R v Ngakyunkwokka[2021] QSCPR 11

SUPREME COURT OF QUEENSLAND

1. [1]
   HENRY J: The applicant and SB are charged with the murder of Austin Woolla on 1 January 2020 at Aurukun, a remote Indigenous community on Cape York.^[1]
2. [2]
   The applicant applies for an order to exclude from evidence at his trial an interview by police with him, recorded in Cairns on 3 January 2020. 
3. [3]
   By that point the applicant, an 18 year old Indigenous male from Aurukun, had been remanded in custody on the charge of murder.  Yet police interviewed him in custody, without notifying his lawyer and in the absence of a support person.
4. [4]
   The conduct of the interview breached provisions of the Police Powers and Responsibilities Act 2000 (Qld) (“PPRA”) and Police Responsibilities Code 2012 (“PR Code”), designed to safeguard the rights of an interviewee in the applicant’s position.  The interview should be excluded.

The fatal event

5. [5]
   Mr Woolla died from an injury inflicted when the applicant stabbed his rib area from behind during a melee between rival groups at Aurukun.  The event occurred in an area of open parkland abutting fenced backyards.  It is recorded with reasonable clarity on CCTV footage. The recording leaves no doubt an assailant, readily identified by other evidence as being the applicant, ran up to and fatally stabbed Mr Woolla from behind.
6. [6]
   The footage shows a variety of males, including Mr Woolla, spaced about the area, positioned as if a confrontation between two groups was developing.^[2]  Suddenly, the males moved in different directions.  As Mr Woolla moved, SB ran from a rear fence, following a direction intersecting with the direction in which Mr Woolla was moving.  Meanwhile the applicant also came from the rear fence-line, following a direction around to the rear of Mr Woolla, whose attention appeared to be concerned with the looming confrontation between himself and SB.  Mr Woolla was armed with a bar and SB with a garden pick.  SB cast the pick away and threw a punch.  As that confrontation commenced the applicant arrived upon Mr Woolla from the rear, armed with a knife.  The applicant stabbed Mr Woolla once from behind.  The protagonists then moved apart in different directions. Mr Woolla shortly went to ground in consequence of having been stabbed.

The applicant enters police custody

7. [7]
   It was soon realised Mr Woolla’s injury was fatal, fuelling mob agitation.  The applicant and SB, who had both taken to the bush in fear of retribution, were ultimately taken into police custody at the Aurukun access road truck stop by arrangement with their families.  They were by then in company with their cultural grandfather, Bruce Martin.  Rather than take the applicant and SB to the police station at Aurukun where there were safety concerns for them, it was decided to transport them to Weipa Police Station.

An uncontroversial interview process at Weipa

8. [8]
   At 3.12 am on 2 January 2020 Det Sen Const Carter of the Aurukun Police Criminal Investigation Branch (“CIB”) and Det Sen Const Russell of the Weipa CIB commenced a recorded interview with the applicant at Weipa Police Station.  Mr Martin was present as a support person.  The interview did not advance past preliminary explanations and queries, ceasing at 3.28 am, after the applicant mentioned he was tired and wanted to sleep. 
9. [9]
   The conduct of the interviewing police at Weipa was uncontroversial.  They facilitated the presence of a support person and considered a lawyer should be notified.  As to the latter, the preliminaries of that aborted interview included the following exchange:

“SEN CONST CARTER:  No?  So you asked at the time, um 9.39 yesterday, you asked for your, ah for Bruce to be here, to be a support person for you.

NGAKYUNKWOKKA:  Yeah.

SEN CONST CARTER:  Um, are you happy to have Bruce here as a support person for you?

NGAKYUNKWOKKA:  Yeah.

SEN CONST CARTER:  Yep, okay.  Um, as you’ve not arranged for a lawyer to be present, a legal organisation will be notified that you’re here to be questioned about your involvement in an indictable offence.  Okay?

NGAKYUNKWOKKA:  Yeah.

SEN CONST CARTER:  So we’ll do that anyway.

MARTIN:  So can I just clarify, clarify?

SEN CONST CARTER:  Yep.

MARTIN:  So you, you understand what that means, Kyle, is you don’t have to call the lawyer, these guys, they, they will let Legal Aid know that you’re here as soon as they can, um and l -, a representative from Legal Aid will be in touch.  Is that right?

SEN CONST CARTER:  It’ll be A-T-S-I-L-S that we speak to.

MARTIN:  A-, A-T-S-I-L-S, sorry, yeah.

SEN CONST CARTER:  Yeah, Aboriginal and Torres Strait Islander Legal Service, yep.

MARTIN:  Yep.

SEN CONST CARTER:  We’ll call them.”^[3]  (emphasis added)

10. [10]
    The above emphasised explanation that a legal aid organisation would be notified was doubtless prompted by the obligation to do so pursuant to s 420 PPRA, indeed it replicates the form of words required by s 25(4) PR Code contained at sch 9 of Police Powers and Responsibilities Regulation 2012.  Those provisions, dealing with the questioning of Aboriginal people and Torres Strait Islanders, are dealt with below.

The ensuing events

11. [11]
    The applicant was charged with murder at the conclusion of the interview in Weipa.
12. [12]
    The police evidently did make contact with the Aboriginal and Torres Strait Islander Legal Service (“ATSILS”) because the Queensland Police Service custody events log of 2 January 2020 for the applicant reveals that at 8.33 am the applicant spoke with ATSILS by telephone for approximately three minutes.  There must have thereafter followed the applicant’s first court appearance in respect of the matter, probably by video-link, for the log recorded at 10.10 am that a court had ordered he be remanded in custody.
13. [13]
    The applicant was transported to the Cairns Watchhouse.  While being held there on 3 January he asked to be interviewed and Watchhouse staff contacted local detectives.
14. [14]
    The recorded interview the subject of the present application was conducted on the afternoon of Friday, 3 January 2020 from 4.47 pm to 5.30 pm.  The interview was conducted by a detective sergeant and plain-clothes constable from the Cairns Criminal Investigation Branch.

The issues

15. [15]
    The applicant’s counsel submits the interview ought be excluded from evidence at the trial in the exercise of:

3. “a.
   “the unfairness discretion”: on the basis that the admissions made by the applicant were unfairly obtained; and

3. b.
   “the public policy discretion”; on the basis that curial approval should not be given to the unlawful conduct of the police in the unique circumstances of this case.”^[4]

16. [16]
    The respondent does not concede there was a breach of the PPRA or PR Code and contends that, even if there was, the interview should not be excluded given the seriousness of the charge, the fact the applicant volunteered to be interviewed and the apparent reliability of his answers during the interview.

