DISTRICT COURT OF QUEENSLAND

1. [1]
   The hearing of this application took place in Mount Isa, but the applicant and her solicitor were able to attend the hearing by video link from Normanton, as they are this afternoon when I give my decision.

2. [2]
   The applicant has been charged with unlawfully wounding her partner at Normanton on the 21^st of September 2013. Police were called to 38 Sutherland Street, Normanton on the night of the 21^st of September 2013, where they saw the applicant’s injured partner and the applicant. The applicant was clearly intoxicated. A field recording (the “incident recording”) was made of the police’s interaction with the applicant that night. She was taken to the Normanton police station, where she was taken into custody under the provisions of the Domestic Violence Family Protection Act 1989 and released on conditions.

3. [3]
   The next afternoon, on Sunday, the 22^nd of September 2013, Constable Williams and Sergeant Row attended 38 Sutherland Street, where ultimately the applicant was arrested and from where she was taken again to the Normanton Police Station. This interaction between the applicant and the police was recorded as the “arrest recording”. At the police station the applicant took part in a recorded interview. This recording was both visual and audio. In that interview the applicant makes admissions in relation to the offence.

4. [4]
   This application is for a ruling excluding both the incident recording made on the 21^st of September and the recorded interview made on the 22^nd of September from the evidence at the applicant’s trial. In fact, the respondent only intends to rely upon the recorded interview at the trial, but both the incident and the arrest recordings were played during the hearing, along with the recorded formal interview so as to give a complete picture of the applicant’s dealings with the police over the two days.

5. [5]
   The applicant is an Aboriginal woman born on the 19^th of July 1966 at Jessievale Station near Cloncurry. She lives in Normanton, a small and remote western Queensland town with a large Aboriginal population. At the watch-house, at around 2 pm on the 22^nd of September 2013 in answer to standard intake questions the applicant told police that she suffers from type 1 diabetes and asthma and that she had consumed seven to eight cans of XXXX Gold in the last 24 hours. In the recorded interview the applicant told police she achieved only a year 9 level of schooling, she could read and write English and that she was not currently employed.

6. [6]
   It is not submitted that the applicant’s responses to the police questions during the recorded interview were not voluntary. Rather, that the failure of the police to comply with the law with respect to the questioning of Aboriginal people makes the admission of the record of interview into evidence at the applicant’s trial unfair and contrary to public policy. The exclusion of the evidence of the record of interview is, therefore, a matter of my discretion and the onus is on the applicant to show that there is reason for the evidence to be excluded. ^[1]

7. [7]
   Although the applicant does make an admission to the police during her first interaction with them at the scene of the alleged offence, it is clear that she is heavily intoxicated. Indeed, towards the end of the recording Constable Williams says, “She is maggoted, so we can’t really question her anyway.” Rightly, the Prosecution concedes it cannot rely on any admissions made by the applicant at this time.

8. [8]
   During the processing of the applicant in the watch-house prior to recording the interview on the afternoon of the following day, the applicant returned a reading of .051 per cent alcohol when breath tested.

9. [9]
   Constable Williams, as the investigating officer, conducted the interview with the applicant. Sergeant Row, although he was the senior officer, was only there as a “corroborator”. During the first several minutes of the interview Constable Williams reads out pro forma instructions and questions to the applicant. She gives, usually, one word responses to questions and when asked if she understands, replies in the affirmative. After telling the applicant that she is under arrest and in police custody the following exchange occurs.

10. [10]
    Constable Williams:

Before I ask you any questions, okay, I just want to, ah, remind you that you have the right to remain silent. Okay. That means you don’t have to say anything, answer any questions or make any statement unless you wish to do so. Okay. However, if you do say something or make a statement it may be recorded and later used as evidence. Do you understand that?

11. [11]
    I have quoted there from the transcript. The interview itself was played during the hearing of the application and I should note that the transcript cannot and does not reflect the reasonably substantial silences which did occur on occasions before the applicant responds to the police questioning.

12. [12]
    It is marked that during the explanation of the applicant’s right to silence by both Constable Williams and Sergeant Row neither looks at or makes eye contact with the applicant. Each officer is looking down onto the desk, presumably at the pro forma information they are reading out. Constable Williams, in particular, delivers the information and asks the questions in a rapid manner, which gives the applicant little opportunity to absorb, let alone understand, what he is saying. The applicant looks blank and her affirmative answers appear to be gratuitous. Clearly when she is advised of her right to silence and is asked, “What does that mean to you?” her reply, “I gotta make a statement” betrays a complete lack of understanding of her right.

