R v Kidner[2006] QDC 138

DISTRICT COURT OF QUEENSLAND

HIS HONOUR:  Terrence Alfred Kidner is charged with two offences.  Both are alleged to have been committed at Palm Island on the 26th of November 2004.  The first alleges that he and other persons, being riotously assembled together, unlawfully began to destroy a police station.  The second alleges that he and others wilfully and unlawfully set fire to a dwelling house.

Objection is taken to the admissibility of a police interview with Kidner conducted on the 28th of November 2004 at the Palm Island school, then being used as a temporary police station.  It is contended that the interview was not voluntary and, in the alternative, the interview should be excluded in the exercise of the discretion. 

The grounds for the objection as stated by Mr Walters are these:

3. (1)
   Kidner did not have a satisfactory support person during the interview.

3. (2)
   The support person played the role of a cross-examiner and Prosecutor or investigator during the interview and castigated Kidner during the interview. 

3. (3)
   The support person did not have an awareness of her role or function or of Kidner's rights. 

3. (4)
   Kidner was a person of very limited intellect and was seriously disadvantaged by the questioning process and the lack of an independent interview friend.

3. (5)
   Kidner generally lacked knowledge as to his rights.

I should first set out the relevant parts of the interview including the introductory parts, those parts where Mrs Geia, the support person, said things and the concluding parts.  Mrs Geia is referred to in the transcript of the interview as Tina whereas her Christian name is, in fact, Peena.

FIRST TRANSCRIPT

Page 1

GEHRINGER:oh okay, today's Sunday the twenty-eighth of November 2004, time now is eleven hundred hours, DSC GEHRINGER, PCSC EGERTON in the art room at the Palm Island School on Palm Island with Terrence Alfred KIDNER awaiting the arrival of is it Tina, TERRENCE?  Is that how you say it Tina?  And she's a she's the justice person over here

EGERTON:did she say that at o'clock

GEHRINGER:eleven hundred.  Hey Terrence, just so you know mate I've just started up this tape while we're waiting for Tina to get here, okay so that’s just recording what we're saying but we'll um let you know what's going to happen once Tina gets here

KIDNER:yeah

GEHRINGER:mate you came down here of your own free will, is that?

KIDNER:hey

GEHRINGER:we we haven't met you when you're in the room here, did you come here by yourself?

KIDNER:UI sisters

GEHRINGER:you rang your sisters

KIDNER:yeah they want me down here

Page 2

GEHRINGER:your sister brought you down here?

KIDNER:yeah

GEHRINGER:oh okay, fair enough

EGERTON:what's your sister's name?

KIDNER:Michelle KIDNER

EGERTON:mmm, is she older or younger than you?

KIDNER:older UI

EGERTON:is she, how old's she?

KIDNER:ah um she's somewhere around twenty something twenty-five, something like that

EGERTON:mmm which, which house does she live in?

KIDNER:mine

EGERTON:same as her mum?

KIDNER:yeah

EGERTON:yep

GEHRINGER:hey Terrence, now from what Sergeant Robson, the other plain clothes police officer who brought you in here, um you've come here for the reason of telling what happened the other day?

KIDNER:yep

GEHRINGER:yep okay and the other police the other Sergeant, he asked ya if you wanted someone here and you said Tina?

KIDNER:Tina yes

GEHRINGER:yep okay, and now we're just waiting for her to come

KIDNER:yeah alright

GEHRINGER:yep, we haven't spoken to you about anything while we've been waiting?

KIDNER:nah

GEHRINGER:nup, okay, that’s alright mate

EGERTON:have you given him a UI yet?

GEHRINGER:nah

Page 3

KIDNER:I don’t say I'm sorry for the UI

[murmuring by Egerton & Gehringer in the background, unable to hear what's being said]

GEHRINGER:so you work over here Terrence?

KIDNER:I no

GEHRINGER:no, do plenty of fishing?

KIDNER:ah yeah, dragon boat

GEHRINGER:dragon?

KIDNER:yeah

GEHRINGER:where do you do that, any particular area?

KIDNER:ah ah yeah, anywhere

GEHRINGER:anywhere

KIDNER:as long as you get a fish

GEHRINGER:I'm hearing ya, that’s what I, that’s what normally doesn't happen for me, I don’t get a fish

[laughter]

GEHRINGER:I think I'm a bit of a Jonah when it comes to fishing

EGERTON:mmm, it's a nice place this isn't' it, it’s a beautiful place?

KIDNER:yeah

EGERTON:mmm

GEHRINGER:so do you go to school over here?

KIDNER:yeah, this school

GEHRINGER:this school.  What grade you go up to here?

KIDNER:ah ten

GEHRINGER:grade ten

KIDNER:yeah

GEHRINGER:did ya pass?  Very good

Page 4

EGERTON:what was your favourite subject?

KIDNER:art

EGERTON:what was your favourite subject?

KIDNER:um wouldn’t have a clue there

EGERTON:did ya like school?

KIDNER:ah yeah but

GEHRINGER:so that would be why you knew it was the art room straight away?

KIDNER:yeah

GEHRINGER:you'd have spent spent plenty of time in here

KIDNER:yeah, is there a video?

UNKNOWN:hello

GEHRINGER:hello

EGERTON:hi, Tina is it?

GEIA:UI

EGERTON:Tina

GEIA:yes

EGERTON:hi UI

GEHRINGER:Tina, my name's Kevin, please to meet ya.  Mate, do you want to grab a chair beside Terrence there, Tina just so you know we've just we've turned the light back tape recorder on while we've been waiting for you just so things are being recorded

EGERTON:alright um, we what we're actually going to do is would like to ask um Terrence some questions about what's happened on Friday and um and of course he had required here the you could be present, so you've come down here an, you're happy to be in an interview?

GEIA:yes

EGERTON:yep okay.  What we'll do for the purpose of the interview, is just get everyone to state their full names, stuff like that so that the tape knows whose who.  Okay, my name is Plain Clothes Senior Constable Louisa EGERTON I'm ah a Plain Clothes Senior Constable working at the Mundingburra CIB in Townsville, my registered number is 8970

Page 5

GEHRINGER:I am Detective Senior Constable Kevin Joseph GEHRINGER, registered number 10581 currently attached to the Townsville Criminal Investigation Branch

EGERTON:okay Terrence, can you just say your full name for me?

KIDNER:Terrence

EGERTON:yep, and do you have a middle name Terrence?