Reliability

17. [17]
    There is substance to the respondent’s point as to apparent reliability. 
18. [18]
    While the questioning as to the applicant’s understanding of his rights was inadequate – a point explained below – the questioning about the actual events is less concerning. There were some objectionable questions, but they and their answers could be readily edited from the interview if it were admitted into evidence and do not bear upon the apparent reliability of the below summarised information.  There were some questions which received unresponsive answers but as much is apparent.  On the whole however, it appears the applicant had and exercised an opportunity to provide information about what occurred and that information seems reliable.
19. [19]
    In summary the information provided by the applicant during the interview was:

• Mr Woolla and others had earlier chased the applicant’s nephews and niece with a weapon and hit the applicant’s cousin/brother with a rock on the back of the head. 
• Twenty or thirty people were involved in the ensuing events. 
• The applicant ran up and stabbed Mr Woolla once and “took off”. 
• When asked if Mr Woolla had assaulted him the applicant responded, “No.  No, like he was gonna assault my cousin/brother.”
• When later asked why he stabbed Mr Woolla he said, “I don’t know.  I think I was angry at him.”  He was then asked if he deliberately aimed to stab Mr Woolla in the rib area and responded, “Yeah, like I was trying to stab him here and he had a bar like that, he was ready to hit [SB].” 
• He was later asked what he thought would happen when he stabbed Mr Woolla and responded, “Like, I don’t know like I didn’t mean to like kill him, you know, like I just, like I was gonna give him a lesson, you know.”

20. [20]
    The upshot is the applicant admitted to stabbing Mr Woolla with apparently mixed, though not necessarily mutually exclusive, motives, namely revenge and or aiding in self-defence.
21. [21]
    The applicant’s description in the interview of that part of events captured by CCTV footage is reliable because it is consistent with the footage, including that Mr Woolla was armed and apparently ready to hit SB.  The footage cannot of course assist with the reliability or meaning of the applicant’s answers about his motivation in stabbing Mr Woolla.  The meaning of those answers was not meaningfully pursued in other questioning, as perhaps it may have been with the assistance of a lawyer or support person.  However, the answers which were given are not so lacking in meaning as to suggest unreliability.

An interview the applicant thought he had to do

22. [22]
    Moving to the respondent’s point about the applicant having volunteered to be interviewed, there is ample uncontested evidence the applicant requested that the interview occur.
23. [23]
    Constable Nikita Carnes deposed that when she commenced her shift working in the Cairns Watchhouse at 2 pm on 3 January 2020, an officer who was terminating his shift told her that the “male in cell ISO 1 wished to speak to police in relation to an incident that occurred in Aurukun a few days prior”.  The cell in question was an isolation cell in which one prisoner was held; that prisoner was the applicant.  Constable Carnes deposed that a short time later:

“As I was doing the roll call, the male in cell ISO 1 asked if he was able to speak to police, I clarified if he meant interview, to which he said yes.

I advised I would speak with the Sergeant when I could.”^[5]

24. [24]
    Jeannette O'Reilly, then a Constable working in the Cairns Watchhouse, deposes that in her afternoon rounds on 3 January 2020 she was passing an isolation cell in which the applicant was held alone and he called out to her.  She deposed:

“The male said words to the effect of wanting to interview with police/detectives.

I remember this distinctively because I believed the male had been arrested for murder so it stuck in my mind.

I said words to the effect of “I will contact them for you”.”^[6]

25. [25]
    Constable O'Reilly subsequently spoke with the shift supervisor who instructed her to call the Criminal Investigation Branch.  She did so, informing PC Const Parish that the applicant “wanted to speak with Detectives to interview”.  In consequence of this, Det Sgt McLeish and PC Const Parish attended the Watchhouse and conducted the interview in question.
26. [26]
    It is scarcely surprising that Jeanette O'Reilly remembers her conversation with the applicant distinctively by reason of the fact the applicant had been arrested for murder.  It would strike any police officer as being at least curious that a person already charged with murder and already remanded in custody on that charge would, if making a choice informed by a proper understanding of the person’s rights, seek to be interviewed by officers from the very agency which had charged the person.
27. [27]
    Remarkably, there is no evidence any police officer asked the applicant why he wanted to be interviewed.  Furthermore, there is nothing in the content of the ensuing interview which explains why, given the applicant had already been charged, he would have wanted to be interviewed, if he was exercising a choice informed by a proper understanding of his rights. 
28. [28]
    As the above summary of the interview shows, the applicant admitted two motives for the stabbing – one helpful to him, one helpful to the prosecution.  His answers involved no obviously revelatory information likely to lead to the charge being dropped.  Nor did his answers suggest he was so guilt-ridden that his conscience was driving him to speak about the events.  Nor did he attempt to have the charge downgraded or dropped by offering to turn prosecution witness against his co-accused.  In short, the case involves none of the foreseeable explanations for why a prisoner on remand, with a proper understanding of the prisoner’s rights, might, contrary to ordinary expectations, want to be interviewed by police.
29. [29]
    As will be seen, a possible explanation for the applicant requesting to be interviewed is that he wrongly thought doing the interview was a necessary part of the process to which he was subject; something he had to do sooner or later.
30. [30]
    The interviewing detectives approached the applicant in his cell at 4.05 pm on 3 January 2020, recording their introductory conversation with him.  The following exchange is recorded after the police introduced themselves:

“SGT McLEISH:  Hey um, someone said you wanted to have a chat with us.  Is that right, or---

NGAKYUNKWOKKA:  Yeah.

SGT McLEISH: What do you want to talk about, mate?

NGAKYUNKWOKKA:  Um, I ha[indistinct] in Aurukun.

SGT McLEISH:  What happened up at?

NGAKYUNKWOKKA:  Um, ah, interview.

SGT McLEISH:  You never had an interview?

NGAKYUNKWOKKA:  No.

SGT McLEISH:  So you obviously want to talk about what happened up at Aurukun there?  Right.  Well, we can do that mate, and what I’ll do is we’ll set up a little room here and I’ll put some tapes on, we’ll do a proper interview.  I’m gonna give you your cautions and your rights and we ask you, you know, what happened, basically.  So, but.

NGAKYUNKWOKKA:  Yeah.

...”^[7][8]  (emphasis added)

31. [31]
    The recording of the highlighted exchange above is, in parts, difficult to understand.  That it prompted Det Sgt McLeish to say “You never had an interview?” raised the possibility, at least from Det Sgt McLeish’s perspective, that the applicant mistakenly thought it was necessary he have an interview, not having done the earlier interview at Weipa. 
32. [32]
    That this was more than a possibility is evidenced by a number of passages in the ensuing formal recorded interview.  After preliminary enquiries and cautions were made in that interview, the following exchange occurred:

“SGT McLEISH:  Okay.  Alright.  Um, Kyle, like I said before the reason me and Mitch are here to have a chat with you is because you requested us to be here, so what did you want to tell us, mate?

NGAKYUNKWOKKA:  Ah, I, the incident happened in Aurukun ‘cause um I didn’t do any interview at Weipa.

SGT McLEISH:  Yeah.

CON PARISH:  Yeah.

NGAKYUNKWOKKA:  With ah Detective—

SGT McLEISH:  So you didn’t do an interview in Weipa after the incident?

NGAKYUNKWOKKA:  Yeah.

SGT McLEISH:  Okay.  So you want to do an interview now.  Is that right?

NGAKYUNKWOKKA:  Yeah.

SGT McLEISH:  Okay.  Is there any reason you didn’t do the interview up at Weipa?

