Difficulties of Application: The Status and Scope of the Interrogation Rules

566. Difficulties Experienced by the Police in Applying the Anunga Rules. A number of police officers have told the Commission that the Anunga rules create undue problems for the police. In particular, it is said that the prisoner’s friend requirement frequently creates delays which result in lost opportunities to obtain confessional evidence, that Aboriginal deference to authority is over-emphasised, and that they are criticised for failure to provide an interpreter in cases where none was really needed. A police officer stationed at an Aboriginal community in the Northern Territory[390] pointed to some real difficulties in the application of the Anunga rules to Aborigines with very little understanding of English. The restrictions on who should fulfil the position of prisoner’s friend make it difficult to find anyone who could communicate properly, and a police officer could spend all his time at an interview trying to ensure that the Aboriginal person understood the caution because of the way in which it has to be put. Such practical problems must not be overlooked. However, these problems must be balanced against the rights of the individual, and in particular the problems faced by such Aborigines. It is basic that a person who is to undergo interrogation must be informed of the right to remain silent.[391] Clearly this may create difficulties for a police officer when he seeks to interrogate an inarticulate Aborigine with little knowledge of English. But the existence of such a difficulty is no ground for denying the individual’s rights. Ensuring that a person is cautioned and understands the caution is an important aspect of the Anunga guidelines, one that is essential if the guidelines are to have any real meaning. This was a shortcoming in the Criminal Investigation Bill 1981 (Cth), which went no further than requiring the standard caution to be given (cl 19). It is worth noting in this regard the words of Justice Muirhead in Coulthard v Steer:

The traditional caution administered to the majority of Aboriginal people in this Territory proved to be inadequate to establish voluntariness. The affirmative answers — so often the monosyllabic ‘yes’ — to the cautionary questions were found deceptive; it was not safe to assume from simple acknowledgment that the accused truly understood his right of silence, let alone had the capacity to exercise it if he wished. More was needed to ensure the words and meaning of the caution were understood by Aboriginal people. Hence the Anunga Rules which were directed to police officers, not to stifle or impede the police function but to promote efficiency of investigation.[392]

In relation to the South Australian guidelines for the interrogation of Aborigines, Sergeant Frank Warner, then field officer for Police-Aboriginal liaison in South Australia, stated at the Adelaide Public Hearing that in general there are no problems with compliance. Where difficulties did arise it was more likely to be in semi-tribal areas and involve problems in finding a ‘prisoner’s friend’.[393]

567. The Requirement of a Prisoner’s Friend. The question who should perform the role of prisoner’s friend is an important one and has been the subject of comment in a number of cases, both in relation to the absence of a prisoner’s friend and the inappropriateness of a ‘friend’ who was present.[394] For example, in Rockman v Stevens,[395] an Aboriginal boy of uncertain age who was implicated in the offence acted as the prisoner’s friend. On this basis the defendant’s appeal against conviction succeeded. Justice Muirhead commented:

I would only say that it would be unusual that a person in trouble with the police in the police cells, in the custody of the police for the purposes of questioning, would be found appropriate. It would be even more unusual when that person was in the custody or presence of the police for reasons associated with the offence for which the person involved is being questioned. It would be, I would say, extremely rare that a person with those qualifications could be utilised when he had not reached the age of maturity, when he was 12-15 years of age.

This and similar cases demonstrate clearly the need for better guidance on who can be a prisoner’s friend. Justice Brennan, dissenting, in R v Collins considered that one role of the prisoner’s friend was ‘to enhance the suspect’s ability to choose freely whether to speak or to be silent’.[396] Similarly, Rees has argued:

There is no point in having a prisoner’s friend when that person may be just as bewildered and overborne by the experience of police interrogation as the suspect.[397]

The question is whether an Aboriginal suspect should have the right to choose a ‘friend’ even if that person will not be able to assist him. Such a choice may have some psychological advantages and make the suspect more at ease, but the chosen ‘friend’ may be able to do little or nothing to prevent him being overborne. A person who is better able to protect a suspect’s legal rights may be of greater benefit to a suspect even though unknown to him.