KIDNER:Alfred

EGERTON:and your surname?

KIDNER:KIDNER

EGERTON:alright, can I just have your full name please?

GEIA:my name is Josphine GEIA, ah also known as Peena Geia, chair of Palm Island Community Justice Group

EGERTON:okay, and how do you spell your surname?

GEIA:G E I A

EGERTON:okay, Palm Island Justices Group

GEHRINGER:sorry how do you spell Teena?

GEIA:P E E N A

GEHRINGER:P E E N A

GEIA:The real name is Josephine

GEHRINGER:Josephine, you prefer being called Teena, or?

GEIA:everyone knows me as that

GEHRINGER:as Teena

EGERTON:okay, did you want an opportunity to to talk to Terrence on your own before we continue or?

GEIA:you want to talk with me first?

KIDNER:I don’t know

GEIA:yeah

GEHRINGER:yeah, we'll just step outside while you have a chat

EGERTON:we'll just suspend the interview, the time is ah ten past eleven ok

Page 6

[TAPE PAUSED]

EGERTON:the time ah twelve minutes past eleven am on the twenty-eighth day of November 2004, did you wish to continue with the interview?  Terrence?  Yeah?  Okay, I'll just get you to sit a bit closer for me cause the tape mightn't be able to pick up your voice

GEHRINGER:mate just with your voice, just cause just cause we're using a little compact tape here, if we can I know it's something you've got to think about but when you answer our questions could you just answer them a bit louder for us, just so the tape can pick it up.  That'll be great.

EGERTON:mmm alright I'll just go through a few um rights and things like that just to explain them to you, so you understand where you where you stand with the whole thing

KIDNER:yep

EGERTON:okay, you have the right to remain silent, this means you don’t have to say anything or make any statement unless you wish to do so as anything you say or any statement that you make will be recorded on this tape recorder here, okay and may later be used as evidence.  Do you understand that?

KIDNER:yep

EGERTON:okay, I need ya to vocalise your answers okay, cause nodding of course doesn't pick up

KIDNER:yeah

EGERTON:alright, so you understand you don’t have to say anything?

KIDNER:yes

EGERTON:alright, and you also understand that you have the right to contact anybody um a relative or an interview friend, a lawyer or a solicitor do have them here during questioning and that’s the reason why we've got Josephine here

KIDNER:yeah

EGERTON:is there anyone else that you wish us to telephone?

KIDNER:no

EGERTON:no, alright.  Okay, what I intend to do is ask you a series of questions

KIDNER:yeah

EGERTON:and the questions and any answers that you give to those questions and any statements that you might make yourself or Josephine makes or any of us two police officers will be recorded on the tape

KIDNER:yep

Page 7

EGERTON:alright, do you, do you understand the manner in how we're going to record your interview?  So you understand the reason why you're...

KIDNER:yeah

EGERTON:what's actually happening with the tape there?

KIDNER:yeah

EGERTON:alright, you'll also be provided with a copy of your tape later ok

KIDNER:yeah

EGERTON:we don’t have facilities here but they will be provided, alright.  Okay, do you agree to be interviewed by that manner?

KIDNER:yeah

EGERTON:alright okay um also, has any threat promise or inducement been held out to you to take part in the interview with police today?

KIDNER:ah no

EGERTON:okay, do you know what the three words mean?  Threat, promise and inducement?  A threat means if you, I guess treated some kind of um something will happen to you if you don’t

GEHRINGER:if we threatened to hit you or punch you if you don’t talk to us?

KIDNER:yeah

GEHRINGER:okay, have we have we threatened to do that. Have we told ya we're gonna hit ya

KIDNER:nah

GEHRINGER:nah

EGERTON:and promise means that we're going to offer you something like we'll give you um a car if you talk us or something like that

KIDNER:yeah

EGERTON:so that hasn’t been done?

GEHRINGER:have we offered you money or anything to talk to us?

KIDNER:nah

GEHRINGER:nup

EGERTON:alright okay, so you happy with

Page 8

GEIA:yes

EGERTON:what's happened so far?

GEIA:yes

EGERTON:alright okay, Josephine is here as a support person for you, so anytime you want to ask her something, just go ahead.  Okay?  Alright, what we're doing today is we actually to question in relation to some incidents that happened on Friday afternoon, okay with the involvement of the um damage by fire to a house um and the police station and some vehicles that were involved as well as a a kind of assembly with a  group of people that resolved in some um damage to property, throwing of stones and things like that.  Okay, do you understand that that’s the reason why we want to talk to you today?

GEHRINGER:we just need you to say yes or no for the tape Terrence

KIDNER:nah

EGERTON:so you, you don’t understand that’s

KIDNER:nah

GEIA:can I just say.  What they here you today is to answer them, you tell them what you know, that’s what their asking you

KIDNER:yeah

GEIA:that you here today you know what their talking about

KIDNER:yeah

EGERTON:okay, so we're not going to ask you questions about anything else, that’s all we're talking to you about today

KIDNER:yeah

EGERTON:ok

KIDNER:yep

EGERTON:alright

GEHRINGER:just, sorry, just one other thing Terrence, do you understand that you're not under arrest at the moment?

KIDNER:no

GEHRINGER:okay well you're not under arrest, okay and that means that any time you want to leave anytime you want to stop talking to us you can just get up and leave and stop talking to us.  Do you understand that?

Page 9

KIDNER:yep

GEHRINGER:okay alright um and I know I asked you before um Teena got here but um just to clarify it again for the tape, now that Teena is there um was it fair to say that you said you you were at your sisters place

KIDNER:yeah

GEHRINGER:and she brought you down to the school?

KIDNER:yeah

GEHRINGER:okay and you came down here of your own free will.  No-one made you come down here?

KIDNER:no

GEHRINGER:no, okay

KIDNER:my my sister they made me come down

GEHRINGER:okay, alright and then it was Sergeant Robson asked you if you wanted someone here and that’s when you asked if Teena could come down?

KIDNER:yeah Teena yeah

GEHRINGER:okay, alright thank you

KIDNER:yeah

EGERTON:alright, okay we'll just um clarify some personal particulars first.  So Terrence, can you spell your first name for me?

KIDNER:oh do it I spell it the other way Terrance T E R R Y that’s it

EGERTON:T E R R Y okay, alright and your middle name again?  Alfred

KIDNER:Alfred

EGERTON:and Kidner.  Can you spell Kidner for me?

