Safeguards for Aboriginal Suspects in Legislation and Police Standing Orders

553. Extent of Safeguards. Although many recommendations have been made for specific protection for Aborigines under police interrogation,[333] few have been implemented. In those jurisdictions where specific safeguards have been introduced they have come principally through judicial intervention following repeated efforts by legal counsel to illustrate the extent of the problem. At present police departments in Victoria,[334] the Northern Territory,[335] South Australia[336] and the Australian Capital Territory[337] have some system for notifying the local Aboriginal Legal Service after an Aborigine is arrested. In Queensland, South Australia, Northern Territory and the Australian Capital Territory there are guidelines for the police when questioning Aboriginal suspects. A departure from the guidelines without sufficient reason may result in any statement obtained being ruled inadmissible in evidence, through the exercise of a discretion to exclude such evidence. The position in each Australian jurisdiction with respect both to notification of Aboriginal arrests and the interrogation of Aboriginal suspects is different, and it is necessary to examine briefly the current position in each State and Territory to assess the adequacy of protections available under present law and practice.

554. Northern Territory. The guidelines enunciated in Anunga’s Case were, according to Justice Forster:

designed simply to remove or obviate some of the disadvantages from which Aboriginal people suffer in their dealings with police.[338]

The guidelines are now incorporated in Police Circular-Memorandum No 13 of 1979, issued by the Northern Territory Police Commissioner. The guidelines require:

  • an interpreter to be present if the suspect is not fluent in English;

  • the presence of a ‘prisoner’s friend’ (someone in whom the Aboriginal has apparent confidence);

  • great care in administering the caution (right to silence) and ensuring it is understood;

  • the provision of basic refreshments and substitute clothing if needed;

  • no questioning while the person is ill, drunk or tired;

  • reasonable steps to obtain legal assistance if requested.

No requirement was specified in the Anunga Rules for the Aboriginal Legal Service to be notified following the arrest of an Aborigine. Such a requirement is set out in the Police Circular, but the general terms in which it is expressed often mean in practice that (unless a solicitor or field officer of the Service is sought as a prisoner’s friend) the Aboriginal Legal Service is not notified until after a person has been interrogated and charged. The guidelines are regarded as equivalent in status to the Judge’s Rules. Although they impose more stringent obligations on police when interrogating Aborigines than the Judge’s Rules, the legal principles relating to admissibility of confessions (voluntariness and the discretion to exclude) are unchanged.[339] The Supreme Court has strongly supported the Rules, and it is not uncommon for the Court to exclude confessions if there has been non-compliance.[340] A degree of reluctance on the part of some magistrates to apply the Rules in the way intended was sternly re proved by the Supreme Court.[341] But the Anunga Rules were considered, and in some respects restrictively interpreted, by the Federal Court on appeal from the Supreme Court of the Northern Territory in Gudabi v R,[342] Gudabi had appealed to the Federal Court from a conviction for rape on the ground that the trial judge had erred in admitting in evidence admissions allegedly made to the police. It was argued that the statements had not been made voluntarily or alternatively that as a matter of the judge’s discretion they should have been excluded. One ground relied on for such exclusion was that a number of the Anunga guidelines had not been met. A particular point at issue was the suitability of the person used to fulfil the role of prisoner’s friend:

Counsel for the appellant sought to draw from the examples given in the guidelines 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 … 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.[343]

The Court rejected both arguments. In its view there was ‘no principal role for the investigating officer to play in the choice of prisoner’s friend …’. That choice ‘must be left entirely to the person about to be interviewed’.[344] The Court reaffirmed that the Anunga guidelines are not rules of law and added:

It would be wrong to treat what was 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 or inadmissible … 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.[345]

