Pringle, Karen L. --- "Questioning 'Evidence' in R v An Aboriginal Youth" [1995] AboriginalLawB 41; (1995) 3(74) Aboriginal Law Bulletin 16

• Questioning “Evidence” In R V An Aboriginal Youth*
• Comment

---

Questioning “Evidence” in R v An Aboriginal Youth*

R v An Aboriginal Youth

Queensland Court of Appeal

Fitzgerald P, Davies and McPherson JJ

Unreported, 28 April 1995

by Karen L. Pringle

In the August 1994 edition of the AboriginalLB (See 3(69) AboriginalLB 15-16) the decision of the Supreme Court of Queensland in this matter was discussed. The Queensland Court of Appeal recently handed down its decision on the appeal by the Aboriginal youth against his conviction for manslaughter and the appeal by the Attorney-General as against sentence. The majority comprising McPherson and Davies JJA dismissed the appeals against conviction and against sentence. Fitzgerald P delivered a dissenting judgment holding that the appellant's trial miscarried, allowing his appeal and quashing his convictions.

McPherson JA noted possible weaknesses in the identification evidence (see CA No.294 and 307 of 1994, McPherson JA, p2) and the consequent importance of the admissibility of the video taped police interview where the appellant admitted that he had hit Tiernan beside a police van in the course of the fight on the previous evening and Tiernan had fallen over. (P3.) However it was alleged at the trial that these admissions had been procured by misrepresentation (p3) as at the time of the interview the police had been informed by only one witness that Tiernan had fallen over after the appellant hit him whereas the question or statement by the interviewer asserted that there were two. (P4.) On appeal it was submitted that White J had in view of the alleged misrepresentation been wrong in allowing the record of interview into evidence (p3) and later admissions to like effect were infected by the initial misrepresentation and were inadmissible. (P4. )

McPherson JA held that assuming that the admission was procured through misrepresentation and the relevant part or parts of the record of interview were inadmissible, White J correctly admitted the evidence as the appellant had already earlier in the record of interview expressly admitted that he had punched Tiernan. (P4.) According to McPherson JA "he volunteered, without being asked, that he had 'hit him once here, on the chest' ". (P4.) Therefore "the critical admission that the appellant had punched him preceded the alleged misrepresentation ... and so could not have been induced by it". (P4.)

McPherson JA then considered the submission that the record of interview should not have been admitted at the trial as the appellant was only 16 years old when interviewed. (Pp4-5.) He referred to paragraph 4.54(b) of the directives issued by the Police Commissioner to members of the Police Force for questioning persons under a disability which stated that all children under 17 years of age are to be regarded as under a disability because of their immaturity (p5) and further:

"If necessity arises to question a child for an offence, that child must be questioned, in the presence of a parent, guardian, or an adult person nominated either by the child concerned, or by such parent or guardian. If no person is nominated, an independent adult person, preferably of the same sex as the child, in whose presence the child does not feel overcome or oppressed in any way, should be present." (P5.)

It was submitted that the appellant's mother should have been asked to attend when the appellant was interviewed rather than a field officer [Mr Thompson] with the Aboriginal Legal Service at Cherbourg attending. (P5.) This field officer had not been nominated by the appellant or by the police but White I held that he was an independent adult person who in accordance with the directive did not overbear or oppress the appellant in any manner. (Pp5- 6.) The field officer had an hour-long conference with the appellant before the interview and said on the voir dire that there was "a combined sort of agreeance" to do the interview. (P6.) It was further submitted that it was not properly explained to the appellant that lie was not obliged to answer any questions at all. (P6.) On this issue McPherson JA referred to the comments of White J who thought the appellant understood this and who commented that "there is little reason to doubt that the appellant understood the significance of the interview". (P6.) On each of these issues McPherson JA concluded:

"No reason has been shown on appeal for disturbing her Honour's findings at the trial in relation to any of these matters; nor has it been demonstrated that she was wrong in exercising her discretion to admit the record of interview ... There is no evidence to suggest that the appellant's mother would have been better able than Mr Thompson to advise the appellant in the course of the interview; or that the admissions by the appellant were not made voluntarily; or that in the circumstances of his age, experience, background and fluency in English, they were unfairly obtained. Examination of the record of his evidence given on the voir dire tends in my opinion to confirm the impression that the appellant has no difficulty in speaking and understanding English."

(P7.) McPherson JA went on to deal with the necessity of the prosecution to prove beyond reasonable doubt that it was the appellant who killed Tiernan, in that the blow the appellant struck caused Tiernan's death. (P7.) He referred to the medical opinion at the trial and commented that the significance of some of the medical opinion "was said to be that it opened up the possibility that Mr Tiernan's fatal fall to the ground, producing the brain injury which ended in his death, might have been caused by something other than the punch delivered by the appellant". (P10.) He continued:

"It might have been caused by spontaneous rupturing of a pre-existing aneurism, or by sudden cardiac arrhythmia, either of which might have been induced by stress apart from that blow. The prosecution, so it was submitted, had failed to exclude those possibilities, and so had failed to establish beyond reasonable doubt that the appellant had killed MrTiernan." (P10.)