568. A Free Choice of Prisoner’s Friend? On the other hand there has been considerable support for the view that a prisoner’s friend should be freely chosen by the suspect, and that no restrictions on that freedom of choice are desirable. The Criminal Investigation Bill 1981 (Cth) proposed a broad category of persons who would qualify as prisoner’s friend: these included a relative or other person chosen by the suspect, a lawyer, a representative of an Aboriginal legal aid organisation and a statutory list of prisoner’s friends.[398] In Gudabi v R the Full Federal Court held that there should be no specified qualification, other than the free choice of the suspect, for a prisoner’s friend. The Court held that:

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 [a requirement that the prisoner’s friend be genuinely independent of the police and able to give active assistance to the suspect] … 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. 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.[399]

It is true that there are dangers, as well as potential inconvenience to the investigation of offences, in police vetting a proposed ‘friend’ for independence, suitability, and so on. There are also practical problems in having as a prisoner’s friend an Aboriginal Legal Service solicitor, as was pointed out at the Public Hearing in Moree. Proposals that the ALS solicitor be present during interrogation in order to protect the client’s interest, as well as imposing demands on the solicitor’s time, also meant that the solicitor could become a compellable prosecution witness as to what the client said. For this reason, it was thought wise to avoid direct involvement in police interrogations.[400] On the other hand, despite this risk many Aboriginal legal service solicitors attend police interviews of their clients because they consider it the most appropriate way to protect their client’s interests. Resolving this problem is by no means easy. A defendant who is at a disadvantage, in respect of the interrogation, in comparison with members of the Australian community generally, is just as likely to be overborne in respect of his choice of a prisoner’s friend (even if he knows of an appropriate and available person) as he is to be overborne in respect of the interrogation itself. It may be argued that these problems with the prisoner’s friend are an inevitable consequence of giving the suspect the right to choose. But, as with waiver of the interrogation rules generally, the difficulty is that a person who can make a genuine choice is, almost by definition, one to whom compliance with the rules is not necessary, since the person will in that case be responding to questions voluntarily, in the sense explained in para 565. The question is not whether rights have been waived, but whether in the circumstances they could genuinely have been waived. If so, the reason for the rights themselves has, substantially, disappeared.[401] Where the interrogation rules do apply, the Commission believes that the function of a prisoner’s friend is ‘to enhance the suspect’s ability to choose freely whether to speak or to be silent’.[402] This function will not be fulfilled if the prisoner’s friend is merely ‘part of the furniture’. Accordingly there should be a preference for a prisoner’s friend who has been nominated by the local Aboriginal legal aid organisation or who is a barrister or solicitor. If no such person is reasonably available, then resort will have to be made to a friend or relative chosen by the suspect. The prisoner’s friend should not be a police officer, an accomplice in the suspected offence, or a person the police reasonably believe should be prevented from communicating with the suspect (eg with a view to destroying evidence or intimidating a witness).[403]

569. Notification of the Aboriginal Legal Service. An important consideration, relevant both to the provision of prisoner’s friends and legal advice, is whether there should be a requirement of notification to an Aboriginal legal service when Aborigines are questioned or taken into custody in respect of an offence. Such systems exist, though often informally and inconsistently, in the Northern Territory, South Australia, Victoria, the Australian Capital Territory and Queensland, and a provision requiring notification was contained in the Criminal Investigation Bill 1981 (Cth).[404] No such requirements exist in New South Wales or Western Australia, where a large proportion of the Aboriginal population in Australia lives. In evidence and submissions to the Commission, few objections were made to the suggest ion that the local Aboriginal legal service be notified whenever an Aborigine is arrested, at least for more serious offences.[405] Such a requirement is essential. It should apply throughout Australia in cases where the suspect is actually in police custody in respect of an offence. Where the suspect (though not in custody) is being interrogated by the police in respect of an offence, a requirement of notification might be thought unnecessary. If not in custody the suspect is by definition free to contact a lawyer or the local Aboriginal Legal Service Office. But this freedom may be illusory, and in any event for an admission or confession relating to a serious offence to be admissible in these circumstances a prisoner’s friend will have to be present (unless the admission or confession is freely made under the test proposed in para 570). Where the prisoner’s friend is a lawyer or Aboriginal Legal Service nominee, no separate requirement to contact a legal service is necessary. Where, however, a friend of the suspect is chosen (other classes of prisoner’s friend being unavailable) it is important that a legal service be notified, and the requirement should accordingly extend to that situation also, in respect of serious offences (ie those punishable by six months imprisonment or more).