NGAKYUNKWOKKA:  Ah ‘cause I was ah, ‘cause I was real tired you know.”^[9]  (emphasis added)

33. [33]
    The emphasised words above show the applicant attached causal significance to the fact he had not proceeded with the interview at Weipa, in explanation of him wanting to talk to the police.
34. [34]
    Further, towards the conclusion of the interview there occurred this exchange:

“SGT McLEISH:  Okay.  Um, have you taken part in this interview of your own free will?

NGAKYUNKWOKKA:  Sorry?

SGT McLEISH:  Did you do this interview because you wanted to do this interview?

NGAKYUNKWOKKA:  Yeah.

SGT McLEISH:  No police officer forced you in any way, we didn’t threaten you in any way?

NGAKYUNKWOKKA:  No, ‘cause I can do my interview.

SGT McLEISH:  Yeah. So you just wanted to do your interview—

NGAKYUNKWOKKA:  Yeah.

SGT McLEISH:  And tell us what happened?

NGAKYUNKWOKKA:  Yeah.”^[10]  (emphasis added)

35. [35]
    The affirmative answers to the final two quoted questions are of little value, given the questions were leading questions.  However, the emphasised response in the passage above again shows the applicant in some way perceived it was necessary that, as he put it, “I can do my interview”. 
36. [36]
    This possibility arises as an obvious inference on the known facts.  Admittedly, there is no direct evidence of it. But that could only have come from the applicant and no evidence was adduced from him. The respondent submitted the absence of such evidence from the applicant should preclude me from concluding that he thought doing an interview was necessary.
37. [37]
    Having regard to the applicant’s circumstances as a defendant, I do not regard absence of evidence from him as detracting from the apparent force of the above inference.  While defendants giving evidence on a voir dire about the admissibility of an interview might in some circumstances legitimately refuse to answer questions admissible against them on their trial, the combination of issues here would have made legitimate refusal difficult.^[11]  The respondent would, for example, have been entitled to explore the facts of the alleged offence to bolster the otherwise seemingly weak inference that the applicant was driven by a guilty conscience.  The fact the applicant did not give evidence in the application is thus readily explicable as consistent with him preserving his rights.  It is a neutral fact.  The matter falls for consideration based on such evidence of the circumstances as is before me.
38. [38]
    The known evidence readily supports the inference that the applicant requested to be interviewed because he erroneously believed that was a necessary part of the process he had to complete consequent upon his arrest.  This presents as by far the most obvious explanation of what occurred.  On the known facts it is more likely than not that that is what did happen.  
39. [39]
    In reaching that conclusion I remain conscious of the possibility the applicant’s conscience drove him to want to be interviewed by police and that the apparent absence of evidence articulating or apparently exhibiting regret in his ensuing account was a product of his inhibited capacity for English expression or cultural reluctance. However that apparent absence of evidence contrasts with the positive presence of evidence in support of the conclusion I have drawn.

The need for safeguards for disadvantaged suspects

40. [40]
    Even if it was not open to conclude, as I have, that the applicant erroneously believed an interview had to be done, then at the very least the real possibility he held such a belief exposes how important it was that the interviewing police complied with laws designed to safeguard the rights of potentially disadvantaged suspects.
41. [41]
    That persons in a position of disadvantage may not have sufficient understanding to exercise their rights in a properly informed way is the reason why the common law, through measures such as the Anunga Rules,^[12]and later the legislature, through the PPRA and PR Code, sought to protect Aboriginal and Torres Strait Islander interviewees from such misunderstandings.  They are measures designed to counter the effect of the power imbalance between police officer and interviewee, particularly interviewees in police custody – an imbalance known to cause some Indigenous persons to respond in the way in which they think the questioner wants.^[13] 
42. [42]
    The measures are also designed to counter other communication disadvantages which many Indigenous people experience when questioned by police.  Those disadvantages include:

• English may not be the interviewee’s first language;
• even if the interviewee appears to communicate in English, it may not be appreciated the interviewee is speaking a form of English known as Aboriginal English, in which words and expressions carry a meaning different than such words or expressions carry in English;
• the interviewee’s use of non-verbal communication differs from that used and understood by many non-Indigenous people, for example, sign language and gestures which may not be readily detected or understood, avoidance of eye contact which reflects not guilt but politeness and deference to authority, and silence which may be misinterpreted as evasiveness, may reflect a lack of understanding or lack of authority to speak on a topic or embarrassment or lack of support for the proposition being put or that the proposition has previously been responded to;
• trouble with the direct questioning methodology of question and answer interviews because the interviewee is more used to indirect questioning as a form of communication;
• a tendency to gratuitous concurrence, particularly with leading questions, as a means of conveying cooperation and avoiding conflict;
• a tendency to adopt the words of the questioner despite them not conveying the interviewee’s intended meaning – known as scaffolding.^[14]

43. [43]
    Access to legal advice and a support person are ways in which the power imbalance and communication disadvantages may be mitigated against.  The difficulty here is that such safeguards were not deployed.  Moreover, the effect of such safeguard explanations and questions about the applicant’s rights as did occur at the start of the interview was undermined by what occurred during the preliminary recorded conversation.

Don’t waste my time

44. [44]
    These reasons earlier quoted the first part of the detective’s taped conversation with the applicant at 4.05 pm, preliminary to the commencement of the formal interview.  That preliminary conversation continued as follows:

“SGT McLEISH:  So you obviously want to talk about what happened up at Aurukun there?  Right.  Well, we can do that mate, and what I’ll do is we’ll set up a little room here and I’ll put some tapes on, we’ll do a proper interview.  I’m gonna give you your cautions and your rights and we ask you, you know, what happened, basically.  So, but.

NGAKYUNKWOKKA:  Yeah.

SGT McLEISH:  That’s up to you mate.  So I don’t want to waste your time and I don’t want to waste my time.  So if I go and set up a room and we set up an interview, are you happy to do an interview?

NGAKYUNKWOKKA:  Yep.

SGT McLEISH:  You sure?

NGAKYUNKWOKKA:  Yep.

SGT McLEISH:  Is there anybody you want to talk to before we do the interview?

NGAKYUNKWOKKA:  No, I’m all right.

SGT McLEISH:  All right?

NGAKYUNKWOKKA:  Yeah.

SGT McLEISH:  Alright.  Alright.  Sit tight, give us 10 minutes and we’ll come back and grab you okay?”^[15][16]  (emphasis added)

45. [45]
    The above emphasised comment about not wasting the detective’s time was unfortunate.  It jarred when the recording was played.  To extract a commitment that the applicant was not wasting the detective’s time in requesting to be interviewed, prior to the explanation of the rights which, if exercised, could result in the detective’s time being wasted, inevitably would have eroded the force of the ensuing explanation.  That was particularly so given the power imbalance as between the detective, a person in a position of obvious authority, and the applicant, an 18 year old Aboriginal person from Aurukun remanded in custody, alone in a cell, charged with murder.
46. [46]
    It was not argued, and I need not consider, whether this feature raises voluntariness as an admissibility issue. However, this feature of the case and the ensuing discussion of safeguard provisions demonstrates greater than ordinary care was required to ensure the applicant understood his rights.  This included an understanding he remained free to exercise his rights and not to proceed with the interview despite having taken up the time of the detective.  The ensuing interview’s discussion of those rights involved no reference to, let alone a disavowal of the continuing significance of, the fact that before commencing the interview the detective had sought and obtained the applicant’s assurance he was not wasting the detective’s time and would persist with an interview once started.