KIDNER:K I D N E R

EGERTON:alright, and where abouts do you live on Palm Island?

KIDNER:um Dee Street

EGERTON:okay, and who do you live there with?

KIDNER:um brother Carson

Page 10

EGERTON:okay what's his name?

KIDNER:Carson

EGERTON:Carson KIDNER, okay and your date of birth?

KIDNER:twenty-fifth of February eighty-three

EGERTON:okay alright, and where abouts were you born?

KIDNER:Palm

EGERTON:Palm Island?  Okay, do you work at the moment?

KIDNER:nah

EGERTON:alright, and you went to school?

KIDNER:yeah

EGERTON:okay, so what grade did you go to in school?

KIDNER:ten

EGERTON:alright, can you read and write english language?  Can you read?

KIDNER:nah

EGERTON:okay, so can you write at all?

KIDNER:ah yeah

EGERTON:oh right, so if I gave you a newspaper you wouldn’t be able to understand it or?

KIDNER:nah

EGERTON:alright okay, alright can you understand what I'm saying to you?  Do you think he understands or?

GEIA:do you understand what they saying to you bub?

KIDNER:yeah

EGERTON:yeah, if at all you don’t understand what I'm saying, if I use a question or a word or something like that you don’t understand just me know or let Josephine know and then um we'll go from there, okay and we'll put it in a way that is is cool for you to understand?

KIDNER:yeah

EGERTON:you happy with that?

Page 11

KIDNER:yeah

EGERTON:okay

GEHRINGER:you look a bit nervous Terrence?  It's alright mate

KIDNER:yeah

GEHRINGER:you're just you're just here to tell us

KIDNER:yeah

GEHRINGER:what what what you can remember of those days okay, so ah I understand you might be a little bit nervous and what have you but just tell us what you want to tell us, what you know, it's totally up to you okay

KIDNER:right

GEHRINGER:what you tell us

KIDNER:yeah

GEHRINGER:um an an UI you know if you need to talk to her at any time, if you decide all of a sudden you want to talk to her just by yourself, you just let us know and we can pop out of the room again and you can talk to her okay

KIDNER:yeah

GEHRINGER:alrightee

GEIA:you understand that, hey?

KIDNER:yep

GEIA:don’t be frightened to ask?

KIDNER:yeah

GEHRINGER:yep don’t be frightened, if you don’t understand something you just pipe up and say "hey don’t know what your talking about".  Alright?

KIDNER:yeah

GEHRINGER:you just be you just tell us how you feel and what's happening alright

KIDNER:yeah

GEHRINGER:okay

EGERTON:alright, do you want to us what, what you can recall as to what actually happened on Friday?  Like tell us everything you can remember if you want to

Page 14

GEHRINGER:who went in, you said Lexie and someone else did the police car?

KIDNER:yeah

GEHRINGER:the other person?

KIDNER:Garrison

GEHRINGER:Garrison, what's, do you know Garrison, it is Garrison his first name or last name?

GEIA:first name

KIDNER:first name, yeah, yeah I just yeah, first name

Page 39

GEHRINGER:okay, now I'm not from Palm so I sort of don’t know the area...

KIDNER:yeah

Page 41

GEHRINGER:okay and sorry, so where were you when the police station got set on fire?

KIDNER:I was on the side of the road

GEHRINGER:okay, now were you on the road between Chris's house and the police station?

KIDNER:yeah yeah yeah yeah

GEHRINGER:do you know what that road's called?

KIDNER:UI what's that road called, police station

GEIA:police station an

EGERTON:is it Mango Avenue

KIDNER:yeah police ah Mango Avenue hey

GEIA:no Mango Avenue's behind, Chris's house I son um Police Lane

KIDNER:yeah

GEHRINGER:so were you on Police Lane or were you round the other side of Police Lane?

KIDNER:I was in the Police Lane from there I went onto Mango Avenue

GEHRINGER:so initially you were on Police Lane?

KIDNER:yeah

SECOND TRANSCRIPT

Page 2

GEHRINGER:who was filling bottles up?

KIDNER:Russell UI

GEHRINGER:Russell?

KIDNER:yeah

GEHRINGER:what's Russel's last name?

KIDNER:UI yeah

GEHRINGER:sorry?

KIDNER:PARKER

GEHRINGER:Parker, Russell Parker

GEIA:Senior or Junior?

KIDNER:Junior ah Senior

GEHRINGER:Senior Russell Parker.  How long have you known him for?

KIDNER:quite a while

Page 5

GEHRINGER:were you being aggressive towards the police, like were you you angry at 'em, chasing them or were you just...What were you doing?

Page 6

KIDNER:nah um I don’t know I

GEIA:you understand what they say to you?

KIDNER:yeah

GEHRINGER:what I'm saying is like, were you just...

GEIA:was you wild with them?

KIDNER:nah nah nah nah nah nah no just Lexie just made me wild I just you know

GEHRINGER:Lexie made you wild?

KIDNER:yeah

Page 16

GEHRINGER:mat is there anything else, like obviously you've wanted to get everything

KIDNER:nah

GEHRINGER:sorted out with us, that’s why you've come here and told us, what you've told us um there might be something that you did um which you know was the wrong thing to do and we just haven't asked you about it, um, was there anything else you this Friday that, that you did that you want to tell us about that you think...

KIDNER:nah

GEHRINGER:was the wrong thing to do and you want to get cleared up?

KIDNER:say I'm sorry for doing that

GEHRINGER:want to say you're sorry for doing that?

KIDNER:yeah

EGERTON:mmm

GEHRINGER:okay fair enough, good on ya, um

EGERTON:Chris had a um a dog at that house, did you never seen the dog there?

KIDNER:nah never seen a dog UI there

EGERTON:okay alright, what about property inside.  Did you see that all his gear was still in there?

KIDNER:nah I never went inside of it, like I said I just UI

EGERTON:okay

GEHRINGER:you didn’t set fire to anything under the house?

KIDNER:nah just went up the stairs

EGERTON:mmm

GEHRINGER:yeah

KIDNER:yeah, just straight into threw the bathroom there

GEHRINGER:okay

EGERTON:mmm

GEHRINGER:I haven't got anything

Page 17

EGERTON:mmm alright, okay.  Is there anything else you'd like to say?  At all?

