touch, or be touched by, any of those sacred objects and that, if an Aboriginal woman does see or touch, or is touched by, such an object, she runs the risk of having a penalty inflicted upon her. An Aboriginal woman touched by such a sacred object is, according to the evidence, bound to carry out the wishes of the Aboriginal man touching her with that object.

7. The case for the Crown was that prior to January 1981 Peter Jackson, his wife Amy Lansen (the prosecutrix) and their four children were living at Ngukurr. They did not have their own house in the community and were staying at the appellant's house. The appellant's wife and another Aboriginal woman also lived at the house. On New Year's Day 1981 Peter Jackson left Ngukurr to travel to Port Hedland in Western Australia. He was absent for some weeks. While he was away Amy Lansen and her children remained living at the appellant's house.

8. During Peter Jackson's absence the appellant was alleged to have approached Amy Lansen and touched her under the left arm with an object which she did not then see. The appellant was alleged to have said words that indicated to Amy Lansen that the object was a sacred ceremonial object which by Aboriginal tribal custom she was not allowed to see or touch. If she had in fact been touched by such a sacred object she would, according to custom, be bound to do whatever the appellant demanded of her. It was alleged that, because of the fear engendered in her by these actions on the appellant's part, Amy Lansen had had intercourse with him and continued to have frequent intercourse with him over a substantial period.

9. When Peter Jackson returned to Ngukurr, his wife did not cohabit with him: he slept outside the appellant's house and she slept inside. This state of affairs continued for a period of months. Eventually the husband became suspicious. He was originally told by his wife that she was under some kind of curse, "Aboriginal trouble", and for that reason she could not sleep with him. Initially he accepted that but after a period became doubtful about it. He consulted an Aboriginal who was senior to himself and to the appellant in the Ngukurr community and in a position to speak with authority in relation to Amy Lansen. A meeting was held as a result of which Amy Lansen again cohabited with her husband.

10. Upon resumption of cohabitation with Peter Jackson Amy Lansen told him of the events of the previous months. He subsequently made the first approach to the police late in 1981.

11. Amy Lansen was absent from Ngukurr in hospital in Darwin for some four weeks in respect of matters unconnected with the events the subject of these proceedings and was, in consequence, not then available for questioning. The regular policeman at Ngukurr, Constable Paul Farnan, was on leave at the time and the matter was drawn to his attention when he returned to duty on 3 December 1981. A statement was prepared by Police Aide Gordon Nawundupi recording the complaint that had been made following a conversation between Constable Farnan and Peter Jackson and Amy Lansen on 9 December 1981. Constable Farnan sought guidance from officers of the Criminal Investigation Branch at Katherine on 15 December 1981, that being the next occasion on which he was in that town where the Criminal Investigation Branch officers were stationed. The officers he consulted were Detective Constable Gary Grant Moseley and Detective Constable Colin Donald Finn. They agreed to investigate the matter.

12. As it happened the appellant was at Katherine at that time and Constable Farnan, who knew the appellant, was asked to find him and request him to come to the police station. This he did. When the appellant arrived at the police station it was apparent that he had been drinking. A conversation took place between Detective Constable Moseley and the appellant in the presence of Detective Constable Finn. Detective Constable Moseley told the appellant that he wished to speak to him about a matter involving Amy Lansen but that he first wished to speak to her about it. He asked the appellant when he planned to return to Ngukurr. The appellant said that he planned to return the next day, whereupon Detective Constable Moseley said that he would see the appellant at Ngukurr within the next couple of days. The appellant then left the police station. The conversation lasted only a few minutes. No questions were put seeking admissions and no admissions pertaining to the matter were made. Evidence of this conversation was adduced by the Crown only to provide the background for what occurred on 18 December 1981. Although a formal objection was taken to the admissibility of the oral evidence relating to this conversation, the objection was not pressed and nothing more need be said concerning it.