555. South Australia. In South Australia, General Order 3015, entitled ‘Aborigines’,[346] sets out provisions for Aboriginal-police liaison, and procedures to be followed by police when interrogating Aborigines for serious offences. The Circular distinguishes between tribal or se mi-tribal and other Aborigines. In relation to the interrogation of tribal or semi-tribal Aborigines ‘every effort [must be] made to have an independent third party present at the interrogation’ (cl 12); if practicable this should be a solicitor or field officer. Also, if practicable, the person attending should have some understanding of the native language of the person being interrogated. If a child is being interrogated a parent, guardian or Aboriginal field officer is present, if practicable or if the child is under the care of the Department of Community Welfare a representative of the Department is advised and given the opportunity to ‘attend. Special recognition is given to Aboriginal Field Officers attached to the Aboriginal Legal Rights Movement (ALRM), who are issued with identification cards (cl 11). There is provision for information prepared by the ALRM to be made available to an arrested Aborigine and for a field officer to be notified, provided the offender has no objection (cl 13).[347] The ALRM supp lies the Police Department with a 24 hour duty roster, which covers the Adelaide metropolitan area, to enable prompt attendance at least in the case of more serious offences. As in the Northern Territory, the status accorded General Order 3015 is similar to that of the Judges Rules.[348] The Supreme Court has rejected confessions where the General Order (or its predecessor, Police Circular No 354) has not been complied with.[349] But the General Order is an adjunct to the Judge’s Rules, not a substitute. In R v McKenzie[350] Justice Jacobs exercised his discretion to exclude the confession of a 23 year old, well educated and articulate Aborigine who had been charged with murder. McKenzie had not been given the option of a prisoner’s friend until after he had be en cautioned. Justice Jacobs held that the Police Circular had not been breached, because McKenzie was articulate and well-educated. However, quite apart from the Circular, it would have been prudent to offer the assistance of an independent third party given McKenzie’s state of distress and the length of time he had been detained.

556. Queensland. The Queensland Police Manual contains specific provisions for police interrogation of children, and of Aborigines and Torres Strait Islanders. General Instruction 4.54A states:

(1) When a child or Aborigine or Torres Strait Islander is being questioned by a member of the Police Force about his implication in an offence for which he may be apprehended or detained in custody, the member of the Force interrogating the child or other person, will question any one of them in the presence of-

(i) in the case of a child, the parents or guardian of that child, or in the absence of the parents or guardian, an adult person nominated by them or him, or if not nominated, an independent adult person, preferably of the same sex as the child;

(ii) in the case of an Aborigine or Torres Strait Islander in circumstances of language, educational, cultural or ethnic handicaps or differences, an independent adult person concerned with the welfare of those races in whom the person being questioned has confidence and by whom he feels supported, and who can act as an interpreter during the period of interrogation, if necessary, and in either instance described above, in the presence of a person by whom and under circumstances where the child, Aborigine or Torres Strait Islander will not be overborne or oppressed in any way.

General Instruction 4.54A incorporates the main proposals with respect to Aborigines and Torres Strait Islanders contained in the Lucas Report,[351] although it does not include all the Report’s recommendations. There is, in particular, no general requirement for notification of the Aboriginal and Torres Strait Islanders Legal Service whenever an Aborigine is arrested. It would seem notification need only occur if the police consider that the Aborigine or Islander is under a ‘disability’ as a result of ‘language, educational, cultural or ethnic handicaps or differences’.

557. Australian Capital Territory. The General Instructions (1984 revision) of the Australian Federal Police apply both to offences committed in the Australian Capital Territory and federal offences committed anywhere in Australia. General Instruction 1, para 2 requires the Aboriginal legal service to be notified that an Aboriginal or Torres Strait Islander is in custody unless the person objects. Paragraph 3 requires the presence of a prisoner’s friend:

if the suspect is an Aboriginal or a Torres Strait Islander, the member shall not, subject to this section, interview or permit another member to interview him unless –

(e) a prisoner’s friend, a lawyer or a representative of a specified organization is present while he is being interviewed; or

(f) he has, in writing, expressly or voluntarily waived his right to have such a person present.