Safeguard provisions

47. [47]
    It is convenient to note the content of the safeguard provisions before considering whether they were followed.  Section 420 PPRA relevantly provides:

3. “420
   Questioning of Aboriginal people and Torres Strait Islanders

3. (1)
   This section applies if–

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

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

3. (2)
   Unless the police officer is aware that the person has arranged for a lawyer to be present during questioning, the police officer must–

3. (a)
   inform the person that a representative of a legal aid organisation will be notified that the person is in custody for the offence; and

3. (b)
   as soon as reasonably practicable, notify or attempt to notify a representative of the organisation.

3. (3)
   Subsection (2) does not apply if, having regard to the person’s level of education and understanding, a police officer reasonably suspects the person is not at a disadvantage in comparison with members of the Australian community generally.

3. (4)
   The police officer must not question the person unless–

3. (a)
   before questioning starts, the police officer has, if practicable, allowed the person to speak to the support person, if practicable, in circumstances in which the conversation will not be overheard; and

3. (b)
   a support person is present while the person is being questioned.

3. (5)
   Subsection (4) does not apply if the person has, by a written or electronically recorded waiver, expressly and voluntarily waived his or her right to have a support person present. …” (emphasis added)

48. [48]
    Section 415(1) defines a “relevant person” as a person “in the company of a police officer for the purpose of being questioned as a suspect about his or her involvement in the commission of an indictable offence”. The applicant was a relevant person.
49. [49]
    Subsection (4) of s 420 introduces reference to “the support person” without earlier reference within the section to “the support person”.  This unheralded reference to “the support person” in sub-s (4) is obviously intended to include reference to a person referred to in sub-s (2), namely “a lawyer” or “a representative of a legal aid organisation”. That is because sch 6 PPRA defines support person to mean:

“For an Aboriginal or Torres Strait Islander who is at least 17 –

1. an adult relative or another adult chosen by the person; or
2. a lawyer acting for the person; or
3. a representative of a legal aid organisation; or
4. a person whose name is included in a list of support persons and interpreters …”

ATSILS falls within the PPRA’s definition of a “legal aid organisation”.

50. [50]
    Section 420 had two significant practical effects in the present case.  Firstly, because the applicant had not arranged for a lawyer to be present during questioning, the detectives were positively obliged to notify, or attempt to notify, a representative of a legal aid organisation that the applicant was in custody for the offence of murder, unless the exception to that obligation in sub-s (3) applied.  Secondly, the detectives were precluded by sub-s (4) from questioning the applicant without a support person present, unless the exception in sub-s (5) applied. 
51. [51]
    It is noteworthy from what was said by police during the aborted interview in Weipa that they did not think the exceptions in sub-ss (3) and (4) applied, for they arranged for the presence of a support person and said they were going to notify a legal aid organisation.
52. [52]
    Section 25 PR Code elaborates on the practical implementation of s 420 as follows:

3. “25
   Questioning of Aboriginal people and Torres Strait Islanders

3. (1)
   A police officer who is about to question a relevant person the police officer reasonably suspects is an adult Aboriginal person or Torres Strait Islander must first ask questions necessary to establish the person’s level of education and understanding.

3. (2)
   Subsection (1) does not apply if the police officer already knows the relevant person.

3. (3)
   The questions the police officer may ask include questions, not related to the relevant person’s involvement in the offence, that may help the police officer decide if the person –

3. (a)
   is capable of understanding the questions put to the person, what is happening to the person and the person’s rights at law; and

3. (b)
   is capable of effectively communicating answers to the questions; and

3. (c)
   is aware of the reasons the questions are being asked.

3. (4)
   If the police officer considers it is necessary to notify a representative of a legal aid organisation that the relevant person is about to be questioned in relation to an offence, the police officer must inform the relevant person of the intention to notify the legal aid organisation, in a way substantially complying with the following –

3. ‘As you’ve not arranged for a lawyer to be present, a legal aid organisation will be notified you are here to be questioned about your involvement in an indictable offence.’.

3. (5)
   If the relevant person has indicated the person does not wish to telephone or speak to a support person or arrange for a support person to be present during questioning, the police officer conducting the questioning must inform the relevant person that the person may have a support person present during the questioning.

3. (6)
   The information given under subsection (5) must substantially comply with the following –

3. ‘Is there any reason why you don’t want to telephone or speak to a support person and arrange for a person to be present during questioning?

3. Do you understand that arrangements can be made for a support person to be present during the questioning?

3. Do you also understand that you do not have to have a support person present during questioning?

3. Do you want to have a support person present?’

3. (7)
   If the person reasonably suspects that the relevant person is at a disadvantage in comparison with members of the Australian community generally, and the person has not arranged for a support person to be present during the questioning, the police officer must arrange for a support person to be present.”

53. [53]
    It is unnecessary to determine the point here but s 25(7) of the PR Code – only a regulation – appears to adopt the exception found in s 420(3) in respect of notifying a lawyer as a means of avoiding the application of s 420(4)’s requirement that a support person be present. Its implication is that unless the police reasonably suspect the relevant person is at a disadvantage in comparison with members of the Australian community generally, there is no need for a support person. However, the only exception under the Act to s 240(4)’s requirement of a support person is waiver, per s 420(5). Section 25(7) of the PR Code needs review – it may be leading police to wrongly contradict the Act’s requirement.