13. On 18 December 1981 Detective Constable Moseley, Detective Constable Finn and Constable Farnan drove from Katherine to the Ngukurr area, leaving Katherine at approximately 6.00 a.m. Their journey was delayed because of difficulties encountered on the way. At about halfway between the Wilton River and Ngukurr they met Police Aide Nawundupi who had travelled by motor vehicle from Ngukurr. After ascertaining that Peter Jackson and Amy Lansen were not in Ngukurr the police officers proceeded to Urapunga, a distance of approximately 20 kilometres, where those two persons were interviewed. The police officers then returned to Ngukurr arriving there at about 1.40 p.m.

14. Police Aide Nawundupi then went to find the appellant. He found him sitting outside his house making a boomerang and drove him to the police station. In answer to a question in cross-examination -

"Did you tell him that he had to come up to the
police station?"

Police Aide Nawundupi said -

"Yes I did."

The appellant in his evidence on the voir dire, when asked what Police Aide Nawundupi said to him, replied -

"He just came there. 'Ah', he said to me, 'you'll
have to leave them boomerang. You got to go up to
police station'. 'Ah', I said. I went up. Jump
in the truck, away we went."

There was a dispute as to the time at which the appellant was taken to the police station but it seems clear enough that it was some time between 1.40 p.m. and 2.00 p.m.

15. A conversation then took place between Detective Constable Moseley and the appellant. Detective Constable Finn and Constable Farnan were present. Detective Constable Moseley wrote up notes of that conversation during the evening of 18 December 1981. It appears from those notes that after some questioning directed to the appellant's understanding of his right to remain silent (questioning which it will be necessary to examine more closely later in these reasons), the appellant agreed that Amy Lansen had stayed at his house while her husband was away, and in answer to a question "Did anything happen between you and Amy?" the appellant said: "I was humbugging her." It is clear that in using the word "humbug" and its derivatives the appellant was referring to the act of sexual intercourse between a man and a woman, that expression giving no indication whether the intercourse is consensual or otherwise. The appellant said that Amy Lansen had wanted to have sexual intercourse with him but to further questions he gave answers to the effect that before intercourse took place he had spoken to her about secret ceremony things (referred to as "koolinga") which Aboriginal women should not know about and that he told her "she will have to pay with her body." He said that what he had told her caused her to be frightened.

16. Detective Constable Moseley gave evidence that, prior to that conversation with the appellant, he was sceptical of the story that Amy Lansen had told. However, in the light of the statements the appellant had made he took the view that there may well be truth in what Amy Lansen had alleged and, in consequence, he terminated the conversation with the appellant, informing him that the matter seemed to be a very serious one and he proposed to conduct a formal interview with him.

17. Upon the termination of the conversation a discussion took place between Police Aide Nawundupi and the appellant concerning the obtaining of a prisoner's friend to be present at the proposed interview. No details of that discussion were given in evidence. The appellant chose Mr. Silas Roberts. Police Aide Nawundupi then brought Mr. Roberts to the police station but he declined to act as prisoner's friend for the reason that, being a Justice of the Peace, he might become involved in the matter in that capacity as, indeed, he later did. A discussion then took place between the appellant, Mr. Roberts and Police Aide Nawundupi and the appellant chose Mr. Arthur Dingle to act as prisoner's friend. No details of that discussion are in evidence, but the Police Aide said ".. it was all Gudabi's idea". Mr. Dingle was then brought to the police station. It should be mentioned that Mr. Roberts died before the trial took place.

18. A formal interview was then conducted by Detective Constable Moseley with the appellant, the questions and answers being recorded by means of a typewriter as the interview proceeded. Detective Constable Finn, Police Aide Nawundupi and Mr. Dingle were present during the interview. At the end of the interview what had been recorded was read to the appellant. He did not wish to make any changes and signed his name on each page. The interview lasted from 2.30 p.m. to 5.30 p.m. At its conclusion the appellant was charged.

19. It is unnecessary to set out the whole of the record of the interview but reference must be made to some parts of it.