GEIA:yeah just like to say that um Terrence, I'm disappointed in you

KIDNER:yeah

GEIA:you know you haven't been brought up that way, you've come from a family an I know cause I worked as the Education Counsellor in the school for years and I saw Terrence through his schooling, he's always been a bit slow

GEHRINGER:mmm

GEIA:and ah just listening to you know you interviewing him, he's very slow in picking up things, but comes from a very quiet family and as I said you know UI there was no talk of anything

GEHRINGER:mmm

GEIA:you know, apart from themselves just grabbing UI they had

GEHRINGER:yep

GEIA:but I'm very hurt because like you know I saw him grow up an come from a family an that’s always ah better if their not trouble makers

GEHRINGER:yep

GEIA:and ah I just regret that you know you did that, you know Terrence and for me like myself word to him that I'm always you know standing in for people like this now but they know full well don’t you that I work closely with the police too

KIDNER:yeah yep

GEIA:and ah I myself that the other night someone was abusing me about standing and I should be helping out people

GEHRINGER:yeah

GEIA:an not

GEHRINGER:yeah

GEIA:not that meaning the police and that kind of thing is insulting you know like

GEHRINGER:yeah

GEIA:and hurtful but you know you did the wrong thing and that’s very wrong

KIDNER:yeah

GEIA:your family will suffer

Page 18

KIDNER:yeah

GEIA:and the police if anything what happened to them, you know their their families wouldn’t have them too for Christmas, had they all been burnt

KIDNER:yep

GEIA:you know you stop an think next time and you know you got someone tell you to lead you out, meant to say 'no' you know it's wrong, you wouldn’t have liked that if it happened at home hey, anyone of us but other people have been hurt too by all this and when you look at things all around Australia throughout the world now an that Palm Island woman's in the in in the news and this another bad thing for us, they'll paint us all with the one brush

KIDNER:yeah

GEIA:you understand what I'm saying?

KIDNER:yeah I

GEIA:next time you've got a tongue in your head, you learn to say 'no' but learn to be sober too sometimes

KIDNER:yeah yeah

GEIA:they were really drunk you know an I I know because I live right there

EGERTON:mmm, this is the day before

GEIA:this was the night before

EGERTON:mmm

GEIA:an an I mean the people were just, it was like ah I mean when I heard what I heard the other night about the other day I just couldn’t believe it.  I could hear the pelts from of rocks

GEHRINGER:yeah

GEIA:and I live down that end, you know

GEHRINGER:yeah, we might just finish this up now, an then we can talk further Teena, just um in relation to the interview Teena, are you within yourself satisfied that Terrence

GEIA:yes very satisfied

GEHRINGER:understood what we asked

GEIA:yes

GEHRINGER:and do you feel that the questions he gave us were appropriate for what we've asked him?

Page 19

GEIA:yes yes

GEHRINGER:alright, um Terrence, how do you are you happy with um what you've said as far as the interview's concerned?

KIDNER:yeah yeah yep

GEHRINGER:alright, mate, one of the questions I we didn’t ask you at the start um, do you currently suffer from any illness or injuries?

KIDNER:nah

GEHRINGER:no, okay an an I know I sort of asked you during the interview, but as far as today's concerned have you drunk any alcohol?

KIDNER:ah nup

GEHRINGER:nup, have you smoked any drugs...

KIDNER:no

GEHRINGER:today?

KIDNER:no not today no

GEHRINGER:not today, alright mate, fair enough.  UI anything else?

EGERTON:mmm, okay um I'll just reiterate to you there was no threat, promise or inducement to you to take part in the interview?  Is that right?

KIDNER:yes

EGERTON:okay, if there's nothing else that anyone wants to say, I'll terminate the interview.  Okay, I now terminate the interview, the time is ah fourteen minutes past twelve on the twenty-eighth day of November 2004

END OF TAPE

HIS HONOUR:  Shortly before the interview commenced Kidner was observed by Sergeant Darren Robinson, then the officer in charge of the Palm Island CIB, at the school fence with another person.  Sergeant Robinson said, "Someone brought him to the fence there and they asked for myself."  Sergeant Robinson said Kidner "was there to surrender himself."  And that he handed him over to other police.  He does not now recall if he had any discussions with Kidner about the interview or who he would like present during any interview.

In the passages of the interview which I have set out from pages 1 to 11 of the first transcript, the police, particularly Senior Constable Egerton, spoke fairly quickly and without much apparent appreciation of any difficulty Kidner may have had in understanding them. 

I am satisfied that Kidner voluntarily attended for the interview.  In the interview, first transcript, page 9, he agreed that his sister brought him to the school.  He agreed that he came to the school to tell "what happened the other day".  When Mrs Geia arrived she was informed that the police wished to question Kidner "about what's happened on Friday".

In her presence he was informed in effect that he was going to be asked questions about the incidents giving rise to the offences with which he is now charged.  Notwithstanding his initial answer on page 8 of the first transcript, I am satisfied that he in fact knew this.  I cannot accept his evidence that he did not know why he went to the police station or why he was there.  I said as much when he gave evidence to this effect and I remain of that view.  His evidence was contrary to the statements he made in the interview and I prefer those over his evidence.

Apart from a limited involvement at the start of the interview, (pages 4-5 and 8, first transcript), Mrs Geia did not really play any other part in the interview except that she clarified a name (page 14, first transcript) and the location of Police Lane (page 41, first transcript) and this followed the statement of Gehringer at page 39, that he did not know Palm Island, and assisted Kidner to understand the question (pages 5-6, second transcript). She did though give me the impression that she was following everything that was said.

What she said at pages 17 and 18 of the second transcript was said after the police questioning of Kidner had effectively concluded and was an expression of disappointment in Kidner for what he had done.  It was not, in my view, an indication of partiality towards the police or any evidence of a prosecutorial bias on her part nor did anything she said amount to cross-examination or investigation.

Kidner is obviously of limited intelligence.  I found him to be both quite obtuse and also somewhat street smart and not as practically unintelligent as Mr Walters and Mr Walkley, the psychologist who assessed him, sought to portray him.

He was born on the 25th of February 1983 on Palm Island.  His mother is alive, his father died when he was small.  He has three brothers and two sisters both aged "27 or 28, something like that".

He was educated on Palm Island to grade 10.  He cannot read or write and cannot spell.  He did though say in the interview that he could write but not to what extent.  He can write his name.

At school he had fun and played sport and went fishing.  He did not pass any subjects at school.