Failure to notify lawyer

54. [54]
    Section 420(2)’s requirement to notify or attempt to notify a representative of a legal aid organisation was not rendered otiose by the fact that on the previous day, the applicant, when already in custody on the charge of murder, had communicated with a representative of ATSILS.  The notification requirement in sub-s (2) falls to be read in the broader context of the section, which applies if a police officer “wants to question” an Aboriginal or Torres Strait Islander suspect.  It follows that the requirement to notify or attempt to notify a representative of a legal aid organisation was triggered afresh once the detectives in Cairns decided they wanted to question the applicant.  The respondent did not argue to the contrary
55. [55]
    No attempt was made by the detectives to contact any lawyer, let alone ATSILS, who Det Sgt McLeish knew the applicant had been in contact with the previous day.  It was reasonably practicable for them to do so and the respondent does not dispute that either.  Rather, the respondent asserts that the sub-s (3) exception to the requirement applies. 
56. [56]
    That exception applies if, as sub-s (3) says, “a police officer reasonably suspects the person is not at a disadvantage in comparison with members of the Australian community generally”. That phrase does not appear to have been the subject of relevant analysis in the reported authorities.^[17] 
57. [57]
    As to the requisite content of the suspicion, it is informed by the words earlier in s 420(3), “having regard to the person’s level of education and understanding”.  The sub-section’s language implicitly acknowledges the prospect that anyone may be disadvantaged while in the company of a police officer for the purpose of being questioned as a suspect in a crime; were it otherwise the sub-section would end at the word “disadvantaged”.  The point of course is that the usual explanation of rights is considered sufficient to address the disadvantage most citizens being questioned might otherwise be under but may be insufficient to address the disadvantage experienced by Indigenous citizens whose education and understanding may be inadequate to a genuine appreciation of their rights as usually explained to most citizens.  The sub-section’s introduction of the comparator, “members of the Australian community generally”, means the disadvantage being spoken of is not disadvantage in the abstract but disadvantage relative to others.  Thus, sub-s (3)’s aim is an assessment of whether the person is not at any higher level of disadvantage, having regard to the person’s level of education and understanding, than members of the Australian community generally.
58. [58]
    Section 420(3) does not limit the meaning of the word “understanding”.  In particular, it does not limit the word’s meaning to a capacity for literal understanding of words.  The above summarised disadvantages experienced by many Indigenous person’s being questioned as suspects show it is a real risk that, even though equipped with a literal understanding of words, an Indigenous interviewee may lack genuine understanding of what is meant by the usual police warnings and explanations of their rights and, particularly in light of the aforementioned power imbalance, how they can proceed to exercise them.  Put another way, Indigenous interviewees may lack the cultural understanding held by other members of the community that they are genuinely free to go ahead and speak up and exercise the rights which the questioner tells them they have, even though the questioner seems to want to keep questioning them.  On the latter point of prospective cultural misunderstanding, it was relevantly observed in Anunga:^[18]

“Some Aboriginal people find the standard caution quite bewildering, even if they understand that they do not have to answer questions, because, if they do not have to answer questions, then why are the questions being asked?”

59. [59]
    The level of satisfaction required for the assessment contemplated by s 420(3) is reasonable suspicion.  The words “reasonably suspects” are defined in sch 6 PPRA as follows:

“reasonably suspects means suspects on grounds that are reasonable in the circumstances.”

Whether a police officer suspects an Indigenous interviewee is at a disadvantage is a matter about which the minds of different police may vary,^[19] however it is not enough that the suspicion is held.  The statutory definition requires it to be based on “grounds that are reasonable in the circumstances”.

60. [60]
    There was no affidavit filed in the application deposing to the existence of the requisite reasonable suspicion.  However, the prosecution called Det Sgt McLeish, who in due course testified to having held that suspicion.
61. [61]
    Det Sgt McLeish testified that after his preliminary conversation with the applicant he made several enquiries prior to commencing the formal interview.  The preliminary interview commenced at 4.05 pm and lasted for about a minute and a half.  The formal interview commenced at 4.47 pm.  The detective sergeant’s account of what he did in the intervening 40 minute period, other than making the physical arrangements necessary to hold an interview, was:

“I returned … upstairs to the CIB.  I familiarised myself with the investigation, which I didn’t know a lot about at that stage.  That included researching on QPRIME, our police system, the occurrence about what had happened.  I also phoned the primary investigator, Detective Sergeant Erin Eyears, and got a briefing from Erin in relation to the investigation.  I also obtained a briefing from Erin in relation to the defendant, his background, and, obviously, that he was a person from Aurukun.  I further interrogated the police system to find out more about the defendant, Mr Ngakyunkwokka.  I established that he’d had a lengthy criminal history for a man of his age, he’d had numerous interactions with police and that he’d been interviewed on at least half a dozen to a dozen occasions by police.”^[20]

62. [62]
    Det Sgt McLeish went on to explain that his purpose in checking the police system about the applicant was:

“I wanted to establish if Mr Ngakyunkwokka had had interactions with the police.  Obviously, if he had never interacted with the police before, that would change my opinion of did he have familiarisation with the police process and the interview process.  After I did make those enquiries, I – in my mind, I established that it was reasonable to suspect that he had been given his cautions and rights before and that he knew the police process and the interview process.”^[21]

63. [63]
    Those answers raise three points of significance.  The first point is that the detective had not formed the requisite suspicion by the time he commenced the interview.  As much was confirmed during cross-examination in the following exchange:

“Now, prior to the interview occurring at 4.47, it’s correct that you made no attempt to contact a lawyer on the defendant’s behalf?---That’s correct.

Why not?---Because I still hadn’t made a determination as to whether I believed he was a disadvantaged person or not, so like I said, it was an ongoing assessment, so I wanted to ask him some more questions first.

Right.  So you didn’t have enough information prior to the interview to make an assessment about that.  Is that your evidence?---I had information, but I still wanted to ask him some questions about his background.”^[22] (emphasis added)

64. [64]
    The second point is that Det Sgt McLeish professed to be interested in the applicant’s “previous interactions with the police”, yet he must not have taken the elementary step of asking the primary investigator about the applicant’s earlier interactions with police in the case so far.  If he had, he would have learned that the interviewing officers in Weipa had apparently formed a view of the applicant’s level of disadvantage which required that a legal aid organisation should be notified and  that a support person should be present.  The detective would have, if aware of that obviously relevant fact, testified to it in explaining what he learned from the primary investigator.  He did not. Because the inquiry about the applicant’s earlier interactions with police was such an obvious inquiry to make, the fact it must not have been made is a relevant background consideration in weighing the reasonableness of such grounds as are relied upon in support of the purported suspicion. Alternatively if the Detective in fact did learn of the views held by the interviewing police at Weipa that was a fact telling positively against the reasonableness of the alleged suspicion.
65. [65]
    The third point is that the detective assumed, because the applicant had been interviewed multiple times by the police and presumably been “given his cautions and rights”, he would know the “police process and interview process”.  Yet it was not suggested the detective’s inquiries discovered the substance of what occurred during these previous interviews, including whether they proceeded into questioning about the substance of the suspected offences or ceased earlier, as for example occurred one day earlier at Weipa. Nor was it suggested the inquiries revealed what understanding of rights was previously exhibited by the applicant.  The bare information gleaned was no more likely to support the inference the applicant previously understood his rights than it was to support the inference he had not understood his rights or even the inference that the applicant had developed a misunderstanding that doing a police interview was a necessary part of the process after arrest. 
66. [66]
    If one were to assume the applicant was not at a disadvantage compared to members of the Australian community generally, then the fact he had previously done police interviews might support the inference he would likely understand his rights.  But to begin by assuming the applicant was not at a disadvantage compared to members of the Australian community generally would defeat the object of the process.  If Det Sgt McLeish embarked upon that process without assuming the result, then the bare fact the applicant had previously been interviewed by police was of neutral significance. 
67. [67]
    The upshot then is that before embarking upon the interview Det Sgt McLeish was not possessed of any information which provided grounds which were reasonable in the circumstances for holding the requisite suspicion.
68. [68]
    Moreover, on his own account he had not arrived at such a suspicion before the interview. The following questions and answers occurred in evidence in chief in relation to how Det Sgt McLeish allegedly came to his suspicion during the interview:

“Now, did you do any – in the course of the interview, did you get any more information concerning the issue that you just raised before?---Yes.  So it’s an ongoing assessment as to whether he reasonably understands and is taking part in the process, so during that, every question that I put to him and asked of him, I satisfied myself that he understood the answer, that he understood what was happening, and I also asked him a series of questions in relation to his education and background and ability to read and write.

