Special Protection for Aboriginal Suspects?

561. Support for Interrogation Guidelines. Different approaches to the interrogation of Aborigines are taken in each of the States and Territories. Guidelines exist, and have been in operation long enough in the Northern Territory and South Australia, for some assessment to be made of their appropriateness, workability, and of ways of improving them. The Commission has received submissions from Aboriginal Legal Services, State and Territory Police Forces, a National Police Working Party and interested individuals relating to interrogation guidelines. It has had extensive discussions both formally[358] and informally on the issue. It seems that there is strong support, in those jurisdictions where they already exist, for interrogation guidelines, although, as will be noted, some practical problems do arise for the police. The guidelines have become an accepted part of police operations and the Courts have, with some (mostly minor) exceptions, supported and applied them.[359] In jurisdictions such as Tasmania and New South Wales where there are no guide lines, there is resistance to their introduction on the part of the police, and requests for their introduction by Aboriginal Legal Services have so far produced no result. It is necessary to consider the range of these views under a number of headings.

562. Need for Special Protection for Traditionally Oriented Aborigines. Of all Aborigines in Australia, those who are traditionally oriented appear to be the most vulnerable when involved in police interrogation. Interrogation in such cases also creates the most difficulties for police seeking conscientiously to perform their proper functions. Given their degree of contact with the criminal justice system and their history of social and economic disadvantages, it is safe to say that as a group the problems of traditionally arrested Aborigines with police interrogation are significantly greater than those of any other group in Australia. They often have limited understanding of the English language, as well as very limited understanding of the general legal system and its operation.[360] They understand little of the nature of police interrogations and in particular of the right not to answer police questions. Traditionally oriented Aborigines may also feel under significant pressure to make a statement to the police, not necessarily as the result of police interrogation techniques, but rather for strong cultural reasons. This is the view of Mr G Eames, a lawyer with extensive experience in Central Australia:

In many cases with tribal Aborigines, there is great cultural pressure … to make a statement. Whatever requirements there are concerning cautions in the police rules or wherever, there is nevertheless quite significant compulsion on them for their own sake and that of the community to make a statement to announce what their role was in the whole affair. It seems to me there is a real danger for lawyers working with Aborigines accused of murder or manslaughter to not quite appreciate that sort of pressure and then to think it can be overcome with legal advice … In some ways the great danger, a greater danger than verbals or breaches of Judges’ Rules, is that the person who does in fact make a statement, for whatever reasons of pressure from the community, in making the statement does not do justice to what really occurred in the situation.[361]

The susceptibility of traditionally oriented Aborigines to make a statement of some kind is a strong reason for specific procedures to ensure, as far as possible, that any statement made is accurate. Guidelines such as the Anunga rules may be one way of achieving this. It is recognised that it may not always be easy for the police to comply with the terms of the Anunga guidelines,[362] but this must be weighed against the peculiar difficulties faced by many traditionally oriented Aborigines and the need to ensure that their basic rights are not undermined. The Anunga guidelines as they have been applied in the Northern Territory appear to work with reasonable success.[363] If this was not the case and the guidelines did little to ensure the reliability of confessional statements, the only option might be to provide that all confessional statements by traditionally oriented Aborigines were inadmissible. This was the position in Western Australia under the Native Welfare Act 1936 (WA).[364] But such an approach places significant constraints upon the proper investigation of offences. There is accordingly a strong case for the police to be required to comply with guidelines or rules of this kind when dealing with traditionally oriented Aborigines, wherever they may live. Of course, the status and content of such rules remain to be examined.[365]

563. Need for Special Protection for Other Aborigines. While there is fairly general support for the notion of specific interrogation guidelines applying to traditionally oriented or tribal Aborigines, a question arises whether such guidelines should apply more generally, either to all Aborigines or at least to a wider class. The difficulty is to determine to whom the guidelines would apply. On this point the Lucas Report expressed the view that:

It is absurd to think of imposing the same constraints upon investigators in the case of a, say, fairly sophisticated, city dweller of mixed descent as it would be in the case of the illiterate Aborigine living according to his tribal customs.[366]

The existing guidelines for police interrogation of Aborigines vary in their scope. The Anunga Rules were not specifically stated to apply only to tribal Aborigines, though clearly they envisaged persons with difficulties of language and comprehension, and there does not appear to have been any decision of the Northern Territory Supreme Court clarifying this point. There has, however, been judicial comment to this effect in other jurisdictions. For example, in a case before the Australian Capital Territory Supreme Court, Justice Kelly commented:

It is clear that these rules … need not be confined to aboriginals resident in the Northern Territory but I was not persuaded that they had to be followed strictly in the present case. The accused gave evidence that he was aware of his right to seek a solicitor when being interrogated on being arrested. This indicated a degree of relative sophistication which does not appear to be that of those for whom Forster J was concerned.[367]

The South Australian guidelines draw a distinction between tribal or semi-tribal and other Aborigines, whereas in Queensland the basis for distinction is ‘language, educational, cultural or ethnic handicaps’. The Criminal Investigation Bill 1981 (Cth) adopted an approach similar to that used in Queensland, and which was proposed in the Lucas Report. It would have allowed a police officer to dispense with the prisoner’s friend requirement if:

the Police Officer has reasonable grounds for believing that, having regard to the person’s level of education and understanding, he is not at a disadvantage … in comparison with members of the Australian community generally.[368]

There are clearly advantages in this approach. It avoids the need to draw difficult and often arbitrary distinctions between tribal, semi-tribal and other Aborigines. It also considerably simplifies the task of drafting legislation implementing the rules. However it does not overcome all objections. It has been argued that very few Aborigines are not ‘at a disadvantage’ and that such a provision gives the police too much discretion.[369] The House of Representatives Standing Committee on Aboriginal Affairs, in its Report on Aboriginal Legal Aid, was concerned that distinguishing between tribal, semi-tribal and other Aborigines could see the ‘police administering a subjective “sophistication” test based on their notion of tribalism and their judgment of an Aboriginal’s comprehension of English’.[370] This same problem might arise with respect to clause 26(4) of the Criminal Investigation Bill 1981 (Cth).[371] Another problem is that clause 26(4) is directed not at the question of the suspect’s actual level of education and understanding but at the police officer’s reasonable belief as to that level of education and understanding, at the time of the interrogation. A confession could be admissible, although it was obtained without the interrogation rules being complied with and although it had since become clear that the defendant did not understand the right not to answer.

564. Submissions on the Application of Interrogation Rules. The Commission received a number of submissions on this issue. The Victorian Police in their submission opposed the general application of the Anunga guidelines. In their view the guidelines were ‘specifically intended for tribal Aborigines who have inadequate linguistic skills and who generally do not comprehend their situation’. They did not dispute the need for special protection for traditionally oriented Aborigines but took the view that there were no such Aborigines in Victoria and hence no need for the introduction of the Anunga guidelines there.[372] The New South Wales Police also considered that the Anunga guidelines are, and should be, only applicable to tribal Aborigines.[373] A submission from the Tasmania Police stated that the police follow the English Judge’s Rules which are considered adequate for the Tasmanian situation:

Tasmania Police Force can see no reason, having regard to the level of education and integration of the aboriginal descendants in Tasmania, why they should be treated more favourably than other citizens.[374]

The National Police Working Party, formed in 1983 to provide a police view on the Aboriginal Customary Law Reference, submitted that:

In the light of principles of equality and discrimination constraints, any special rules for the interview of Aborigines by police should only apply in cases involving traditionist Aboriginals whose first language is an Aboriginal tongue and who are not well versed in English.[375]

On the other hand, different views have been expressed, for example, by the Victorian Aboriginal Legal Service which stated that the problems identified in Anunga’s case do exist in Victoria:

The police officer is seen as the most direct, and indeed powerful, white authority figure and many of our clients experience enormous difficulty in exercising their rights not to make admissions even when they have elected to adopt this course.[376]

As a consequence, the Victorian Aboriginal Legal Service argued for the inclusion of the Anunga rules in police standing orders. During the Public Hearings on this Reference much support for this view was expressed, particularly by Aboriginal Legal Service representatives.[377] The Tasmanian Aboriginal Centre pointed out that the aim of the Anunga rules was not to give Aborigines rights greater than any other person but rather, because of the disadvantaged position in which Aborigines often find themselves when arrested by the police, to give them equality.[378]

565. Conclusion. The interrogation rules or guidelines should apply to all Aborigines whose difficulties of comprehension of their rights under interrogation, and of the meaning of what is said, warrant such protection. This should be so whether these difficulties arise from lack of education, or lack of understanding based on different conceptions of law, or undue deference to authority. This conclusion accords with those reached in this Commission’s Report on Criminal Investigation, and in the Lucas Report, and it is consistent with the provisions in the Criminal Investigation Bill 1981 (Cth), although some improvements can be made to the way in which the 1981 Bill achieves this aim.[379] In the absence of appropriate changes in the general law of criminal investigation,[380] special protection needs to be provided for disadvantaged Aboriginal suspects under police interrogation.[381] The question is how to achieve this agreed result. The test proposed by the Commission in its interim Report on Evidence contains a number of elements, which in the context of an Evidence Code are able to be legislated for separately.[382] However any special rules for Aboriginal suspects will operate principally in States and Territory Courts and against the background of the common law, which focusses on the notion of voluntariness, a composite notion combining elements of fairness (specifically the right not to incriminate oneself) with a test directed at the reliability of the evidence obtained. In the context of a special law seeking to remedy the problems with Aboriginal suspects which are identified in this chapter,[383] the question of reliability of admissions should not be divorced from the questions of non-self-incrimination and procedural fairness.[384] Accordingly the test for the admissibility of a confession made by an Aboriginal suspect without compliance with the interrogation rules should focus on whether the suspect understood that he or she need not answer any questions, understood the nature of any questions put or statements made in the course of the interrogation, and did not make the admissions merely through a desire to comply with the perceived wishes of a person in authority. Where these conditions are met, it is unnecessary to consider whether the difficulties referred to in para 546 (for example, language, concepts of time and distance) have operated to produce a confession which it would be unsafe or unfair to admit in evidence. Where these conditions are not met, the special protections outlined above, and discussed in the following paragraphs, are necessary. A majority of the Commission[385] believes that no further restrictions on the application of the interrogation rules are necessary or desirable. The test for admissibility itself incorporates the various elements (.comprehension, capacity to choose whether to speak or be silent) relevant to limiting the class of persons who need legal protection. The application of the interrogation rules to Aboriginal suspects generally[386] carries some risk of over-inclusiveness, but this is substantially reduced by the nature of the test for admissibility, which will exclude most, if not, all suspects who do not need the special protection of the interrogation rules. In this area it is better to be over-inclusive than under-inclusive, and it is also better to avoid subjective, question-begging formulas based on the suspect’s perceived disadvantages. However two members of the Commission[387] would spell out the category of persons to whom the interrogation rules should apply. This should be done in broadly the same way as the Criminal Investigation Bill 1981 (Cth) did, but through the use of more precise language, and with a test phrased in terms of the court’s, rather than the investigating police officer’s, judgment of disadvantage.[388] If it is accepted that the interrogation rules should not include Aborigines who are relevantly indistinguishable from the general community, so far as the capacity to understand and deal with police interrogation is concerned, then it is desirable, in the interests of clarity and for the benefit of those who will have to apply the rules, to specify the persons intended to be protected. These members of the Commission accordingly recommend that. the rules should specify that they apply only to those suspects who are specially disadvantaged in relation to police interrogation, having regard to their level of education, fluency in the English language, or other relevant characteristics.[389]