Aboriginal Law Bulletin --- "Bob Dixon Jabarula v Svikart (Criminal law - illegal use of motor vehicles - admissibility of confessions - Anunga rules - right to remain silent)" [1984] AboriginalLawB 13; (1984) 1(11) Aboriginal Law Bulletin 8

• Bob Dixon Jabarula V Svikart
• Criminal Law-Illegal Use Of Motor Vehicles-Admissibility Of Confessions-Anunga Rules-Right To Remain Silent

---

Bob Dixon Jabarula v Svikart

Criminal law - illegal use of motor vehicles - admissibility of confessions - Anunga rules - right to remain silent

Bob Dixon Jabarula v Svikart

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

6 April 1984

The appellant was convicted in the Court of Summary Jurisdiction at Alice Springs of illegally using a motor vehicle, contrary to the provisions of Section 49 (I) (a) of the Summary Offences Act (N.T.). He was sentenced to 6 months imprisonment. The appellant lodged an appeal against the conviction to the Supreme Court of the Northern Territory on the grounds that the Magistrate "erred in law in admitting into evidence confessional material obtained in breach of the guidelines laid down by the Supreme Court in the case of R. v. Anunga" and that "he failed to exercise his discretion properly". The only evidence presented to the Court of Summary Jurisdiction which implicated the appellant was an account of oral admissions made to a police officer.

On 12 December 1983 the appellant was apprehended by police near Papunya in the rear seat of a stolen motor vehicle. The appellant was an Aboriginal man, with limited understanding of English, whose first language was Luritja. The appellant was taken into custody by the police and driven to the Papunya Police Station. Constable Roberts interviewed the appellant at the police station. A complete record of the interview, Was not prepared; Constable Roberts testified that he had made a handwritten summary of the questions and answers. Neither a prisoner's friend nor an interpreter was present during the interview.

Counsel for the appellant argued that the police had administered an inadequate caution. Counsel argued that the appellant had not been asked to explain in his own words the meaning of the caution in order to ascertain whether he understood his rights to speak to the police or remain silent.

After setting out the relevant passages of the transcript from the Court of Summary Jurisdiction Muirhead J. stated:

In the reasons he delivered the Magistrate referring to the "caution" stated, "The defendant was asked to repeat the substance of these simple statements and did so. From the evidence of the defendant it appears the defendant well understood his right to silence and the fact that he could get into trouble by answering the questions". With respect it is quite erroneous to say that the appellant was asked to repeat the substance of these simple statements and did so. The Magistrate's later observations as to the defendant's understanding of his right to silence do not find support upon the evidence. The Magistrate further commented that the appellant talked fully about the matter after being "fairly and effectively cautioned as to his right to silence". He stated further that Constable Roberts was "painstaking in his attempts to be fair to the defendant" and after observing that "adherence to each guideline will be expected by courts" stated "in this case the evidence of the police displayed to me a sound measure of their responsibility to be unscrupulously (sic) fair to the defendant".

I have no reason to think that the police endeavoured to be unfair but the mode of administering the caution hardly paid lip service to the observations of the Chief Justice in Anunga. The appellant was not a sophisticated Aboriginal. The evidence was this his mother tongue was Luritja, he was being questioned (quite unnecessarily) in his second language. There is a tendency in all of us to assume that as we may understand a person who is talking in his second language in a simple conversation in English, his understanding of our conversation is reciprocal. That is not so when the conversation involves rights or principles which are pretty confusing, such as an explanation of a right to silence followed by questioning of an offence and references to telling it all to a judge. It involves competing pressures and odd logic to the mind of many an Aboriginal person in custody - hence the very real need of painstaking care to ensure each phrase of the caution is truly comprehended. And it is for this reason that the use of an interpreter may be so essential.

After reviewing further evidence his Honour stated:

The admissions made by the appellant in the interview constituted the only evidence led by the prosecution which led to the conviction and imprisonment. The aid of an interpreter to ensure complete understanding was of great importance. A subjective decision that an interpreter was not necessary should only have been reached with caution, especially when such an aid to accuracy was so simply available.

In case there is any doubt I observe that the steps and precautions to be taken in the questioning of unsophisticated Aboriginal suspects and referred to in Anunga do not only apply to the situation where such an Aboriginal is being interviewed in the C.I.B. "interview room". They apply to all situations if the police wish a conversation upon interview to be admitted into evidence. The Learned Stipendiary Magistrate recognized the failures to adhere to basic guidelines referred to in Anunga, but he was satisfied as to voluntariness. Recognising as I do the advantage of a tribunal which has the opportunity of observing the witnesses, the record in this case speaks for itself. A departure from the guidelines does not necessarily impugn a confession. Here the defects or omissions were too significant to support a finding of admissibility. The evidence fell far short of the standard required to satisfy the court that the appellant's admissions were made in true understanding of his right to speak or remain silent. Those admissions being the only evidence tendered against the appellant the conviction must be quashed and the sentence of imprisonment set aside.

In the course of his judgement Muirhead J. delivered some general observations about police investigative practices and the operation of the Anunga guidelines:

It was common ground upon the appeal that the appellant's conviction was based solely on his admissions made to a police officer, Constable D.G. Roberts that he had taken the vehicle in question without the consent of the owner. The vehicle had been recovered by the police in the bush near Papunya shortly before the appellant was apprehended. The police interrogation took place soon after. No typewritten record of the interview was prepared. Constable Roberts made a precis of the questions and answers in his handwriting. The caution he administered to the appellant was signified in his notes, simply by the word "caution". In cases such as this where the form of caution is vital it is wise practice to record the words of the caution and the responses contemporaneously, accurately and fully. It may be a painstaking operation but it serves so often to prevent subsequent dispute and litigation.

It is almost eight years since what are now known as the Anunga guidelines were enunciated by the Chief Justice of this Court in R. v. Anunga and Others: R. V. Wheeler and Another [1905] ArgusLawRp 117; 11 ALR 412. They were enunciated because the court recognized the very real disadvantages of so many of the Aboriginal people in this Territory when confronted with an authority figure such as a policeman. It recognized also the dificulties the police experienced in, satisfying the courts that confessional material obtained was voluntary which involved proof that the defendant truly and fully comprehended his right to speak or remain silent.

In Coulthard v Steer 12 NTR 13, which was an appeal against a decision of the same Magistrate, I endeavoured to set out the importance of the guidelines and the necessity that they should be borne well in mind by the police and Courts of Summary Jurisdiction. They have gained wide acceptance in this Territory and elsewhere, they have received the approval of courts of superior jurisdiction. They were recently treated as containing critical criteria for admissibility by the Federal Court of Australia in its appellate jurisdiction. See Willie Gudabi v. The Queen (Federal Court - as yet unreported - delivered 10 February 1984). And my own experience is that they have served as a guide to promote a high level of fairness and efficiency in the course of police investigation in this Territory. Understanding of the guidelines and general adherence to them has promoted the interests of justice in this Territory, where the courts are continually dealing with Aboriginal people of varying degress of sophistication. Anunga made no new law which intruded upon authoritative decisions as to voluntariness or fairness. The guides lines were merely designed to ensure that those who by reason of their ethnic origins, by reason of their separate cultures and traditions, and by reason of embarrassment or fear would not suffer disadvantage in their dealings with the law.

Mr. J. Tippett instructed by the Central Australain Aboriginal Legal Aid Service appeared for the appellant. Mr. I. Williams instructed by the N.T. Crown Solicitor appeared for the respondent.