All right.  Well, did your view change at all during the course of the interview?---No.  During the course of the interview, I was satisfied at all times that he understood exactly what was happening, understood the questions, understood the process, and was given a number of opportunities to ask questions or to cease the interview process or to make a phone call or to talk to another person.”^[23] (emphasis added)

69. [69]
    Once the interview was underway Det Sgt McLeish ascertained the applicant’s name, had him confirm it was right that the applicant had “asked to talk to the detectives” and proceeded directly to administer the caution.  It is surprising, if the detective was genuinely engaged in what he called an “ongoing assessment” of whether the applicant was disadvantaged and “still wanted to ask him some questions about his background”, that the detective did not tend forthwith to that process rather than moving to caution the applicant. 
70. [70]
    Det Sgt McLeish accepted in cross-examination that s 25(1) of the PR Code required that he “first ask questions necessary to establish the person’s level of education and understanding”.  He also accepted that according to the Queensland Police Service Operational Police Manual a police officer should proceed on the assumption an Aboriginal person is a vulnerable person unless it is established otherwise.^[24]  He accepted questions should be asked, including about age, standard of education, place and type of education, proficiency in English, cultural background and work history, in order to establish if the person is fully aware of the consequences which may result from questioning and is capable of understanding their rights at law.  Cross-examination continued:

“So by the time you commenced the interview at 4.47, you certainly hadn’t made any of those types of enquiries in respect of this defendant?---No.  That’s why I wanted to ask him a series of questions, yes.

Okay.  The interview commences.  Questions directed at his level of education and understanding were not the first questions you asked of him.  Is that right?---No.  I gave him his cautions first, yes.

So is that because you had already determined to interview him?---No.  That’s how I always do it, because I always want people to be cautioned prior to me asking them any questions.”^[25]

71. [71]
    It is instructive to consider the nature of the exchange which occurred upon the administering of the warning:

“SGT McLEISH:  Okay.  Um, before I ask you any questions, mate, I’m gonna outline a few warnings to you.  Alright?  The first one is that everything we say and do today is going to be recorded.  Okay?  So anything you tell me is going to be recorded on a DVD, so video and audio.

NGAKYUNKWOKKA: Yeah.

SGT McLEISH:  And anything you do will be recorded as well so in line with that warning, mate, you also have the right to remain silent.  That means you don’t have to say anything, you don’t have to answer any of my questions and you don’t have to make any statement unless you wish to do so.  Whatever you do say will be recorded, like I said, and it may be later used as evidence in Court.  Do you understand that warning?

NGAKYUNKWOKKA:  Yep.

SGT McLEISH:  Can you tell me briefly what that warning means to you, mate?

NGAKYUNKWOKKA:  Um, anything I say is like recorded.

SGT McLEISH:  Yeah.

NGAKYUNKWOKKA:  And can be charged.

SGT McLEISH:  Yeah, it can be used as evidence in Court.

NGAKYUNKWOKKA:  Yeah.

SGT McLEISH:  Yeah.  And do you understand that you don’t have to do this interview?

NGAKYUNKWOKKA:  Ah, yeah.

SGT McLEISH:  You only do this interview if you want to do this interview?

NGAKYUNKWOKKA:  Yeah.

SGT McLEISH:  Yeah.  And like I said before the only reason we’re here is because you asked us to come down here.  Is that correct?  (No audible response.) The only reason me and Mitch are here to interview you is because you asked to talk to us.

NGAKYUNKWOKKA:  Yeah.

SGT McLEISH:  Is that right?

NGAKYUNKWOKKA:  Yeah.”^[26] (emphasis added)

72. [72]
    None of those answers give any objective support for grounding the requisite suspicion.  With one exception, the applicant merely engaged in a pattern of single answer concurrence with what was asked.  The exception was when Det Sgt McLeish asked the applicant to give his understanding of the warning, and the applicant responded that anything he said could be recorded “[a]nd can be charged”.  He had already been charged.  The response was non-sensical.  Unless further explained it trended against, not in favour of, there being grounds for the requisite suspicion.  Given the detective was yet, on his account, to have formed the requisite suspicion this was a perfect chance to explore the applicant’s level of understanding, relative to members of the community generally, by asking the applicant to clarify his answer.  Instead, the detective just said, “Yeah, it can be used as evidence in Court” and the applicant resumed just saying “Yeah”. 
73. [73]
    The pattern of short answers with no pursuit of the level of understanding underlying them continued during the balance of the purported explanation of the applicant’s right to contact and have present a friend, relative or lawyer.
74. [74]
    If one were to start, erroneously, with the assumption the applicant was not at a disadvantage compared to members of the Australian community generally, then the fact he just gave yes or no answers when such rights were explained might support the inference he understood his rights and how to exercise them.  But, as earlier mentioned, to begin by assuming the applicant was not at a disadvantage compared to members of the Australian community generally would defeat the object of the process.  The well known risk a suspect such as the applicant might not understand, yet respond co-operatively as if he did, made it important to properly explore his understanding.  That did not occur. 
75. [75]
    After the questions then moved on from the topic of the applicant’s rights there were some questions asked about the applicant’s physical state, particularly whether he had recently consumed liquor or drugs or was injured.  I do not overlook that in answering questions about those topics the applicant’s responses provided substantive information, seemingly indicating that he understood those questions.  However, there is a difference in the nature and level of understanding required to understand questions about the simple topics of whether a suspect has consumed liquor or drugs or is injured, compared to questions about the conceptually more complex topics of suspects’ rights and how to exercise them.  As earlier explained, even if Indigenous suspects are equipped with an understanding of English words, it does not follow such suspects have the cultural understanding that while being questioned by police it is okay to go ahead and speak up and exercise the rights which the questioner tells them they have, even though they are in the process of being questioned.
76. [76]
    By this point in the process there had accumulated a number of objective grounds for concern.  Over and above the fact the applicant was an 18 year old Aboriginal person from Aurukun who had already been charged with murder and remanded in custody, there were three other grounds for concern.  They were the possibility the applicant mistakenly thought doing the interview was a necessary part of the process, the fact the police had extracted a commitment from him that he was not wasting the detective’s time in requesting to be interviewed prior to the explanation of his right not to be interviewed and the fact that when his rights were explained he did not at any point articulate in his own words a correct understanding of them.  That he exhibited a capacity to answer questions on simple topics fell well short of eliminating those grounds for concern regarding his disadvantaged understanding of his rights and how to exercise them. 
77. [77]
    The questioning eventually moved to the applicant’s background as follows:

“SGT McLEISH:  Um, Karl, I don’t need to ask you a lot of questions, sorry, Kyle, I don’t need to ask you a lot of questions about your history at Aurukun but just a couple of real quick ones, um, di you go to school in Aurukun?