570. Excusing Non-Compliance with the Guidelines. An important question concerns the status to be given by the courts to the guidelines. These may take a number of different forms: police standing orders or instructions, judicial pronouncements or legislation. In South Australia, the Northern Territory and the Australian Capital Territory the courts have given the guidelines a status similar to the Judge’s Rules. Any confession obtained where the guidelines have not been complied with may lead to exclusion in the exercise of the court’s discretion.[406] The leading case is the decision of the Full Federal Court in Collins v R,[407] where Justice Muirhead adopted remarks he made in an unreported Northern Territory Supreme Court decision, Stevens v Lewis:[408]

The primary questions … for the court in considering admissibility of admissions allegedly made by Aborigines or, indeed, by any other person in our community are three — relevance, voluntariness and the question of fairness. Each case must be assessed in the circumstances with regard to the individuals involved. The court, in considering the issues, should take into account the guidelines… The guidelines do not alter or constitute a departure from the general law relating to the admissibility of confessions or the matters to be taken into account in the exercise of the court’s discretion. Slavish or unnecessary adherence to the guidelines, technical adherence to the guidelines, technical adherence for the sake of form or apparent compliance was never, in my opinion, intended …

In its Report on Criminal Investigation this Commission made the following recommendation with regard to evidence obtained during interrogations:

A reverse-onus discretionary exclusionary rule of evidence should be introduced. This should provide that evidence obtained by or in consequence of any contravention of any statutory or common law rule — including all the various rules of procedure propos ed in this report should not be admissible in any criminal proceedings for any purpose unless the court decides in the exercise of its discretion that the admission of such evidence would specifically and substantially benefit the public interest without unduly derogating from the rights and liberties of any individual. The burden of satisfying the court that any such illegally obtained evidence should be admitted should rest with the party seeking to have it admitted, ie normally, the prosecution. Certain criteria should be incorporated in the legislation to signpost to the court its obligation to weigh the gravity of the contravention of the procedural rules against the gravity of the offence charged in the context of the total circumstances of the particular case.[409]

This proposal was incorporated in cl 69 of the Criminal Investigation Bill 1981 (Cth), but it has not been free from criticism. The Tasmanian Aboriginal Centre argued that the Anunga rules should be adopted for all Aborigines and that there should be no discretion as to the admissibility of evidence obtained in violation of the rules.[410] The main reason given for this strict requirement was continuing poor relations between police and Aborigines.[411] A more restricted rule was proposed by Davies:

All confessional evidence obtained from interrogations of tribal or semi-tribal Aborigines not conducted with the aid of an interpreter should be rejected unless there is clear proof that the accused in each case has a good command of the English language.[412]

A difficulty with a discretionary exclusionary rule is that it requires the court to weigh up what are essentially different matters: on the one hand, the desirability of ensuring compliance with the interrogation rules and of ensuring that the suspect understood the questions and that they need not be answered; on the other hand, the importance of the evidence in the proceeding. So stated the discretion would presumably lead to the confession always being admitted in serious cases where it was a key element in the prosecution’s case, yet it is in just such cases that the reliability of Aboriginal confessional evidence needs most to be assured.[413] Consistently with the test proposed in para 565, the only questions should be whether the suspect understood the right to silence, and the questions put, and whether the answers given were not given merely out of the suspect’s suggestibility or deference to authority, irrespective of the suspect’s own belief as to the facts. This test, which is reflected in the proposed legislation set out in Appendix l, thus performs the dual functions of delimiting the class of suspects to whom the interrogation rules effectively apply, and establishing a test for the admissibility of confessions where the rules were not complied with, a test which has regard only to relevant matters.[414]

571. Application to Other Investigatory Steps. The principles underlying the interrogation rules — that a person should not be required to incriminate himself, and that admissions should be excluded if obtained in circumstances such that its reliability is as doubtful as its voluntariness — apply equally to admissions made in the course of other investigatory steps where the presence or cooperation of a suspect is required. In particular, the interrogation rules should also apply to admissions given, expressly or by implication, in the course of re-enactments or identity parades involving a suspect.[415] On the other hand material evidence uncovered in the course of investigation presents no special problems in the context of this Reference, and its admissibility can be left to be governed by the general law.