13. [13]
    Even when her right to silence is explained again, her short affirmative answers and the accompanying silences illustrate a very uncertain understanding of her right. Her responses at this stage of the interview contrast markedly with her responses later when she readily tells the story of what occurred the night before. Then, she is animated and forthcoming and apparently has no trouble understanding the questions, which are simple and direct, and articulating answers. Objectively, it’s impossible to have confidence that the applicant understood her right to silence, her right to seek legal advice or to contact a friend or relative or the consequences of taking part in the interview. The applicant’s lack of understanding of these matters should have been clear to both Constable Williams and Sergeant Row.

14. [14]
    Section 7 of the Police Powers and Responsibilities Act, which I’ll refer to as the PPRA from now on, notes that it is Parliament’s intention that police officers should comply with the Act. Section 420 of the Act is a special provision of the PPRA which applies when police wish to conduct interviews with Aboriginal people. Section 420 is headed Questioning of Aboriginal People and Torres Strait Islanders. It reads, 420(1):

This section applies if –

(a) a police officer wants to question a relevant person; and

(b) the police officer reasonably suspects the person is an adult Aborigine or Torres Strait Islander.

15. [15]
    Schedule 9 of the Police Powers and Responsibilities Regulations 2012 is the Responsibilities Code. Section 25 of that Code provides as follows. It’s headed Questioning of Aboriginal People and Torres Strait Islanders.

16. [16]
    The Queensland Police Service Operations and Procedures Manual states as policy at 6.3.6:

Persons of Aboriginal and Torres Strait Islander descent should be considered people with a special need because of certain cultural and sociological conditions. When an officer intends to question an Aboriginal person or Torres Strait Islander, whether as a witness or a suspect, the existence of a need should be assumed until the contrary is clearly established, using the criteria set out in section 6.3.2, “establishing whether a special need exists of this chapter.”

17. [17]
    The Manual goes on to order:

Officers in charge of stations or establishments are to compile and maintain a list of local, Aboriginal and Torres Strait Islander legal service contacts.

18. [18]
    Under section 3.19 of the Queensland Police Service Digital Electronic Recording of Interviews and Evidence Manual, which is headed The Anunga Rules – Aboriginal and Torres Strait Islanders guidelines are established:

19. [19]
    Support persons are referred to in section 3.8 of the Digital Electronic Recording of Interviews and Evidence Manual, so far as Aboriginal persons are concerned, as follows:

If an officer reasonably suspects a person is:

1. (i)
   an adult Aborigine or Torres Strait Islander and that person has not, by a written or electronically recorded waiver, expressly and voluntarily waived his or her right to have a support person present the officer must not question the person about his or her involvement in the commission of an indictable offence unless:

1. (i)
   a support person is present while the person is being questioned; and

2. (ii)
   before questioning starts the officer has, if practicable, allowed the person to speak to the support person in circumstances in which the conversation will not be overheard.

20. [20]
    Both Constable Williams and Sergeant Row gave evidence at the hearing of this application. Constable Williams had been a police officer for three years and had worked in Normanton from May 2013. Prior to that he had worked in Mount Isa for nine months. He responded to the call to 38 Sutherland Street on the night of the 21^st of September and attended there again the next day. He arrested the applicant and was the investigating officer. He had not had any direct dealings with the applicant previously.

21. [21]
    So far as the applicant’s appearance and responses to police on the 22^nd of September 2013 were concerned Constable Williams did not notice any indicia which would indicate she was affected by alcohol. She responded clearly to questions and instructions and appeared to understand them. His evidence was, (at page 1-25 of the transcript, line 41):

Before the record of interview all of my dealings with the defendant led me to believe that she understood why she was there. She understood the questions and the conversation that she’d been involved in with us, and she was able to respond to all we had asked of her. She was able to articulate her answers reasonably well.

22. [22]
    He admitted that he did not offer to obtain a support person for the applicant and gave her no opportunity to speak to one. He had never seen a list of support persons at the Normanton Police Station and had never had cause to locate a support person for anyone he had interviewed in the past. He did not contact the Aboriginal and Torres Strait Islander Legal Service (“ATSILS”) prior to interviewing the applicant, although there was nothing preventing him from doing so. He was aware that ATSILS has a solicitor who resides in Normanton, and there are after hours telephone numbers for ATSILS in Normanton, Mount Isa and a state-wide 1800 telephone number.