NGAKYUNKWOKKA:  Yeah.

SGT McLEISH:  What grade did you go to?

NGAKYUNKWOKKA:  Um, to grade seven and moved on to boarding school.

SGT McLEISH:  Yeah.  Which boarding school did you go to?

NGAKYUNKWOKKA:  Abergowrie.

SGT McLEISH:  Abergowrie?

NGAKYUNKWOKKA:  Yeah.

SGT McLEISH:  Yeah.  And what grade did you go to there, mate?

NGAKYUNKWOKKA:  Ah, probably nine, then I left.

SGT McLEISH:  Yeah.

NGAKYUNKWOKKA:  Yeah.

SGT McLEISH:  And when you left, did you go back to Aurukun?

NGAKYUNKWOKKA:  Yeah.

SGT McLEISH:  Can you read and write?

NGAKYUNKWOKKA:  Ah, only write, yeah, but a little bit of reading, yeah.

SGT McLEISH:  A little bit of reading?

NGAKYUNKWOKKA:  Yeah.

SGT McLEISH:  So if I gave you something like a newspaper, can you read the newspaper?  Or just a little bit?

NGAKYUNKWOKKA:  Yeah, just a little bit, yeah.

SGT McLEISH:  Okay.  When you’re at home in Aurukun do you speak English or do you speak –

NGAKYUNKWOKKA:  Wik.

SGT McLEISH:  Wik?

NGAKYUNKWOKKA:  Yeah.

SGT McLEISH:  Okay.

NGAKYUNKWOKKA:  Yeah, sometimes English.  Yeah.

SGT McLEISH:  Sometimes English?  Sometimes Wik?

NGAKYUNKWOKKA:  Yeah.

SGT McLEISH:  Okay.  Have you, have you understood, understand everything I’m saying to you at the moment?

NGAKYUNKWOKKA:  Yeah.

SGT McLEISH:  Yeah.  Okay.  And, again, mate, if there’s something you don’t understand or you’re not sure about a question or you’re not sure what I’m saying just say, Brad, I’m not real sure about that question.  Can you ask it again and I can try to explain it further to you, mate.

NGAKYUNKWOKKA:  Yeah.”^[27]

78. [78]
    After this Det Sgt McLeish moved on to begin questioning about the facts.  It follows that what was said by the applicant about his background was purportedly enough to advance Det Sgt McLeish to the point of holding s 420(3)’s requisite suspicion.  Yet, as was highlighted in the ensuing cross-examination, the information just gleaned about the applicant’s background was that English was not the applicant’s first language, he only went to year 9 at high school, he could write but could only do a little bit of reading of English, he could read a newspaper a little bit, he was 18 years old and he was from the remote Indigenous community of Aurukun.  Such features trended against, not in favour of, grounding the requisite suspicion.  That point was put to and answered by the detective as follows:   

“Those features were sufficient, were they not, to establish that he was at a disadvantage in comparison to members of the Australian community generally?---Not in my mind no.”^[28]

Despite the detective’s answer, the force of the point is self-evident.  

79. [79]
    I had the strong impression from the detective’s evidence that he gave great weight to the fact that while the applicant’s first language was Wik, he could speak using English words.  This seems to have led the detective to give weight to essentially acquiescent yes and no answers; answers which would logically only carry weight if it were assumed the applicant was not at a disadvantage
80. [80]
    Considering the information about the applicant’s background it would have been prudent to return to questions which explored the applicant’s real state of understanding of his rights and how to exercise them.  Police have nothing to fear from pursuing questions which prompt suspects to articulate in their own words their understanding of their rights and how to exercise them.  In the present case, had such a method been properly pursued, the responses would either have tended to confirm the impression of disadvantage which the applicant’s background already suggested or would have positively countered that impression, providing objective support for the requisite suspicion. 
81. [81]
    The above analysis demonstrates the ledger of objective support to ground the requisite suspicion was already in the negative by the time the questioning about background commenced.  It only moved further into the negative as a result of that questioning.  There was no evidence that could reasonably be seen to support the claimed suspicion.^[29]
82. [82]
    It follows Det Sgt McLeish did not have reasonable grounds for his claimed suspicion that the applicant was not disadvantaged in comparison with members of the Australian community generally.  I refrain from expressing a finding as to whether he truly held such a suspicion, for even if he did, it was not a reasonable suspicion.  Section 420 required that the police contacted or attempted to contact ATSILS.  That safeguard was not complied with. 

Failure to arrange for the presence of a support person

83. [83]
    There was no support person arranged to attend prior to the commencement of the interview.  Cross-examination on that topic included this exchange:

“All right.  But, you see, do you accept that under section 420 subsection (4) of the Police Powers and Responsibilities Act, that you must not question a person unless before the questioning starts you, if practical, allow the person to speak to a support person and a support person is present while the person is being interviewed - questioned?---I believe it says also unless they have expressly waived that right.

Right.  But you did not discuss his right to have a support person present with him in that initial conversation at 4.05 – commencing at 4.05?---No.  Of course not.  No.  I wasn’t there to interview him at that stage.  I was there to clarify that he wanted to talk to me. 

…

And, in fact, the next action you took in respect of him was to interview him?---After giving his rights and cautions and establishing that he was not a disadvantaged person, yes. 

…

It was incumbent before the interview started at 4.47, do you accept, to have made arrangements about a support person?---Well, I have to establish if he wants a support person or if he wants to waive that right, so I have to ask him the questions first.

And you didn’t ask him any questions about that in the interview at 4.05?---It wasn’t an interview at 4.05.

Well, in the conversation at 4.05?---Conversation at 4.05.  That’s correct.

And in the interview itself, after it commenced, you didn’t ask him whether he wanted to exercise his right under section 420 to speak to a support person before the interview and have a support person present during the interview?---No.  I cautioned him and gave him his right that he had the opportunity to talk to a friend, relative or support person, yes.

You gave him the general caution about having an opportunity to speak to a lawyer or somebody?---Yes.

But you did not specifically advise him about his right to speak to a support person before the interview starts and to have a support person present during the interview?---All I can say is my memory is I gave him his rights and cautions, and I gave him the opportunity to contact a friend, relative or support person.”^[30]

84. [84]
    The opportunity the detective was there thinking of must have been the following exchange during the purported explanation of rights:

“SGT McLEISH:  Okay.  Kyle, um, further to that you have, because you’re doing an interview with Police you have the right to contact a friend or relative and inform that person where you are and to arrange or to attempt to arrange to have them present during questioning.  And again because you’re talking with Police you also have the right to contact a lawyer, ATSILS, someone from legal aid, and inform that person where you are and to arrange, or to attempt to arrange to have them present during questioning.  If you want to talk to anybody, a friend, a relative or lawyer, we can stop the interview for a reasonable time and we can make some phone calls for you if that’s what you want to do.

NGAKYUNKWOKKA:  Yeah.

SGT McLEISH:  Do you want to contact anybody?

NGAKYUNKWOKKA:  Oh, no.

SGT McLEISH:  No?

NGAKYUNKWOKKA:  No.