572. Right to Waive Protection. Whether or not interrogation guidelines or rules are contained in legislation, in police instructions or take some other form, the question arises whether the protection they provide should be able to be waived by the suspect, or whether they should apply whatever the suspect’s wishes. The problem has some common features with that of choice of a prisoner’s friend. On the one hand, if the suspect is at a disadvantage in the situation, the reality of any ‘choice’ is doubtful in terms of waiver. On the other hand an Aborigine who (if necessary with the aid of a interpreter) understands the right not to answer and the nature of the questions may decide to do without the protection of the rules: if the suspect’s decision is a real one (that is, made freely and voluntarily), the basic test for admissibility will already have been satisfied.[416] Accordingly the Commission does not believe that waiver ought to be a separate aspect of the rules. In appropriate cases, evidence that free consent was given to dispense with the rules will help to satisfy the court that in the circumstances the suspect had the necessary understanding of the situation for the confession to be admissible.[417] In circumstances where this is not so, however, waiver is, and should be, irrelevant.

573. The Vehicle for Protection: Legislation or Guidelines. On the basis that special guidelines of this kind are desirable, a further important question relates to the most appropriate method of implementation. Existing provisions relating to the interrogation of Aborigines by the police where they exist are incorporated, in various forms, in police standing orders.[418] Some were either instigated or formulated by the courts and later incorporated into police standing orders. As yet no such provisions have been given legislative effect, although if the Criminal Investigation Bill 1981 (Cth) were to be enacted it would specify the rules to be applied by the Australian Federal Police. The Commission has received very few submissions dealing with the question of the most appropriate way of implementing the guidelines. Is it, for example, preferable to rely on provisions in police standing orders or should they be given legislative effect? The Beach Report, which investigated allegations against members of the Victorian Police Force, recommended that many of the police standing orders should be enacted in legislation, or if this were not done, that the standing orders should at least be prepared in simplified form and be available to all members of the public.[419] The Queensland Police Union in a published response to the Lucas Report accepted that Report’s recommendations almost entirely, and argued that the recommendations be incorporated in legislation. However they ma de one exception — the ‘interrogation guidelines’:

Another major recommendation contained in the Report was the abolition of the ‘Judges Rules’ and their replacement with a series of administrative directions … We should all clearly realise that these are not law and would not be written into legislation. They are guidelines set down by the Department which police would be expected to follow during the course of their investigations and subsequent arrests.[420]

One problem with legislative rules is that it may be difficult to draft them in sufficient detail to cover the various situations that can arise. Justice Nader of the Northern Territory Supreme Court has suggested that the Anunga rules need to be redrafted to remove some of the uncertainties about their application:

If it is at all possible I would regard it as very desirable that discretion as to what should be done should be removed from the police constable. He should be able to follow a set of rules laid down for him literally.[421]

However, the National Police Working Party argued for retention of the current system:

The current system which relies on courts exercising their discretion to exclude evidence based on the facts in a given case allows courts to be fluid in their approach to current standards. If that discretion is removed and replaced with rigid legislation, it will lead to evidence being excluded for relatively minor breaches, which were perhaps occasioned through unusual or emergency situations, while on other occasions, evidence which was obtained oppressively might be admitted because it was obtained in strict compliance with the legislation.[422]

In the Commission’s view it is desirable that the basic principles underlying the guidelines be enacted in legislation, to make it clear both to the police and to the courts that the interrogation rules, to the extent that they are applicable in particular cases, are to be taken seriously. Moreover the primary purpose of the interrogation rules is not to regulate, still less to penalise, police misconduct but to regulate the admissibility of certain forms of evidence. Like other aspects of the law of evidence, the rules should be stated in clear and binding form. More detailed requirements can be laid down, if this is thought desirable, in police standing orders or rules of similar status. Accordingly the Commission recommends that the basic interrogation guidelines be set out in legislation. Whether legislation implementing the Commission’s recommendations should be federal, or should be enacted by each State and Territory, is a separate issue. It is discussed in Chapter 38 of this Report.[423]