23. [23]
    He admitted that he did not practically test the applicant’s ability to read English, and did not ask if she completed grade 9 or what school she went to, or if she had ever been employed. He had never heard of Aboriginal English or the phenomenon of “gratuitous concurrence”. Apart from one lecture at the Police Academy delivered by an “ATSI representative”, largely about “cultural considerations”, Constable Williams had received very little training about Aboriginal or Torres Strait Islander people during his time in the police force.

24. [24]
    I should say that “gratuitous concurrence” is explained in the Supreme Court of Queensland Equal Treatment Bench Book 2005 at paragraph 9.7.3 as follows:

Gratuitous concurrence refers to the tendency of a speaker to agree with a proposition put to him or her regardless of whether the speaker truly agrees with it or even understands the proposition.

25. [25]
    Based on the dealings he had with the applicant on the 21^st and 22^nd of September 2013, and her answers in the recorded interview, Constable Williams was persuaded that the applicant was, “Not at a disadvantage in comparison with members of the Australian community generally.”^[2]

26. [26]
    Sergeant Row has been in the Queensland Police Service for 10 years, and prior to that he was in the New South Wales police service for two years. As at the date of hearing he had been working in Normanton for “just over a year”. He had had no previous dealings with the applicant other than possibly in a “group situation”.

27. [27]
    He did not attend at 38 Sutherland Street on the 21^st of September, and, on the 22^nd of September, he noted that the applicant did not appear to be affected by any alcohol or drugs. In fact, he was surprised that she returned a positive breath test. He described the applicant at the police station as being “very compliant” and said she “seemed comfortable with us”. He asked the applicant if she wanted to call David Castor, the ATSILS representative residing in Normanton, and she shook her head and said no. When answering questions during the interview he described the applicant as, “She was fine. Yeah. She answered them clearly – and pretty happy to talk. And she was – yeah. She was fine.”

28. [28]
    Sergeant Row said that he had not had cause to contact a support person for a defendant, as he hadn’t been the arresting officer in a situation where that had been needed. Sergeant Row said that he was aware of the relevant provisions of the PPRA, the Police Powers and Responsibilities Regulations and the Operational Procedures Manual. He had heard of The Anunga Rules and of Aboriginal English, but not of the Supreme Court Equal Treatment Bench Book or the phenomenon of “gratuitous concurrence”. Like Constable Williams, Sergeant Row’s evidence was that neither in New South Wales or Queensland had he had any specific training as regards to dealing with Indigenous Australians.

29. [29]
    Sergeant Row said he determined that the applicant was not at a disadvantage in comparison with members of the Australian community generally. His explanation for that determination was as follows. This is at page 1-48 of the transcript, line 5 – 6:

Yeah. Prior to the interview and during the interview I didn’t consider her to be disadvantaged in any way. I found that she – she’s quite an affable person. We had quite a good conversation. I found that she spoke well. She obviously took quite a bit of pride in her signature in the watchhouse, which I thought was, you know, good. It indicated she took a bit of pride in the way she writes and things like that. Yeah. Just the fact that I sat her down in the dayroom and offered her a cup of tea and – and conversed with her, as I would with any member of the public. I – I didn’t believe that she was disadvantaged at all. No.

30. [30]
    In determining this application and exercising my discretion I do have regard to the principles established by the High Court in R v Swaffield (1989) 192 CLR 159; in Bunning v Cross (1978) 19 ALR 641; and R v Ireland, (1970) 126 CLR 321. R v LR (2006) 1 Qd R is authority for the proposition that where a record of interview is undertaken in contravention of the provisions of the PPRA, a discretion to exclude it on the grounds of unfairness is enlivened.

31. [31]
    R v Sailor, [2012] QCA 246 was a case in which a determination by a police officer that a Torres Strait Islander suspect was not at a disadvantage was found to be reasonably based. But in that case, the determination was made as a result of inquiries made of others, not the suspect, prior to the interview. I have also gained assistance from the comprehensive and detailed review of the relevant authorities made by Atkinson J in the recent Supreme Court case of R v Tietie, and Wong-Kee, [2011] QSC 166.