He has never been employed and I doubt that he could engage in any meaningful employment.  On a normal day he said he goes "walkabout".

At the time of the riot he was living in Dee Street with his brother, Carson.

His evidence was somewhat confusing because he went around in circles on some issues in the sense that he contradicted himself, for example whether he spoke to Detective Sergeant Robinson, whether he spoke to Mrs Geia, whether he knew what the police wanted to talk to him about and whether he could recall what Mrs Geia said to him.

I am satisfied that he did in fact request the presence of Mrs Geia and that he was lying when he said he did not.  I thought he made up answers to suit his own purposes.

He was, I am satisfied, aware of the extent to which the application related to Mrs Geia and he was concerned to avoid any responsibility for her presence during the interview and to minimise any understanding he in fact had of the advice she gave him and his knowledge generally of what was going on.

I think that had he been by himself and had he not first spoken to Mrs Geia he may not have sufficiently understood the police when they endeavoured to explain the interview process and his rights, certainly at the speed they were talking which was, as I have said, quite fast.  This is consistent with the evidence of Mr Walkley, see pages 77-78 of the transcript of his evidence.

The speed at which they were talking, particularly at pages 6-11 of the first transcript, showed little appreciation of any difficulties he may have had in understanding them but I am satisfied that with the assistance Mrs Geia provided he did have a sufficient understanding that he did not have to speak if he did not want to and that if he made admissions he would be in "trouble".

When he said in evidence that he understood what the police were saying I think he was more referring to questions about the offences rather than questions about the interview process and his rights.

He agreed that he was told he could have a lawyer.  He also agreed that the police told him he did not have to say anything to them and that he knew what that meant.  He also said that Mrs Geia told him he did not have to talk to the police if he did not want to.  I will deal with his evidence in more detail shortly.

I am not satisfied that Kidner was in custody during the interview.  He had voluntarily attended the school to tell the police what happened the day before.  Notwithstanding that, according to Sergeant Robinson, Kidner said that he came to the school to "surrender himself" he had not been arrested.  I think though that he was probably a suspect and therefore a "relevant person" for the purposes of Part 3 Police Powers and Responsibilities Act.  It appears to have been accepted by the interviewing police that section 251 was operative even though he was not in custody as stated in subsection (2).  The obligation imposed on police by subsection(2) appears to be confined to situations where the person to be questioned is in custody for an offence.

Early in the interview (page 8, first transcript) Kidner was told he was not under arrest and could leave any time.  This is consistent with him having himself volunteered to be interviewed and that that was in fact the perception of the interviewing police.

The police said they did not comply with subsection (2) because they considered he was "not at a disadvantage in comparison with members of the Australian community generally".  I am unable to accept that this was so, notwithstanding the presence of Mrs Geia.  In my view he clearly was and is so disadvantaged.

Senior Constable Gehringer said he did not think he had a special need.  Senior Constable Egerton said she personally had not contacted Legal Aid because Kidner had requested Mrs Geia as a support person and she was happy to fill that role.  Senior Constable Egerton said a disadvantaged person was someone who is "mentally impaired, blind, deaf, things like that".  Persons such as that would clearly be disadvantaged but so, in any event, was Kidner.

Senior Constable Egerton thought he had an understanding of what was going on and seemed happy to continue.  I agree with that impression.  She said she did not think him to be disadvantaged - "he didn't seem slow to me, he looked nervous, but he wasn't slow".  Both police officers understood that his sister had asked him to come to the police station.

Listening to the tapes of the interview, Kidner was a little hard to understand.  He does not speak very clearly.  That was confirmed by his evidence.  The questions asked about the offences were generally simple and short and his answers relatively responsive.

He was assessed by Mr Walkley on the 28th of March 2006.  Mr Walkley read only the transcript of the interview and did not also listen to the tapes.  Mr Walkley's report is Exhibit 8.  Mr Walkley concluded that Kidner is "functionally illiterate". To the extent that Mr Walkley's opinions are based on an acceptance of what Kidner told him about his absence of any criminal history (he does in fact have a criminal history - Exhibit 5), notwithstanding his mental retardation and its possible relationship to his statement to Mr Walkley about an absence of a criminal history, his limited if any involvement in the offences charged (compared to what he said in the interview), his opposition to the presence of the allegedly untrustworthy Mrs Geia and his preference for his sister, why he spoke to the police even though he said he understood he did not have to and his limited capacity to understand his interview rights, I am unable to accept them.  I do agree with Mr Walkley's opinion at page 4 of his report as follows:

"His thinking was slow but generally on-topic.  His speech was somewhat indistinct but generally he made himself understood.  He was able to interact meaningfully provided the level of interaction was kept at a very easy to understand level."

This is consistent with my view about his responses to questions about the offences.

Mr Walkley administered the Raven's Progressive Matrices Test which is a "very rough measure" and a non-verbal visually presented evaluation of a person's capacity to discern a pattern and use a degree of logic.

Kidner scored 10 out of 60 which places him below the fifth percentile when compared with persons of his age.  His score was comparable to the fifth percentile for children at about the age of seven and a-half years and equates to an IQ of 65-75 "which is the lowest scaled score on this measure".  A score of 19 would have equated to such an IQ.  Kidner's score suggests he is "well and truly below the first percentile".  Mr Walkley considered him to be moderately mentally retarded and his gross intellectual and cognitive capacities are extremely limited.  His low intellect is most likely due to his mother's high use of alcohol in her pregnancy with him.

In cross-examination, Mr Walkley agreed (and this was also my opinion observing Kidner giving evidence) that Kidner was capable of "crafting his answers to his best interests", and for "large portions of the interview he was able to meaningfully respond to most of the questions".  He understood the level of questions and gave responsive answers.  Mr Walkley also agreed that overall the questions were in a simple format that Kidner could understand.  Mr Walkley considered that Kidner would not have been comfortable in the environment in which the interview took place.  He said (pp 74-75):

"HIS HONOUR:  Well, what - what type of environment did you perceive he would normally be used to?-- Well, perhaps not in a - a completely-----

At the canteen?  Conduct the interview there?-- That would be the good place to do it.  But certainly not in a room that was closed with him on one side of the table.  I would certainly ensure that the person that was there with him spent a period - a significant period of time explaining to him what his role was or her role was.  Ensure that he understood what his rights were, make sure all of that was absolutely taken into account.  Ideally that person would have some grounding and ability to determine whether or not his disadvantage was such that his - his, you know, going to give himself own problems in a record of interview.  Have the - have that person have the independence and the self-determination to be able to stop an interview in face of authority figures and - and make sure that the understanding was there.  That sort of thing.