20. The first part of the interview was directed to the appellant's understanding of his right to remain silent if he chose to do so and of the fact that any answers which he gave might be used in evidence in legal proceedings. The appellant expressed himself as being happy with Mr. Dingle as the person he wished to have with him during the interview. Questions were directed to the appellant concerning his ability to understand Detective Constable Moseley when he spoke to him, the appellant saying that he could do so and declining an offer to have an interpreter present. In this regard it should be noted that Police Aide Nawundupi was able to converse with the appellant in his own language. The appellant was also informed that if at any time he wished to talk to Mr. Dingle he was free to do so without seeking permission from the police officers.

21. In answer to further questions the appellant repeated what he had said in the earlier conversation to the effect that Amy Lansen stayed at his house while her husband was away and that he "was humbugging her". The appellant found difficulty in explaining what humbugging was and he was invited to speak in his own language to Police Aide Nawundupi who translated his answer into English as "sexual intercourse between a man and woman". The appellant further said that he "humbugged" with Amy Lansen once a day over a period of five months. In answer to a question -

"Before you humbug Amy the first time did you say
anything to her?"

the appellant answered -

"I said to her that I had that koolinga stick and
she didn't look and I said to her that she would
have to pay and she (said) how have I got to pay
and I said ah well you will have to pay with your
body".

22. Later he said that he had put the koolinga stick under her arm. He agreed that Amy Lansen had had intercourse with him not because she wanted to but because she was frightened of the koolinga stick. He also said that he had frightened Amy Lansen by informing her, contrary to the fact, that he had had a secret meeting with tribal elders about her.

23. The general principles governing the admissibility of confessions were restated by Gibbs C.J. and Wilson J. in MacPherson v R. [1981] HCA 46; (1981) 37 ALR 81 at pp. 85-6 as follows -

"The rule of the common law ... is that a
confessional statement made out of court by an
accused person is not admissible in evidence unless
it was made voluntarily, that is, in the exercise
of a free choice to speak or be silent. A
confession will not have been voluntary if it has
been obtained from the accused by fear of prejudice
or hope of advantage exercised or held out by a
person in authority, or as the result of duress,
intimidation, persistent importunity or sustained
or undue insistence or pressure - anything that has
overborne the will of the accused. But even if the
statement was voluntary, and therefore admissible,
the trial judge has a discretion to reject it if he
considers that it was obtained in circumstances
that would render it unfair to use it against the
accused. The leading cases in this court on these
matters are McDermott v R [1948] HCA 23; (1948) 76 CLR 501 and R v
Lee [1950] HCA 25; (1950) 82 CLR 133. Since it is a condition of
the admissibility of a confession that it was
voluntarily made, evidence of the confession cannot
be admitted until it has been shown that it was
voluntary. The burden of establishing that the
condition of admissibility has been satisfied lies
on the party seeking to introduce the confession
into evidence, i.e. on the Crown. However, if
there is nothing to suggest that the confession was
involuntary, the presumption is that it was
voluntary (Hough v Ah Sam [1912] HCA 78; (1912) 15 CLR 452 at 457)
and the onus is discharged (Attorney-General for
New South Wales v Martin [1909] HCA 74; (1909) 9 CLR 713 at
731-2). It has been held in Australia that the
Crown need not prove fulfilment of the condition
beyond a reasonable doubt: Wendo v R [1963] HCA 19; (1963) 109
CLR 559. Once the confession has been shown to be
admissible, an accused person who asserts that the
confession was improperly or unfairly obtained
bears the burden of proving facts that would
justify an exercise of the discretion in his
favour: R v Lee, supra, at 152-3; Wendo v R,
supra, at 565.