SGT McLEISH:  Okay.  Kyle, it’s important that you understand that you do have that right and that’s, and that’s ongoing throughout the interview basically so if at any time during this interview you want to make a phone call to anybody, a relative, someone up in Aurukun, a friend in Aurukun or a lawyer, someone from ATSILS, you just tell me.  You say, Brad, can I just make a quick phone call and at any time you can make the phone call.

NGAKYUNKWOKKA:  Yeah.

SGT McLEISH:  Clear?

NGAKYUNKWOKKA:  Yeah.”^[31]

85. [85]
    As earlier discussed, the giving of acquiescent yes and no answers in the absence of follow up questions to check understanding provided no basis to conclude the applicant understood the explanation of his rights and that he could there and then exercise them.  But that is not the only problem. 
86. [86]
    The explanation given grouped such a lot of information together in a single burst that it diminished rather than enhanced the prospect it would be understood.  Moreover it merely culminated in the question of whether the applicant wanted to contact anyone.  The admittedly related but nonetheless different question of whether the applicant wanted a support person present was not even asked.  It follows that even if the applicant truly understood the right and was waiving it through the short answers he gave, it could only have been an implied waiver.
87. [87]
    Section 420(4) made it mandatory that a support person was present unless, in the exception provided for by s 420(5), the applicant “by written or electronic waiver expressly and voluntarily waived his … right to have a support person present”.  No such express waiver appears in the recording of the interview and it is not suggested there was a written waiver. 
88. [88]
    Further, it is difficult to accept a “voluntary” waiver could have occurred in circumstances where there were no follow up questions to check the applicant actually understood what he was supposedly waiving.  Section 25(5) PR Code required that, in response to the applicant’s indication he did not wish to contact anyone, the police should have informed him he “may have a support person present during questioning”.  There was no such response.  It will be recalled s 25(6) PR Code actually provides a script of the questions to be asked in such a situation; a script with which police “must substantially comply”.  There was no such compliance.
89. [89]
    Section 420 required that in the circumstances of this case a support person was present.  That safeguard was not complied with. 

Conclusion

90. [90]
    The bases for exclusion relied upon by the applicant were described as the second and third bases of exclusion by the plurality in R v Swaffield^[32] in these terms:

“The second basis is that it would be unfair to the accused to admit the statement. The purpose of the discretion to exclude evidence for unfairness is to protect the rights and privileges of the accused person. The third basis focuses, not on unfairness to the accused, but on considerations of public policy which make it unacceptable to admit the statement into evidence, notwithstanding that the statement was made voluntarily and that its admission would work no particular unfairness to the accused. The purpose of the discretion which is brought to bear with that emphasis is the protection of the public interest.”

91. [91]
    As to the fairness discretion, the respondent emphasises it is unlikely that what the applicant said in the interview about the fatal events is unreliable.  However, as the plurality explained in Swaffield:^[33]

“While unreliability may be a touchstone of unfairness, it has been said not to be the sole touchstone. It may be, for instance, that no confession might have been made at all, had the police investigation been properly conducted.” (emphasis added)

The plurality returned to the topic subsequently, observing:

“Unreliability is an important aspect of the unfairness discretion but it is not exclusive. As mentioned earlier, the purpose of that discretion is the protection of the rights and privileges of the accused. Those rights include procedural rights.”^[34]

92. [92]
    The respondent seeks to downplay the potential consequences of the failure to accord the applicant his procedural rights.  The respondent emphasises affidavit evidence that the applicant had been interviewed previously by police on four separate occasions when his rights were explained and he had a support person present.  Yet the fact he did have a support person present on those occasions merely serves to fortify the conclusion that he would have been aided by the presence of a support person he was unlawfully deprived of on this occasion.  Further, it is apparent from the transcripts of those four interviews that in three of them the applicant did not articulate in his own words an understanding of his right not to answer police questions.   In one interview, on 18 December 2018, after the caution was administered, he was asked to explain what it meant and he responded, “Um, I don’t have to answer any questions”.  However, that answer was of doubtful value in demonstrating actual understanding because the words of the answer merely replicated some of the words just used by the interviewing officer, that is, it may merely have been an instance of scaffolding.  None of the interviews involved any explanation from the applicant in his own words of an understanding he really could go ahead and freely decline to answer questions. 
93. [93]
    There is every prospect the applicant has drifted through past police interviews without ever acquiring the understanding that suspects do not have to do police interviews and are genuinely free to go ahead and speak up and exercise the rights which questioning police tell them they have.  In other words, the safeguards the applicant was unlawfully deprived of in this instance still mattered.
94. [94]
    It cannot be said the unlawfulness worked no unfairness.  The need for compliance with the legislated safeguards was more than usually important given the applicant had already been charged and remanded in custody by a court.  Additionally, the circumstances of this case compel the inference the applicant likely had the erroneous belief it was necessary as part of the process to which he was subject as a defendant that he complete an interview with the police.  Had he received the benefit of the safeguards to which he was entitled he might not have persisted in that erroneous belief.  It is also more likely that he would have acquired an actual understanding of his rights and done so in an atmosphere where he felt free to disregard his undertaking that he would not waste the interviewing officer’s time and felt free to go ahead and exercise rights.  That his subsequent admissions about the fatal events may be reliable pales in significance when it is appreciated it may be that no admissions would have been made at all but for the unlawful police conduct.  The failure to notify ATSILS and ensure a support person was present involved serious unfairness.
95. [95]
    The seriousness of the deprivation of rights also heralds the operation of the public policy discretion to exclude evidence. The failure to contact a lawyer and arrange for the presence of a support person cannot for the reasons just ventilated be categorised as trivial or inconsequential.  Furthermore, it demonstrated a very concerning lack of understanding and or respect for protective measures which police have been entrusted to provide to disadvantaged Indigenous suspects they want to question.  It is not in the public interest to give curial approval to such concerning conduct and that is a significant consideration here.
96. [96]
    While the rule in Bunning v Cross^[35] requires that consideration to be balanced against the public interest in convicting those who commit offences, particularly a very serious alleged offence like the present, that rival interest is hardly in significant jeopardy without the interview here.  After all, the applicant’s approach and fatal stabbing of Mr Woolla was recorded on CCTV footage.  This case thus presents as an entirely appropriate vehicle for the public interest in the protection of the individual from unlawful treatment to prevail. 
97. [97]
    It follows it would be so unfair to the applicant and so contrary to the public interest to admit the interview into evidence that it should be excluded from evidence at the trial of the applicant. 

Orders

98. [98]
    My orders are:

    1. Application granted.
    2. The police interview with the applicant of 3 January 2020 is excluded from evidence at his trial.
    3. These reasons may not be published or available for inspection on the court file other than to the parties and the court until the conclusion of the applicant’s trial and, in the event of a conviction and filing of an appeal within time, the conclusion of the appeal process.

Associate’s note: In October 2021 the applicant was found guilty by a jury of murder.  He unsuccessfully appealed his conviction to the Court of Appeal.  He sought special leave to appeal to the High Court of Australia, which was refused on 7 September 2023.