MR ENGLISH:  So, you would be looking towards a support person to help overcome that?-- Very much so.  Yes."

In my view Kidner was not disadvantaged by the interview environment and Mrs Geia did in fact sufficiently look after his interests and balance his otherwise special need or disadvantageous position.  Mr Walkley conceded that notwithstanding what Kidner said to him about Mrs Geia, she could nevertheless have been acting appropriately as a support person.

I think that section 249 Police Powers and Responsibilities Act and sections 34 and 37 of the Responsibilities Code in schedule 10 were sufficiently complied with.  I do not think sufficient questions were asked, as required by section 36 of the Responsibilities Code, to establish Kidner's level of education and understanding.  His level of education is clearly abysmal.  He did however have the assistance of Mrs Geia and she knew he had "always been a bit slow" and was likely to be and in fact apparently was, "very slow in picking up things".  She assisted him on a couple of occasions.

By reference to the Operational Procedures Manual of the Queensland Police Service, as an Aboriginal, Kidner was clearly a person with a special need because of mental and sociological conditions and his extremely limited intellect and the police were required to take necessary action to compensate for that special need and to comply with the relevant legislative requirements (section 6.3.3).

In addition, because of his clearly limited education and intelligence he was to be considered as a person with a reduced capacity to look after and manage his own interests (section 6.3.3).

Compensatory measures include obtaining the assistance of an independent or support person and phrasing questions in a manner compensating for a lack of comprehension or understanding.  I am satisfied that the questions asked about the offences being investigated were generally easy enough for Kidner to understand.  I am satisfied that he was not oppressed or overborne by the conditions under which the interview was conducted (section 6.3.3).

The main issue raised by Mr Walters is whether Mrs Geia provided sufficient assistance to enable Kidner to understand and exercise his legal rights. 

She was required to be able to assist him overcome the condition or circumstance creating the special need.  In his case that was mainly his dull intelligence and limited education.  I am satisfied from listening to him give evidence that realistically he was aware of the likely legal consequences for him should he give answers implicating him in the offences.  He also had a criminal history and as a result probably an understanding about conduct constituting a criminal offence.  Mrs Geia was, I consider, able to safeguard his rights.  While her role was not explained to her as required by section 6.3.4 Operational Procedures Manual I find she had, in this case, and by reason of prior experience in similar situations, a sufficient understanding of her obligations towards Kidner.  I do not believe Kidner when he said he did not ask for Mrs Geia; that is inconsistent with what he said in the interview.  Mrs Geia clearly had an understanding and appreciation of Kidner's dull intelligence sufficient to enable her to look after his interests.  Because she was aware of his limitations I think she was careful to ensure that he understood the questions asked and that his answers reflected that understanding.  In the circumstances of this interview whilst section 6.3.6 Operational Procedures Manual required the police to give preference to a lawyer or representative of the Aboriginal Legal Service as a support person because Kidner had expressed a wish to have Mrs Geia as a support person and, after he had spoken privately to her, he was, in her presence, informed that he had a right to have a lawyer present (he agreed in evidence that was so) and asked if there was anyone in addition to her that he wished to telephone and said there was no-one I am satisfied that the failure to give preference to an Aboriginal Legal Service representative did not disadvantage Kidner or result in any unfairness to him.  The failure of the interviewing police to give preference to a lawyer or representative of Aboriginal Legal Aid over Mrs Geia as a support person did not in my view detract from the advice and assistance Mrs Geia was able to provide to Kidner and did not, I consider, result in such unfairness to him as to warrant exclusion of the interview.  In practical terms the advice Mrs Geia gave him was likely to have been the same as the advice an Aboriginal Legal Service lawyer or representative would have given him.  It is not to the point to speculate that such a person might or should have advised him not to participate at all in the interview.  The same applies should there in fact have been a failure to comply with section 251(2) Police Powers and Responsibilities Act. 

Mrs Geia was a school counsellor at the Palm Island school for eight and a-half of the 10 years Kidner attended that school.  She spoke to him regularly at school but not much outside school hours. 

When she attended for the interview she spoke briefly to Kidner in private.  According to the interview transcript this conversation lasted only about two minutes.  She said in evidence (pp 20,26,28-29,32,33,35&36):

"Did you get to speak with Terrence while the police weren't in the room?-- Yes, I did.

And how long did you speak to him for?-- Just a couple of minutes and asking him, you know, if he knew his rights that he didn’t have to say anything.

Yes?-- That’s all but he insisted that he wanted to.

What did he tell you?-- He said, "I" - "I want to" - "I want to do it," because his sister had asked him to come in and - and give himself up.

All right?-- She didn’t want any trouble.

That’s what he told you?-- Yes.

Okay.  Did you tell him anything else about his rights?-- Yes, I did.

What did you tell him?-- Said that, "You know that you don’t have to say anything," as I would say to many that I sit with.

Was that the only thing you told him?-- Yes.

And that only lasted a few minutes?-- Yes.

What are the rights of a person being interviewed by police?-- Their rights.  So they don't have to go on with anything if they don’t want to.

Mmm?-- And tell them that they don’t have to go on.  If they feel they don’t want to, they - they are free to stop and say they don’t want to continue.

HIS HONOUR:  Or - or take part at all?-- That’s right, yes.

And you know the consequences if somebody says they do something in an interview?-- Well then, they don’t have to continue in giving evidence if they don’t want to.

Now, when you were speaking with Terrence was he capable of understanding his legal rights?-- Yes, I guess he - he knew that.

You said he - you guess he knew that; what - what do you mean by-----?-- Well, I mean, he would've known that because I have explained it.

Do you think he understood it?-- After I explained, yes.

Well, what did you explain to him?-- That he didn’t have to go on.

Mmm-hmm?-- That - did he really want to you know go on with the interview.

Mmm-hmm?-- And his words were he wanted to do it.

Mmm?-- He wanted to continue because his sister had said to him for him to come down and get things right.

Did he sister - did he say to you that his - his sister told him he had to go down?-- Well, she wanted - yes, she - he said she asked him to come down, she didn’t want any trouble; that was the exact words.

Did he have any understanding of the results or the consequences of - of the interview?-- After the interview?

Mmm?-- Yes.