"The question whether a statement is admissible
is one to be decided by the judge and not by the
jury. It is well settled that when an objection is
taken to the admissibility of a confessional
statement on the ground that it was not voluntarily
made, the proper course is for the judge to hear
evidence on the voir dire in the absence of the
jury as to the circumstances in which the
confession was made: Cornelius v R [1936] HCA 25; (1936) 55 CLR
235 at 248-9; Sinclair v R (1946) 74 CLR 316 at
321, 326; Sparks v R (1946) AC 964 at 982. The
likelihood that the accused would be prejudiced if
the jury heard the evidence and the confession were
later held to be inadmissible is so great that it
is difficult to imagine a case in which evidence on
such an issue could properly be taken in the
presence of the jury. But in any case the judge
must be satisfied that the confession was voluntary
before he admits it, and if the accused wishes to
give or adduce evidence on this issue the judge is
bound to hear it. It will also usually be
necessary to hold a voir dire when the confession
is not alleged to be involuntary, but a real
question arises as to whether it was unfairly or
improperly obtained, although in that case, as we
have said, the burden will lie on the accused to
prove the facts which will reveal the unfairness or
impropriety."

24. The learned trial judge in the present case conducted a voir dire. Evidence was given by Detective Constable Moseley, Detective Constable Finn, Constable Farnan, Police Aide Nawundupi, Mr. Dingle and the appellant. After hearing the evidence and submissions by counsel, including lengthy and detailed submissions by counsel for the appellant, his Honour gave brief ex tempore reasons holding that the confessional statements had been made voluntarily and concluding that none of the factors relied upon, taken singly or in combination, demonstrated that it would be in any way unfair to the appellant to admit the confessional statements in evidence before the jury. His Honour's reasons are amplified and illuminated by a consideration of the exchanges with counsel during argument.

25. Before this Court counsel for the appellant relied upon a number of factors which were said to demonstrate that the confessional material should not have been admitted into evidence. It is necessary to examine each of the factors relied upon but, in the end, the question is whether the learned trial judge fell into error in treating the confessional material as admissible.

26. The first of the factors relied upon concerned the characteristics and attributes of the appellant. He was at the time the confessional statements were made a man of about 70 years of age with a tribal background and an active involvement in tribal affairs. He had never had any formal education and could not read or write. It was said that he had a limited understanding of the spoken English language and that he himself spoke English in a form which in the Katherine and Roper River areas is called "creole" - a synonym for pidgin. He had not previously been interrogated by the police.

27. Another factor on which counsel for the appellant relied concerned the circumstances in which the appellant's attendance at the police station at Ngukurr was procured. It was said that Police Aide Nawundupi's conduct when he went to fetch the appellant from his home was such as to lead the appellant to believe that he was compelled to attend the police station and that this circumstance coloured what took place after the appellant arrived there.

28. Reference was also made to R v Anunga (1976) 11 ALR 412 in which Forster J. (as he then was), speaking for the Supreme Court of the Northern Territory, put on record certain guidelines for the conduct of police officers when interrogating as suspects Aboriginal persons (or migrants, whether European or Asiatic) who may not have an adequate understanding of English or the concepts which English phrases and sentences express. In laying down those guidelines, which it was stressed were not absolute rules, the Court warned police officers that material departure from them would "probably lead to the evidence of the interrogation, whether it be oral or in the form of a record of interview, being rejected" as inadmissible. Counsel for the appellant submitted that, in conducting the interviews at which the confessional statements were made, the investigating police were in breach of a number of the guidelines. In particular it was said that an interpreter should have been present during the interviews (guideline (1)), that the arrangements made for the presence of a "prisoner's friend" resulted in the appellant not receiving the necessary support (guideline (2)), that the cautions given by the police officers were inadequate (guideline (3)), that the proceedings were conducted by the police officers in an oppressive fashion (guideline (4)), that the police officers had failed to investigate the matter thoroughly (guideline (5)), and that the appellant was, during the formal interview, disabled by tiredness (guideline (7)).

29. So far as the attributes and characteristics of the appellant, and in particular his understanding of, and fluency in, the English language, are concerned, the learned trial judge had before him evidence which, if accepted, was sufficient to establish that the appellant had an adequate understanding of the language and of the questions put to him. In addition, his Honour had the very great advantage, not available to this Court, of observing the appellant in a court environment, including an opportunity to assess him in the witness box, when he gave evidence on the voir dire. It is apparent from a reading of the transcript that his Honour took great care to satisfy himself that the appellant had a sufficient understanding of the English language to appreciate the purport of the questions that were put to him. An interpreter was present during the time the appellant gave evidence but there were very few occasions on which his intervention was necessary. We do not think it has been shown that his Honour fell into error, by reason of anything in the attributes or characteristics of the appellant, in holding as he did that the confessional statements were made voluntarily.

