Rees, Neil --- "Fry v Jennings (Criminal law - unlawful use of a motor vehicle - larceny - admissibility of confessions - voir dire - voluntariness - onus on prosecution to lead evidence - Anunga Rules)" [1984] AboriginalLawB 11; (1984) 1(11) Aboriginal Law Bulletin 6

• Fry V Jennings
• Criminal Law-Unlawful Use Of A Motor Vehicle-Larceny-Admissibility Of Confessions-Voir Dire-Voluntariness-Onus On Prosecution To Lead Evidence-Anunga Rules.

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Fry v Jennings

Criminal law - unlawful use of a motor vehicle - larceny - admissibility of confessions - voir dire - voluntariness - onus on prosecution to lead evidence - Anunga Rules.

Fry v Jennings

Supreme Court of the Northern Territory at Darwin (Muirhead J.

21 October, 1983

Casenote by Neil Rees

The appellant, an Aboriginal man, appeared before the Court of Summary Jurisdiction at Yuendumu on 31 May, 1983 charged with one count of unlawful use of a motor vehicle and one count of larceny of petrol. The appellant pleaded not guilty. Mr D. Barritt S.M. "found the matters proven" but did not formally pronounce a conviction and remanded the accused for sentence. The appellant appealed to the Supreme Court against the adjudication by Mr Barritt.

In the Court of Summary Jurisdiction the only evidence presented to the Court by the police prosecutor was an alleged confession made by the appellant. This evidence was in the form of a record of interview. Prior to the record of interview being presented in evidence, counsel for the appellant objected to its admissibility. The following exchange took place between counsel and the magistrate –

MR. CORKER: Perhaps the matter need go no further at this stage and I formally object to the admissibility of that evidence.

HIS WORSHIP: What do you want - a voire dire, do you?

MR. CORKER: If it be necessary, yes sir, to test the admissibility of the evidence but I would have thought it was patently clear on looking at the preliminary questions in relation to a caution that they would not be admissible.

MR. McINLAY: Sir, I do not know what the grounds of the objection are yet.

CORKER: The grounds of objection are that the confession has not been made voluntarily in that the defendant has not understood the nature of the caution.

HIS WORSHIP: How can a court give a ruling on these matters without knowing what the material is that it is ruling on? You might have a copy of the record of interview but I haven't a copy of the record of interview.

MR. CORKER: No, sir, and on a voire dire it should be ... I request a voire dire at this stage.

HIS WORSHIP: You request it. Very well. Do you undertake that you are justified in making the objection?

MR. CORKER: Yes, sir; I undertake that to the court.

HIS WORSHIP: Very well. Constable, leave the witness box please.

(THE WITNESS WITHDREW)

HIS WORSHIP: Now call your evidence.

MR CORKER: Sir, the onus is on the prosecution to prove that the record of interview was made voluntarily. The objection has been made.

HIS WORSHIP: Are you calling any evidence?

MR. CORKER: It is not my role to call evidence, sir.

HIS WORSHIP: Very well. Your voire dire is rejected.

The appellant argued that it was incumbent on the prosecution to adduce evidence on the voir dire when the voluntariness of a confession was challenged and that the magistrate was in error when he called upon the defence to lead evidence before the prosecution. Muirhead J. accepted this argument and after quoting from the judgments of the High Court "in McPherson v. The Queen [1981] HCA 46; (1981) 55 ALJR 594 he stated,

... once the issue is raised, a voir dire examination is a matter of right, rather than discretion. It is for the court to determine whether the issue is raised but in the case, the subject of this appeal, it was raised fairly and squarely ... I merely add that in a case such as this where the issue was as to the procedure on the voir dire, it is unfortunate that the voir dire was eventually refused because defence counsel insisted, in my view correctly, that the prosecution should lead the evidence relevant to voluntariness, rather than a young Aboriginal to whom the issue and matters of procedure were probably a mystery.. The procedures, as opposed to the principles of justice are seldom rigid, and if discretion was involved, surely justice would have been best served by exercising the procedural discretion in favour of the defendant.

During the course of the argument, in the court of Summary Jurisdiction, concerning the admissibility of the record of interview defence counsel made the following submission to the magistrate –

MR CORKER: Sir, just with respect, could I mention one matter? I would submit that your Worship is bound by authority and I would read one small passage from Coulthard and Steer by his Honour Mr Justice Muirhead:

‘Proof of voluntariness requires proof that an accused at the time he spoke truly understood his right to speak or remain silent.’

I would submit that is completely straightforward. Unless the accused understands his right to speak or remain silent then the onus that rests on the Crown to prove that the confession is voluntary is not discharged. I cannot take the matter any further than that.

HIS WORSHIP: The matters in relation to that which arise apparently come through from an erroneous interpretation of cases which arise in New South Wales where the New South Wales Crimes Act somewhat extends the common law. In any event, were I to rule on it - and I do so rule for your sake - I find that on the evidence before me, the accused was aware at the time when he made this record of interview that he had a right to silence and he was answering the questions voluntarily in that sense of the word, which is a different sense of the word from that common law sense." In his reasons for judgment Muirhead J indicated clear disagreement with the remarks of Mr Barritt S.M. –