What was that?-- The police explained to him.

No, but before the interview took place?-- Well, you asked me and I just said I explained that to him in the beginning.

But the consequences of the interview?-- He was - he was told all that, even by the police.

What was he told?-- That if anything he would be asked to appear in Court.

When - when did the police tell him that?

HIS HONOUR:  Well, was that said when you were in the interview?-- Yes.

Yes?-- That was.

But, what did you tell him, that he's there today to answer them?-- That if he - he wants to answer the questions, yes, he'd - he'd be - you know, feel free to do so, it was his decision not mine.

You didn’t tell him at all that he had any choice in the matter, did you?-- I did in the beginning, sir.

Where in the tape?-- I did in the beginning and I-----

HIS HONOUR:  No.  I - I think - I-----?-- -----spoke to him before the recording-----

Yes-----?-- -----had come on.

I think that’s what she means.

If I could take you over the page - top of page 11, the officer said, "You look a bit nervous, Terrence." And further down he said, "I understand you might be a little bit nervous."  Did Terrence appear to be nervous to you?-- He seemed okay.

Did you at the time think Terrence looked nervous?-- No.

If that was the case why didn’t you say that he's not nervous?-- Well, why should I say that when he's - he was feeling comfortable - if he was comfortable himself.

HIS HONOUR:  Did he appear comfortable to you?-- Yes, yes.

MR WALTERS:  You - you, yourself, said further down the page, "Don’t be frightened to ask"?-- Yes.

Why did you say that to him?-- Just a manner of expression, and just making him know that if he wanted to ask-----

Mmm-hmm?-- -----me for anything then I'd be happy to answer."

She agreed she had, at the end of the interview, described him as "a bit slow" by which she meant not up to the standard of, behind other children, slow in grasping things at times.  He did not pass his grades at school and could not read or write. 

She said that when she spoke to him after arriving at the police station she made no inquiries as to his understanding of why he was there.  I think that was fairly obvious from what he said to her but if it was not then it would have been apparent shortly after the interview recommenced in the presence of Mrs Geia.  Further he had himself gone to the school to tell the police what happened on the occasion of the riot albeit at the suggestion or urging of a sister. 

When pressed about Kidner's apparent lack of understanding recorded at page 8 of the first transcript, Mrs Geia said

(pp 33,34):

"Well, Mrs Geia, if - if you did that you would think, would you not, looking back, that Terrence would have understood what Egerton had to say?-- Well, as I said, and with all due respect, as a white person Terrence wouldn’t understand the terminology at times.

Did that make you realise, Mrs Geia, that Terrence didn’t understand what you'd told him if - if you'd told him that?-- Well, I think he would understand me better as a black person for what I have said.

You're speaking to-----?-- And that he knew that he didn’t have to go on if he didn’t want to."

I am satisfied notwithstanding his apparent lack of understanding as recorded at page 8 of the first transcript that Kidner knew what the questions would be about.  Earlier in the interview (page 4 first transcript) after Mrs Geia had arrived she was told in the presence of Kidner that the police wanted to ask him questions about what happened "on Friday" the day of the riot.  I do not believe him when he said in evidence that he did not know why he went to the police station, and that he did not know why he was there or what they wanted to talk to him about, and that he did not speak privately with Mrs Geia or remember speaking with her.  He agreed later that he did speak to her privately in the art room and she did tell him what his rights were.  I do not believe him when he said he told Mrs Geia that he did not want to say anything.  Later in cross-examination he said she did tell him he did not have to talk and that he did not tell the police he did not want to talk.  I am satisfied that he went to the police station voluntarily, maybe though at the urging of a sister, to speak about the events of Friday the 26th of November 2004.  In cross-examination he agreed that he knew the police wanted to speak to him about the police station being burnt and about the riot.  He agreed that he went to the police station because he knew the police wanted to talk to him about the riot and that he would get into "trouble" if he told them that he burned down the house.  At one stage he seemed to agree that he had asked for Mrs Geia and then changed his mind.  He said (p 53):

"Did you ask for Pena Geia?-- Well, changed my mind and I wanted my sisters to come down but too late."

In cross-examination he said he was feeling okay and a bit happy in the interview.  He agreed he understood what the police were saying to him when they asked him questions and that they told him that if he did not understand anything he should tell them.  He agreed he did that on occasions. 

In my view the circumstances of this case and the position of Mrs Geia are quite different to those which existed in the case of Richard Poynter about whom I ruled on the 2nd of February 2006.

Kidner was a less than impressive witness.  He is, I consider, more street smart than he lets on and knows more of his rights in a police interview than he was prepared to admit.  He is not as stupid or as ignorant as he endeavoured to portray himself.  His initial evidence that he did not know how many brothers and sisters he had and what the ages of his sisters were was disingenuous and I did not believe him.  I found him to be quite duplicitous.  I thought he made up exculpatory parts of his evidence as he went along.  In my view none of this behaviour could be attributed to his limited intelligence or the related matters referred to by Mr Walkley.  His initial evidence that he did not speak privately to Mrs Geia even caught Mr Walters by surprise and prompted him to remark that that was not his case.  He was transparently dishonest. 

The purposes of the Police Powers and Responsibilities Act include ensuring fairness to and protecting the rights of persons against whom police officers exercise powers under the Act, section 4(e).  Parliament intends that police officers should comply with the Act in exercising powers and performing responsibilities under the Act and a police officer who contravenes the Act is liable to disciplinary and penal consequences, section 5 and R v Cho, unreported, (2001) QCA 196 at paragraph [6].  It is thus important that any failure on the part of interviewing police to comply with their statutory and departmental responsibilities be seriously considered and considered in the context of whether such non-compliance or contravention has resulted in unfairness to the interviewee or raised any other matters relevant to the exercise of the discretion or has led to the interviewee being so placed that he is importuned or taken advantage of unfairly or otherwise by the interviewing police. 

So far as section 251 Police Powers and Responsibilities Act is concerned if in fact, contrary to the conclusion I have already expressed, Kidner was in custody from the time Sergeant Robinson "handed him over" to Senior Constable Egerton and Senior Constable Gehringer the latter were obliged to inform him that a representative of a legal aid organisation would be notified that he was in custody and then to notify or attempt to notify such a representative.  There is no prohibition on interviewing the person unless subsection (2) is first complied with.  Subsection (4) in relation to a support person was, in my view sufficiently complied with and because it was I would not conclude that in those circumstances non-compliance with subsection (2) has resulted in such unfairness to Kidner that it would be unfair to admit the interview in evidence against him.  At the end of the day it is a balancing exercise.  The presence of a support person, rather than notification of a legal aid organisation, was the primary means by which Kidner's special need and position of disadvantage could be compensated for and the imbalance redressed as much as it could be.