30. Neither, in our view, is any significance to be placed on the circumstances in which the appellant was brought to the police station at Ngukurr. Police Aide Nawundupi belonged to the same tribal group as the appellant and was a much younger man who had been known to the appellant for a considerable time. The evidence does not suggest that the appellant was overborne by anything that Police Aide Nawundupi said to him at the time. It suggests rather that the appellant would have seen the summons to the police station as the carrying out of an arrangement made three days earlier in Katherine. Even if the appellant believed that he was obliged to accompany the police aide to the police station, there is nothing to suggest that his free choice whether to speak or remain silent was affected. There was certainly no intention on the part of any of the police officers to place the appellant under arrest.

31. What we have said concerning the appellant's understanding of, and fluency in, the English language also disposes of the suggestion that the interviews were conducted unfairly because of the absence of an interpreter. Further, we do not believe that his Honour fell into error in holding that the interviews had not been conducted in an oppressive manner. There was ample evidence from which his Honour could so conclude. In particular it is apparent that the questions asked took the form of simple inquiries as to facts and circumstances and there is nothing to suggest that any attempt was made to obtain answers prejudicial to the appellant.

32. We do not think there is substance in the submission that the police officers failed to investigate the matter thoroughly or that his Honour should have been satisfied that the appellant was disabled by tiredness at any time during the interviews.

33. We turn now to the submission that what the police officers did by way of administering a caution to the appellant was inadequate and, in particular, that what was done was not sufficient to bring home to him that he did not have to answer anything that he was asked by the officers. The relevant guideline (guideline (3) of the Anunga rules at p.414) provides -

"Great care should be taken in administering
the caution when it is appropriate to do so. It is
simply not adequate to administer it in the usual
terms and say, 'Do you understand that?' or 'Do you
understand you do not have to answer questions?'
Interrogating police officers, having explained the
caution in simple terms, should ask the Aboriginal
to tell them what is meant by the caution, phrase
by phrase, and should not proceed with the
interrogation until it is clear the Aboriginal has
apparent understanding of his right to remain
silent. Most experienced police officers in the
Territory already do this. The problem of the
caution is a difficult one but the presence of a
'prisoner's friend' or interpreter and adequate and
simple questioning about the caution should go a
long way towards solving it."

34. At the commencement of the conversation with the appellant on 18 December 1981 Detective Constable Moseley put certain questions to the appellant relevant to this aspect of the matter. The questions and the appellant's answers are as follows -

Q. This morning I have talked with Amy and her
husband and now I am going to ask you some
questions about this trouble. Do you
understand that?

A. Yes.

Q. You don't have to talk to me about this if you
don't want to. Do you understand that?

A. Yes.

Q. Later on I might tell a court what we talk
about and what you tell me might get you in
trouble. Do you understand that?

A. Yes I understand white fella law.

Q. Do you understand that you might go to gaol
because of this trouble?

A. Yes.

Q. Do you have to talk to me about this trouble
if you don't want to?

A. No. I don't have to.

Later in that conversation, after deciding to conduct a formal interview with the appellant, the following dialogue took place -

Q. Willy, this seems to be a very serious matter.
What I will do now is talk to you some more
about this and I will write down on this
typewriter what we say. Do you understand
that?

A. Yes.

Q. Later I might show the papers I write on to a
court and you might be in trouble. Do you
understand that?

A. Yes.

35. The matter was again addressed at the commencement of the formal interview. The record of that interview records the following -

"Q1. As you already know I am a Policeman from
Katherine and I am going to ask you some more
questions about that trouble with Amy. Do you
understand that?