This requirement may however be excluded in certain circumstances. A member is not required to comply with para (1)(e) in respect of a suspect in custody if the member has reasonable grounds for believing that having regard to the suspect’s level of education and understanding, he is not at a disadvantage, in respect of the investigation of the relevant offence for which he is being interviewed, in comparison with members of the Australian community generally. In addition the General Instruction sets out what it calls ‘exceptional circumstances’ in which para 2 and 3 may be overridden. These include:

  • to avoid danger or death or serious injury to any person or serious damage to property (para 4(1)):

  • if a prisoner’s friend cannot be located or refuses to attend or does not attend within 1 hour of being informed (in which case a senior police officer must be present during the interview);

  • if, in the opinion of the member, the presence of a prisoner’s friend is likely to obstruct or hinder the conduct of an investigation, enhance the escape of an accomplice, lead to loss or fabrication of evidence, allow a witness to be intimidated, or place substantial property in jeopardy. If a decision is made by a member to restrict access a Commissioned Officer must be notified and he has the power to overrule (para 5 and 6).

558. Western Australia. In Western Australia, there is no requirement for the presence of a ‘prisoner’s friend’ during the interrogation of an Aborigine, nor for the Aboriginal Legal Service to be notified when an Aborigine is arrested.[352] However, the admissibility of any confession obtained is regulated by s 49 of the Aboriginal Affairs Planning Authority Act 1972.[353] This provides that in the case of an offence punishable by 6 months imprisonment or more the court:

shall refuse to accept or admit a plea of guilt at a trial or admission of guilt or confession before any trial in any case where the court is satisfied upon examination of the accused person that he is a person of Aboriginal descent who from want of comprehension of the nature of the circumstances alleged or of the proceedings, is or was not capable of understanding that plea of guilt or that admission of guilt or confession.

The section clearly has limited application. It does not provide any specific protection for an Aborigine during a police interrogation. It does, however, provide for certain admissions or confessions to be inadmissible depending on the defendant’s level of comprehension. In addition, s 631 of the Criminal Code (WA) provides for a jury to be empanelled to determine whether an accused person is capable of understanding the proceedings at the trial. These provisions are discussed in the next Chapter.[354]

559. Victoria. A notification system in Victoria has operated for many years. Originally this was done pursuant to the Aboriginal Affairs Act 1967 (Vic) which required the courts and later the police to notify the Director of Aboriginal Affairs when an Aborigine was charged. Following the repeal of the 1967 Act,[355] similar provision was made in Police Standing Orders. A new notification system was established in 1980 with the insertion of a new para 1A in Police Standing Orders:

Where a person who is of Aboriginal ancestry or whose appearance indicates Aboriginal ancestry, or who claims to be of Aboriginal ancestry is arrested for any offence (other than for drunkenness) or is the subject of a care application, the arresting member shall promptly telephone or telex particulars of the case to the Missing Persons Bureau.

In practice the Missing Persons Bureau telephones the Victorian Aboriginal Legal Service (VALS) with name, location and principal charges preferred against the offender as soon as the Bureau has been notified. All offences, regardless of degree of seriousness, are notified. The name and rank of the informant are also notified. It has been said that the system does not work very satisfactorily because the Missing Persons Bureau is not always notified by Police Stations that they have arrested an Aborigine. This means that VALS is not in a position to provide legal advice at an early stage in the legal process:

Other problems still exist which I believe will not finally be overcome until the system is given some legislative backing and clout. Whilst there are instances where legal advice is able to be given to Aboriginal persons prior to the conducting of a record of interview, it would certainly be true to say that in most situations, the notification system simply operates as a means of enabling us to know the forthcoming court dates of Aboriginal clients.[356]

560. New South Wales and Tasmania. There is no notification system in either New South Wales or Tasmania, nor are there special rules for police to follow when interrogating Aborigines. The New South Wales Police Submission expressed the view that no notification system is necessary except in the case of children, where special rules already exist:

I feel there is ample communication between Police and the Aboriginal Legal Service of this State.[357]