Schedule 4 Police Powers and Responsibilities Act defines "support person" for present purposes as an adult chosen by the interviewee, his lawyer or a representative of a legal aid organisation.  Kidner had the former and this was in accordance with section 6.3.4 Operational Procedures Manual which provides that where possible the person with the special need should select an independent person.  Even though Senior Constables Egerton and Gehringer did not consider Kidner to be disadvantaged in section 251(3) terms they nevertheless recognised that because of his Aboriginality it was desirable or necessary for a support person to first speak to him and then, if he wished, after taking advice from that person, to speak to them, for that person to be present during the interview.  That was no doubt because Kidner was by section 6.3.6 Operational Procedures Manual to be considered a person with a special need because of cultural and sociological conditions.  He clearly was in that category. 

Because the interview was about serious offences it fell into the category of an interview which could substantially affect Kidner's rights or liberty requiring greater efforts to address his special need than an interview that would be likely to have only a minor impact - section 6.3.2 Operational Procedures Manual.  In my view Mrs Geia's involvement sufficiently addressed this requirement.  Kidner was not, in terms of section 6.3.2 Operational Procedures Manual capable of looking after or managing his own interests but Mrs Geia was.  In my view she was, in the circumstances of this case, unlike the position in Poynter, able to assist Kidner overcome the conditions or circumstances creating his special need, section 6.3.4 Operational Procedures Manual.  She knew him and knew and understood he was, to use her words, "Very slow in picking up things,"  "not up to standard," "behind,"  "slow in grasping things at times," and she was, in my view, sufficiently able to look after his interests. 

In my view, Mrs Geia knew enough of Kidner as an individual to satisfy herself that he in fact understood his rights and position and to ensure that he was not, because of his special need, disadvantaged by the interview process. 

Notwithstanding that Mrs Geia said she did not inquire of Kidner as to what his understanding was of what he was at the police station for I am satisfied that Kidner himself knew that, knew that it was in relation to his involvement in the events of the 26th of November 2004 and knew that was the reason he went to see the police.

Whilst Mrs Geia could clearly have gone further in what she said to Kidner, including better explaining her role to him and the possible consequences for him of participating in the interview, I am satisfied that he knew why the police wanted to interview him about the events which led him to go to the police station in the first place, knew what the consequences for him could be of speaking to the police and knew that he did not in fact have to speak to them if he did not want to.

Mrs Geia was in terms of section 6.3.3. Operational Procedures manual, able to sufficiently assist Kidner in the exercise of his legal rights.

Likewise, the failure of the police to explain to Kidner what Mrs Geia's role was (as required by section 6.3.4 Operational Procedures Manual) must be considered in the context of Kidner himself having asked for her to be present and the statements made to him by the interviewing police during the interview.  These include the statement at page 8 of the first transcript that Mrs Geia was present as a support person and any time he wanted to ask her something he could, that at page 10 of the first transcript to the effect that if he did not understand what was being said he was to let the police or Mrs Geia know and that at page 11 of the first transcript that at any stage he could talk to Mrs Geia by himself.  That failure did not in my view result in such unfairness to Kidner that it would be unfair to admit the interview in evidence against him.

For similar reasons I do not consider it accurate to describe Mrs Geia as an authority figure or as being on the police side in the interview.  Kidner requested her and she did sufficient to look after his interests.  It is easy to suggest that the police should have done more to explain Mrs Geia's role to her and to Kidner.  However, what they did do in the circumstances was in my opinion, sufficient.

In the circumstances I am satisfied that Kidner voluntarily took part in the interview.  He was, with the assistance of Mrs Geia, able to exercise a free and sufficiently informed choice to speak or remain silent.  His will was not overborne and the circumstances were not such as resulted in him participating in the interview or answering questions that he did not want to answer and it has not been established by the defence that any sufficient basis exists for the exercise of the discretion to exclude the interview.

Any non-compliance with section 251(2) Police Powers and Responsibilities Act assuming it to have had application involved the police not informing Kidner that a representative of the a legal aid organisation would be notified that he was at the police station and then notifying or attempting to notify such a representative.  On the other hand as part of the balancing exercise, he voluntarily attended the police station to speak to the police, albeit at the suggestion of a sister, he was told he could have a lawyer if he wanted, he had the assistance of Mrs Geia whose presence he had requested and he knew he did not have to speak to the police if he did not want to.

The failure by police to specifically explain to Mrs Geia what her role was and the failure of police to give preference to a lawyer or representative of the Aboriginal Legal Service as a support person must be viewed in the context of what knowledge Mrs Geia in any event had of her role as a support person and to Kidner's preference for her over a lawyer.

In my view any non-compliance by the interviewing police with statutory and departmental requirements was not deliberate or reckless nor did a they consciously act unlawfully.  They thought they were doing the right thing by Kidner.  Any unlawfulness on their part was of a comparatively minor nature compared to the serious nature of the crimes they were investigating and about which Kidner wished to speak to them.  None of the circumstances or evidence relating to the interview, the conduct of the police, or Kidner personally, in my view, "throw doubt on the cogency or reliability" of his confessional statements.  In my view he was "capable of acting in what appeared to be his perception of his best interests in answering questions" notwithstanding his limited intellect and the other matters referred to by Mr Walkley and Mr Walters.

None of Kidner's answers, in my view, fall into that category of "gratuitous concurrence" about which Atkinson J cautioned in R v. D (2003) 139 A Crim R 509 at 512, and that includes those answers about Mango Avenue and Police Lane at page 41 of the first transcript.

In my view the answers given by Kidner to the questions asked of him were not obtained by such an illegal, improper or unfair manner as to lead to unfairness to him were they admitted, or to also or separately require their exclusion on any relevant public policy grounds.

See variously R v. Swaffield (1998) 192 CLR 159, R v. Brown, unreported, (2006) QCA 136 at paragraph [12], Duke v. R (1989) 180 CLR 508 at 513, and Bunning v. Cross (1978) 141 CLR 54 at 77-81.

In the circumstances I will not exclude the interview.

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