A. Yes.

Q2. Before I ask you any more questions about this
matter I must warn you that you do not have to
answer any of my questions if you don't want
to. Do you understand that?

A. Yes.

Q3. You do not have to tell me anything about that
trouble with Amy if you don't want to. Do you
understand that?

A. Yes I understand.

Q4. Do you agree that before I started this
conversation I told you that I would write on
this paper everything we said?

A. Yes.

Q5. Do you also agree that I told you that I might
later show this paper to a Judge?

A. Yes.

Q6. Can you tell me what a judge is?

A. He listens to that trouble and he judges like
an old man of tribe.

Q7. What might he do if he thinks that you have
done the wrong thing?

A. Might send me to gaol.

Q8. Do you have to talk to me about this trouble?

A. No I don't have to.

Q9. What might happen to you if you do tell me?

A. I'll get into trouble, fine or gaol.

Q10.Do you want to talk to me about this trouble?

A. Yes."

36. We agree with the learned trial judge that neither in respect of the conversation that preceded the formal interview nor in respect of that interview did the police officers act fully in accordance with guideline (3).

37. For example, before the conversation preceding the formal interview the Constable should have gone on to ask questions such as, "What will happen if you do talk to me?", and "Who might I tell about what you say?", and "What could happen to you?" But the most important question, "Do you have to talk to me about this trouble if you don't want to?" was asked, and the questions numbered 6-10 in the formal record went most of the way towards satisfying the guideline.

38. 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 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.

39. As part of his argument concerning the adequacy of the caution, counsel for the appellant was also critical of Detective Constable Moseley for his failure to make clear to the appellant what it was that was alleged against him. In particular Detective Constable Moseley was criticised for not informing the appellant that he was alleged to have committed rape, and explaining to him the elements of that offence. Detective Constable Moseley agreed that he had not used the word rape and had not explained its elements to the accused. He clearly took the view that it would not have assisted the investigation either from the police or the appellant's viewpoint had he done so. He consistently used the word "trouble" and explained why he did so thus -

"When I talk to Aborigines, and I think a lot
of policemen do the same thing when they talk,
whether it be murder or anything, they talk about
'that trouble', and it seems to be an accepted
terminology - it seems to work well and that's what
- well, my practice certainly is, and I think other
policemen have - and Aboriginals understand that
practice."

The learned trial judge, who has had long experience in this field, did not regard the course followed by Detective Constable Moseley as casting any doubt upon the admissibility of the confessional statements or as providing any reason in point of discretion for regarding the statements as unfairly obtained and we see no reason to disagree with that view.

40. Particularly in view of the unusual nature of the rape, involving as it did deceit or sorcery rather than force, any more specific description of the alleged offence might well have led to confusion rather than to clarification in the mind of the appellant.

41. The matter upon which the greatest reliance was placed on behalf of the appellant was the matter of the choice of the prisoner's friend. The relevant guideline as set out in R v Anunga, at p.414, reads as follows -

"(2)When an Aboriginal is being interrogated it is
desirable where practicable that a 'prisoner's
friend' (who may also be the interpreter) is
present. The 'prisoner's friend' should be someone
in whom the Aboriginal has apparent confidence. He
may be a mission or settlement superintendent or a
member of the staff of one of these institutions
who knows and is known by the Aboriginal. He may
be a station owner, manager or overseer or an
officer from the Department of Aboriginal Affairs.
The combinations of persons and situations are
variable and the categories of persons I have
mentioned are not exclusive. The important thing
is that the 'prisoner's friend' be someone in whom
the Aboriginal has confidence, by whom he will feel
supported."

42. Counsel for the appellant sought to draw from the examples given in the guideline of the type of person who might act as prisoner's friend the concept that the prisoner's friend had to be a person who had the capacity and ability not only to assist the person being interviewed to appreciate fully his right to remain silent in the face of questioning by a police officer, but also to guide him, and perhaps even speak for him, in exercising that right. Counsel sought support for this submission in a sentence in the reasons for judgment of Brennan J. in Collins v R [1980] FCA 72; 31 ALR 257 at p.322 where his Honour said -

"A prisoner's friend is intended to enhance the
suspect's ability to choose freely whether to speak
or be silent."