32. [32]
    On the 22^nd of September 2013, Constable Williams and Sergeant Row were dealing with a 47 year old Aboriginal woman who, as a result of an alcohol-fuelled domestic violence incidence the night before, they suspected, had unlawfully wounded her partner with a knife. She was not known to either of them previously. Prior to formally interviewing her, they had established she suffered from type 1 diabetes and asthma and was probably not taking medication for those conditions. Although she appeared to be free of the indicia of being affected by alcohol, she nevertheless returned a blood alcohol content reading of .051 when breath tested. She said that she had consumed seven or eight cans of XXXX Gold in the previous 24 hours.

33. [33]
    No questions were asked, as required by section 25 of Responsibilities Code, to establish her level of education or understanding. Both police officers relied at least partially on answers given by the applicant during the recorded interview to support their conclusion that she was not disadvantaged. Each of them failed to appreciate that section 420 of the PPRA makes it incumbent on them to make that determination prior to commencing the formal interview. A suspicion in those circumstances that the application was “not at a disadvantage in comparison with members of the Australian community generally” could not possibly be reasonably based. There was simply no evidence on which that conclusion could reasonably be drawn.

34. [34]
    Neither police officer appeared to have any understanding of the reasons for the special provisions in the legislation governing the questioning of Indigenous Australians and, particularly, why an Indigenous Australian may be at a disadvantage when dealing with police and particularly when being questioned in relation to a serious indictable offence. Very disappointingly, it seems neither police officer had received appropriate training in this regard.

35. [35]
    Section 420 of the PPRA was not complied with in this case in two respects. Firstly, the applicant was not informed that a representative of a legal aid organisation would be notified that she was in custody for the offence of unlawful wounding and no such representative was, in fact, notified. Secondly, the applicant was not given the opportunity to speak to a support person before questioning and no support person was present while she was being questioned.

36. [36]
    The issue, then, is whether as a result of the failure to comply with the law, I should exercise my discretion to exclude the formal record of interview, either on the grounds of unfairness to the applicant or on public policy grounds or, indeed, on both grounds. Firstly, there is no evidence that either police officer deliberately or in bad faith ignored the provisions of section 420 or consciously appreciated that they were acting contrary to the law. Most likely, their lack of appropriate training meant that they did not turn their minds to the real reasons for the existence of that provision of the law and take the steps they should have taken to comply with it.

37. [37]
    Secondly, although the offence of unlawful wounding is of its nature a serious offence and the knife used by the applicant, a photograph of which was tendered in evidence at the hearing, was, no doubt, capable of inflicting a very serious injury, the actual injury was a relatively minor one. During the hearing, the applicant’s partner was said to have suffered a wound to his chest, which was 20 millimetres long and 20 millimetres deep. He was treated and the wound repaired using an adhesive dressing.

38. [38]
    The use of a knife in the context of domestic violence is, of course, a very serious matter and there is a real public interest in prosecuting those who do so. However, fortunately, in this particular case, the wound was relatively minor. There are also, though, important public policy concerns raised here, not only with respect to the compliance by the police with the provision of the PPRA and other relevant QPS orders and directions, but also the wider concern regarding the lack of appropriate training and instruction for police, particularly those who work in towns and communities in which there are large numbers of Indigenous Australians.

39. [39]
    Thirdly, reliability of the applicant’s admissions is a relevant factor. Essentially, there’s no reason to suspect that her statements against interest in the recorded interview are unreliable. It is hard to assess whether she would have made such admissions if she had had legal advice or the assistance of a support person. One would have to suspect not. In all likelihood, the statements against interest were made as a result of the police officers in this case failing to comply with the law. The applicant’s responses to police, when advised of her rights during the recorded interview, leave an overwhelming suspicion that she did not properly understand her rights, particularly her right to silence. There was no impediment whatsoever to the police officers concerned contacting ATSILS and/or a support person for the applicant.

40. [40]
    In weighing up the competing considerations, I am satisfied that it would be both unfair to the applicant and contrary to public policy to admit the recorded interview between the applicant and police, which occurred on the 22^nd of September 2013, at her trial. It would be unfair to the applicant, who was deprived of the benefit of both legal advice and a support person and, most likely, failed to understand her rights, particularly her right to silence. It would be contrary to public policy in that legislative provisions and detailed police operational instructions, which have been put in place to counter the recognised and significant disadvantage very often suffered by Indigenous Australians, was clearly not implemented.

41. [41]
    The order I make, then, is that the interview be excluded and the incident recording also be excluded from evidence at the applicant’s trial.