I am not concerned in this matter (especially as I have decided I must direct a re-hearing on these charges by another Magistrate) to reiterate what has so often been said concerning the Anunga guidelines which were set out for the assistance of police officers (R. v Anunga and Others 1 I A.L.R. 412). It is trite law to observe that admissions of a person in police custody are not admissible in evidence unless they are proved by the prosecution to have been preceded by a properly administered and comprehended caution which includes adequate explanation of the citizen's right to remain silent. There is no prima facie presumption of the adequacy of a caution. If an issue is raised it is a matter of proof upon the balance of probabilities and the onus of establishing legal voluntariness rests upon the prosecution. The Magistrate in calling upon the defence to call evidence, the objection having been made, appears to have relied upon the judgment of Wells J. in The Queen v Williams (1976) 14 S.A.S.R. I at pp. 2-3 where his Honour dealt with "The duty to begin". That case dealt with a jury trial where the trial judge has the task of deciding issues of law, the jury being arbiters of fact. His Honour there stressed the difficulties which arise in a jury trial, where the regular method of delaying an objection until the evidence is sought to be called may result in a miscarriage of justice. Uncertainty as to whether or not confessional evidence will be admitted makes it well nigh impossible for the Crown to properly open its case to the jury. If evidence, later excluded, is heard by the jury it may involve the "risk of a miscarriage of justice caused by the jury's inability to put an offending item of evidence out of their minds". But a Magistrate sits as a judge and jury. Magistrates in this Territory are legally qualified. The law assumes they have the capacity to consider evidence objectively and to decide the questions of both admissibility and weight. Evidence given in a Court of Summary Jurisdiction and ruled as inadmissible must then be excluded as entirely irrelevant in consideration of the issue of proof. A glance at the record of interview, if tendered on the voir dire or to the Magistrate beforehand may indicate (especially in cases involving many Aboriginal people) that for one reason or other proof of voluntariness may be lacking. On the other hand assurance by counsel that a genuine issue as to voluntariness arises upon his instructions, will as a matter of practice suffice to raise an issue for examination upon the voir dire ...

In the present case the Magistrate was referred by defence counsel to the record of interview set out in the judgment of the Chief Justice in R. v Jungala and another as illustrating a caution which did not in that case establish voluntariness. Each case depends on its own facts, one of which may be the apparent sophistication of an accused to be ultimately assessed, if not from the record, rrom evidence given on the voir dire by prosecution witnesses or by the defendant or other witnesses. The record of interview in issue together with counsel's assurance should have indicated that counsel was not involved in a mere fishing expedition, it raised a prima facie case for further investigation and the appropriate order was that the Crown should call its evidence in proof of voluntariness. When that evidence and any evidence called by the defence had been called and evaluated-and I use that term legally as well as factually - it was for the Magistrate to rule as to voluntariness and if necessary to determine whether or not in the exercise of his "fairness discretion" the evidence should be admitted, stating briefly his reasons.

In this Territory especially in localities where consideration of the Anunga guidelines is of such importance, and where Aboriginals of varying degrees of sophistication and familiarity with English are concerned, it is a sound and fair fule of practice where a challenge to voluntariness is made that the Crown "should begin". The Magistrate should be given the opportunity of inspecting the written record (if any) and he is perfectly entitled to ask defence counsel as to the basis of the objection. If this practice is followed in a Court of Summary Jurisdiction the flow of evidence is not unduly interrupted and the Magistrate has the advantage of knowing the disputed issues. In some cases defence counsel may consider it unnecessary to call or may not call evidence from the defendant. In weighing up admissibility, or in the exercise of discretion, the fact that evidence has not been called by the defence may be a factor which the Magistrate will consider of significance in reaching his decision as to admissibility, as indeed it may be a factor in consideration of the ultimate question as to whether a case has been proved. This issue arises frequently in criminal trials in this Territory and I cannot recall one instance where an Aboriginal accused has been required to begin, whether voluntariness or the fairness discretion were involved. Daily experience in this Territory illustrates the difficulties Aboriginal people experience in giving evidence in courts, difficulties compounded by lack of comprehension of issues, shyness, language barriers and, at times, embarrassment and fear. Against' this background the same care and consideration must be extended by the courts (as the courts require of the police) to ensure that justice is done to a people who still suffer obvious difficulties. It is not irrelevant to bear in mind that in R. v Williams (above), one of the factors which led Wells J. to cll upon the Crown to begin was that the accused was "a full blooded tribal Aboriginal" with a limited grasp of English. As his Honour stated he applied "no rule-of-thumb ... but an appraisal of the circumstances as a whole".

I have already observed that to call upon the Crown to call the evidence in the course of a voir dire causes no delay and no complication. If voluntariness is established the evidence is there for consideration upon the final question of proof. If such evidence is excluded it will be ignored by the Magistrate in determination of the final issue. Before such a court a defendant's evidence (if any) relevant to the voir dire may be called at the conclusion of the entire prosecution case. A decision as to admissibility can then conveniently be made before the defence go into evidence or make submissions on law because upon that ruling may depend the conduct of the defence case. And of course, even where no voir dire examination is conducted, it is always open too the defence to submit at the close of the case that the court should not have regard to the confessional material. I say that as there are cases where an issue of voluntariness or admissibility may emerge in the course of cross examination as to factual issues. Counsel appearing for persons whose ability to give full instructions may be limited, must often set their sails in the course of the hearing.

To sum up I consider the learned Stipendiary Magistrate erred in insiting that the accused should lead off upon the voir dire, in dismissing counsel's submissions in such a summary manner, and in reaching a finding under such circumstances that the records of interview would be admitted.

The appeal was allowed and the matter was remitted for hearing before another Magistrate.

Mr D. Hore-Lacy instructed by the Central Australian Aboriginal Legal Aid Service appeared for the appellant.

Mr Ward instructed by the Crown Solicitor for the Northern Territory appeared for the respondent.