43. The circumstances in which Mr. Dingle came to be chosen by the appellant as prisoner's friend have already been recounted. Counsel for the appellant was somewhat scathing in his references to Mr. Dingle. He referred to the fact that he was a tribal Aboriginal of advanced years with a background similar to that of the appellant, unable to read and with a very limited ability to write, and a person who did not speak English as his first language. Mr. Dingle was criticised for having taken no part in the interview and as being a person who had neither the capacity nor the inclination to fulfil the role of prisoner's friend - as that role was envisaged in the submissions made on the appellant's behalf.

44. Those submissions raise issues as to the true basis of having a person act as prisoner's friend in relation to a police interview at which confessional statements might be made. The role of prisoner's friend was submitted to be such that it could only properly be filled by a person who could by his presence achieve for the person being interviewed what was referred to as "a practical equality with the average English-speaking person of English descent". It was clear that Mr. Dingle fell far short of fulfilling that role. The submission went so far as to place a duty on the investigating police to ensure that an appropriate person capable of fulfilling such a role was chosen as prisoner's friend.

45. The learned trial judge rejected those submissions. His Honour considered that the essential matter was that Mr. Dingle, although he was not the appellant's first choice, was nonetheless the person whom the appellant had chosen to act as prisoner's friend. His Honour expressed himself as being firmly of the view that it was no part of the investigating officer's function to consider whether Mr. Dingle was a suitable choice and, if he did not so consider him, to suggest to the appellant that another more suitable person should be chosen. It would, his Honour said, have been impertinent of the investigating officer so to act.

46. During the course of argument the learned trial judge drew an analogy between the situation to which guideline (2) is directed and the situation encountered by any other person when about to enter an unfamiliar environment. His Honour instanced such a person entering a church of a denomination unfamiliar to him. Such a person it was said would feel more at ease - or, in the language used in the guideline, supported - in that unfamiliar environment by the mere presence of a friend in whom he had confidence even if that friend had no greater familiarity with the surroundings than the person himself.

47. In dealing with arguments based upon an alleged breach of the Anunga rules two matters must be borne in mind. The guidelines, which have as their object the assistance of investigating officers in conducting their inquiries in such a manner as to be fair to the person being interviewed while at the same time serving the public interest by not unduly inhibiting the investigating process, are not rules of law. It would be wrong to treat what is said in R v Anunga as laying down principles or rules the breach of which in any respect will result in confessional material being rejected as inadmissible. Equally it cannot properly be said that evidence of a confessional statement will always be admissible if it can be shown that the investigating officers did not in any respect contravene those guidelines. The legal question will always be whether the confessional statement was voluntary in the sense in which that expression is used in the relevant authorities.

48. Secondly, it must be recognised that the Anunga guidelines were formulated in 1976 in a social climate which differed markedly, in many respects, from that which has prevailed in the Northern Territory for the last two or three years at least. Social conditions and values, and community standards and expectations, have changed and are continuing to change and, while the basic principles underlying the Anunga guidelines remain valid, their application must reflect the changes in society. This is particularly so in the case of the guideline concerning the choice of a prisoner's friend, for that guideline not only lays down the general principle but proceeds to describe - albeit as examples only - the type of person who might fulfil the role of giving confidence and support to the person being interrogated. One may accept that in the conditions prevailing in 1976 it might well have been expected that an Aboriginal person being interrogated would be likely to choose a person of the kind mentioned. But we think it is clear that the types of persons mentioned were not included because of any notion that, if chosen, they would bring about "a practical equality with the average English-speaking person of English descent." They were included as examples of persons whom an Aboriginal suspect might choose as being persons in whom he might have confidence and by whose presence at the interrogation, and availability for discussion, he might feel supported.

