549. Northern Territory Supreme Court. Judges in different States and the Northern Territory have on a number of occasions drawn attention to the special difficulties faced by Aborigines, and especially traditionally oriented Aborigines, under police interrogation. In several cases, these comments were the catalyst for amendments to police instructions, described below. The best known and most comprehensive judicial comment is that of Justice Forster (as he then was) in the Northern Territory Supreme Court in R v Anunga. This was the culmination of a number of similar cases involving police interrogation of Aborigines. In rejecting typewritten records of interview between a number of Aborigines and investigating police officers, Justice Forster laid down guidelines to be observed by the police when interrogating Aborigines (the so-called Anunga Rules). The Rules have been followed and applied in a considerable number of cases since 1976, but their application has not been without controversy. These issues are discussed later in this Chap ter.
550. South Australian Supreme Court. In South Australia, Justice Bright in R v Gibson formulated principles and made suggestions relating to the interrogation of Aborigines. He said:
The Commissioner of Police might well consider issuing an instruction which would bring home to investigating officers the desirability, in the case of Aborigines at least, of affording them an opportunity of obtaining independent and impartial advice from someone not in a position of authority.
The questioning of aboriginal natives has always presented difficulties to police officers. The former find it difficult to speak and understand English and to comprehend certain kinds of concepts and reasoning: most white Australians do not speak and understand any dialect of the aboriginal native or comprehend his intuitive reasoning about his own life and affairs. Furthermore, many aboriginal natives — more especially full blooded tribal aboriginals — show a tendency to defer to persons in positions of authority, including police officers, that is far more pronounced and enduring than the average white Australian.
… there is much to be said for the practice instituted by the Chief Commissioner of the Australian Federal Police, at the request of the Department of Aboriginal Affairs, ‘that when an Aborigine is arrested, the police will forthwith notify the nearest office of Aboriginal Legal Services by the most direct means’, a practice which is said to have been agreed to by the South Australian Police Department … No such steps appear to have been taken in the present case. This practice is all the more desirable when an Aborigine has been arrested for an offence which renders him liable to imprisonment upon conviction.
551. Western Australian Supreme Court. Chief Justice Burr in Abdullah v O’Meara went a step further and suggested that the Aboriginal Legal Services should also be notified of all convictions of Aborigines which may result in imprisonment. He upheld an appeal against a sentence of 6 months imprisonment imposed by Justices of the Peace on an Aborigine who had pleaded guilty to a charge of ‘break, enter and steal’. He reduced the sentence to 3 months (Abdullah had already been in gaol for 4 months) and commented that the lack of any notification system could often result in injustice. He added:
I can only express the hope that some procedure can be devised whereby this information gets through to [the Aboriginal Legal Service] quicker than it presently does.
552. New South Wales Supreme Court. While no special guidelines for police interrogation of Aborigines have been formulated by either the courts or the New South Wales Police, Justice Miles in McKellar v Smith commented on the particular difficulties faced by Aborigines:
While the position of the Aboriginal people in New South Wales has not been regarded as such that it requires the formulation of a particular body of guidelines, like those enunciated in Anunga, the history of relations between Aboriginals and law enforcement authorities, particularly in the western parts of the State, should put a tribunal on notice that an Aboriginal person may be at a substantial disadvantage in the interrogation process… In this connection, too, lawyers should not continue to ignore the provisions of the Racial Discrimination Act 1975 nor to overlook the possibility that courts may take judicial notice of the ratification by this country of the International Covenant on Civil and Political Rights, the Declaration of the Rights of the Child and other international instruments which contain provisions and establish standards which may be relevant to the exercise of judicial discretion.