Robinson, Allan --- "R v Williams & Ors -- Cigar Store Indians and Juvenile Confessions" [1986] AboriginalLawB 20; (1986) 1(19) Aboriginal Law Bulletin 6

• R V Williams &Amp; Ors Cigar Store Indians And Juvenile Confessions

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R v Williams & Ors

Cigar Store Indians and Juvenile Confessions

R v Williams & Ors

Queensland Supreme Court at Mt Isa, Dowsett, J.

4 November 1985.

Casenote by Allan Robinson

Records of interview and oral confessions made by five Aboriginal boys charged with rape held inadmissible because their lack of verbal comprehension of English was such that they would have been unable to withstand the pressure of interrogation by police.

Psychological testing showed verbal comprehension rates of the accused ranged between 11.10 years and 7 years.

His Honour said that:

A child, especially an Aboriginal child, should be told that he has a choice to remain silent otherwise it is difficult to see how a court can ever be satisfied that he has freely chosen to speak. If he is to be told, he must be told in a way which he will understand. If care is not taken to explain the matter to him and his comprehension tested to ensure that the advice has assimilated, one may just as well speak to him in Greek ...The absence of a meaningful warning coupled with his (the accused child) being taken to the police station and questioned are, I consider, sufficient external circumstances to create a prima facie case of lack of voluntariness.

It would have been a simple matter to ask (the accused child) to explain to the police, after consulting (in) private with (the JP), his understanding of his right to silence, but no attempt was made to do this.

I cannot be satisfied that the perfunctory warning (the accused child) received, not tested for impact privately by (the JP), was sufficient to negative the oppression of the situation in which he was placed. I doubt that any 14 year old boy could be expected to cope with such a gross attack on his freedom, let alone one with only a limited ability to communicate verbally. Again, the confession must be excluded.

Regarding the Justices of the Peace who the police nominated to be present at the interview and who did not speak to the boys, His Honour said:

It seems little more than a solemn farce to have these men sitting there like statues while these children cope unaided with the niceties of the criminal law.

His Honour would also have excluded the confessions because the police had acted unfairly and unlawfully in not questioning the boys in the presence of a parent, guardian or someone nominated by them or the child, as was required by the Police Manual. His Honour held that the Manual, as part of the Administrative Directions of the Police Commissioner, has the force of law in Queensland as the Directions are part of the General Instructions which under Rule 10(2) (1) of the Police Act must be complied with by police.

Some interesting general comments made by His Honour include:

Characteristics peculiar to the accused or his race or social or age grouping may be relevant to the question of voluntariness but only in assessing the effect upon him of external factors which may go to voluntariness;

A mere tendency to respond to questioning is not sufficient to deprive a question of voluntariness;

The importance of ensuring that the appropriate warning is given and understood relates to voluntariness as well as to the exercise to exclude for unfairness.

Especially in the case of children and other people not experienced in our social and legal system.