49. If it be accepted, as we think it must, that the guideline as formulated in 1976 provided no principal role for the investigating officer to play in the choice of the prisoner's friend, it would seem to us to be a retrograde step in 1983 to re-formulate the guideline so as to provide the kind of role for the investigating officer that would necessarily be involved in the acceptance of the submissions put to the Court by counsel for the appellant. It would be a retrograde step because it would fail to take account of what counsel himself told us was the almost invariable practice of Aborigines - a practice confirmed to us by Muirhead J. in circumstances which we mention below. In our view the choice of prisoner's friend must be left entirely to the person about to be interviewed, once it has been explained to him that the purpose of the friend's presence is to give support or help. We think it would be useful if the person to be interviewed were told, before making his choice, that he will be free to talk to his friend, and ask advice, in the course of the interview.

50. What we have said about police officers not trying to influence the choice of prisoner's friend does not mean that an investigating officer should not give such assistance as he is able to an Aboriginal suspect in securing the services of a prisoner's friend, provided he gives that assistance at the express request of the suspect. The overriding consideration must always be that the prisoner's friend is a person selected by the Aboriginal suspect in the exercise of a free choice.

51. We do not think that Brennan J. in the sentence which was relied upon from his reasons for judgment in R v Collins, above, intended to suggest a basically different approach. There was no doubt that in that case the prisoner's friend had not been chosen by the suspects in the exercise of a free choice and, because of his role as police interpreter, he was not available for private discussion. Those were the matters that were the subjects of his Honour's criticism. Neither Bowen C.J. nor Muirhead J. adverted to the matter in their reasons for judgment.

52. In our opinion it has not been shown that the learned trial judge misdirected himself in any material respect on the issue of voluntariness or that his decision was wrong.

53. Having ruled that the confessional statements were voluntarily made, the learned trial judge considered whether, as a matter of discretion, he should exclude the evidence on the ground that its admission would be unfair to the appellant. His Honour considered the matters relied upon by counsel, but concluded that those matters, taken alone or in combination, did not establish that the admission of the statements would work unfairness to the appellant.

54. We have had the benefit of a careful and detailed analysis of the various factors relied upon in support of the contention that his Honour fell into error in declining, in the exercise of his discretion, to exclude the confessional material. However, we are satisfied that there was ample material to support his Honour's finding and we do not think he erred in the exercise of the discretion vested in him.

55. Before parting with the case reference should be made to sub-section 25(3) of the Federal Court of Australia Act 1976 which provides -

"Except where the Chief Judge considers it
impracticable for the Court to be so constituted, a
Full Court of the Court for the exercise of
jurisdiction in an appeal from a judgment of the
Supreme Court of a Territory shall include at least
one Judge who holds office as a Judge, other than
an additional Judge, of the Supreme Court of that
Territory."

Unfortunately it was not practicable in the present case for the Full Court to be constituted so as to include a judge who holds office as a judge of the Supreme Court of the Northern Territory. But it will be apparent from what has been said in these reasons that the case is one that requires for its proper resolution a knowledge and understanding of matters that in the ordinary course of proceedings in the Northern Territory would be generally accepted by the courts and by practitioners as background arising from the special conditions which obtain in the Territory and against which the issues arising in the proceedings are to be viewed. The learned trial judge has had a very long experience in the Territory and is well versed in such matters. Counsel for the parties referred to relevant background material in the course of their comprehensive and helpful submissions.

56. However, as none of the members of the Court as constituted for this appeal has had anything approaching the learned Chief Justice's experience in these matters, we considered it appropriate to consult with Muirhead J. whose experience in this regard is also considerable. We consulted with his Honour not as to the conclusions to which we should come in this case, but for the specific purpose of checking information given to us from the Bar table as to how Aborigines normally exercised their right to choose a prisoner's friend and for the more general purpose of being assured that the judges of the Supreme Court were content with the way in which the relevant Anunga guidelines were working generally. In the event, that consultation served only to confirm the views we had tentatively reached on those background matters.

57. For the reasons we have given the appeal should be dismissed.