McPherson JA noted that there was a substantial body of factual and medical evidence on which the jury could properly have acted in rejecting the possibilities of rupturing of an aneurism or cardiac arrhythmia. According to him:

"The eye-witness evidence at the trial was uniformly to the effect that Mr Tiernan fell down on being punched. Even if rupturing of an aneurism or cardiac arrhythmia induced by stress was what had caused the fall, there was no valid reason for excluding the effect of stress contributed by the blow itself. Under s. 296 of the Criminal Code a person is deemed to have killed who does any act which hastens the death of another who, when the act was done, was labouring under some disorder or disease arising from another cause." (Pp10-11.)

McPherson JA, being of the view that "there is no basis for doubting the soundness of the verdict", (pl2) concluded:

"Confronted with this range of medical opinion, the jury may (as they were entitled and expected to do) have decided to apply their common sense to the factual evidence before them. Mr Tiernan was proved to have fallen backwards on receiving a punch to his face or his chest. He hit the back of his head on the hard surface of the street. Post mortem examination revealed extensive fractures in and radiating from that part of his head. Dr Naylor considered that the impact to the back of his head was 'really ... the most likely explanation for the bleeding within the brain and over the brain surface'. It should surely have been an astonishing coincidence if, immediately before he was punched and quite independently of it, Mr Tiernan had suffered rupturing of an aneurism, or cardiac arrhythmia, or some other episode rather than the blow that caused him to fall down backwards. The possibility was one that, on the evidence before them, the jury were entitled to exclude in deciding that it was the punch by the appellant which had, directly or indirectly, caused Mr Tiernan's death." (Ppll-12.)

Regarding the appeal against sentence by the Attorney-General, McPherson JA referred to the issues White J had considered but found it unnecessary to pursue the Attorney's appeal in further detail as in the court below the Crown prosecutor had accepted that a non-custodial sentence was appropriate in this case, and in light of recent decisions (see R v Tricklehank 1199411 Qd R 330, 338 and R v Melano (CA 393/1994)), the Attorney could not have expected his appeal to succeed. (P15.) In the safety of the verdict on the question of causation and the appeal against sentence, Davies JA agreed with the reasons and conclusions of McPherson JA (see CA No.294 and 307 of 1994, Davies JA, pp2 and 11). He also agreed with McPherson JA's conclusion on whether confessional evidence of the appellant should have been admitted into evidence.

Davies JA noted that the failure to comply with police directives was said "to be the failure to invite the appellant's mother to be present at the interview instead of Mr Thompson". (P5.) He referred to a second directive relating to the questioning of Aborigines which "requires that such of them as are relevantly disabled within the meaning of the directive be questioned in the presence of a solicitor or other legal adviser or person concerned with the welfare of that race; where that is not practicable then in the presence of an adult person in whom the person being questioned has confidence and by whom he feels supported". (P5.) Furthermore, he noted that White J rejected the application of the Anunga Rules to the present case (p5) but he found it unnecessary to express any concluded view on the extent of the application of these rules. (P5.) According to him, "there are ... no requirements of those rules, relevant to the present case, which are not encompassed by the above directives". (P6.) On compliance with the directives lie stated:

"No attempt was made ... to show that the appellant's mother would have been of any greater help to him in any relevant sense than Mr. Thompson. Indeed, notwithstanding criticisms which were made of Mr. Thompson's experience and capacity to advise the appellant, the only reasonable inference which can be drawn is that he was probably of greater help to the appellant than the latter 's mother would have been. Although relatively new to his job he had been in a similar position with other persons at the police station on about six previous occasions. Perhaps because of this he sought and obtained from the police and conveyed to the appellant what the police said were the likely charges to be preferred against him and the facts which would be alleged against him. During the course of Mr. Thompson's discussion with the appellant before the interview ... the appellant indicated that he wanted to tell his story to the police. He and Mr. Thompson then agreed that he would take part in an interview. Mr. Thompson was also a member of the Cherbourg aboriginal community and, although he had not met the appellant before that day, it was not suggested that he was a person who overbore the appellant in any way or that the appellant did not welcome his help."

(Pp6-7.) Davies JA commented that it was difficult to see where this submission led especially in the absence of evidence that had the appellant been properly advised he would not have participated in the interview or at least made the critical admission that he had punched the deceased or, that because he was not properly advised his confessional evidence was relevantly unreliable or untrustworthy. (P7.)

Davies JA went on to reject the submission that the appellant did not know that he need not take part in the police interview (p7) and concluded that "the appellant's interview, and each of the answers given in it, were given voluntarily". (Pll.) On the issue of the alleged misrepresentations inducing admissions from the appellant he held that:

"It is true that, at that time, the police did not have more than one witness who had seen the appellant strike the deceased and the deceased fall down. But by the time these statements were made by the appellant's questioner the appellant had already admitted punching the deceased. That was the critical admission ...

Moreover, the appellant did not assert in his evidence that either of these statements caused him to give any particular answers or affected the reliability of his answers. And of course, because prior to these statements being made the appellant had already made a number of admissions including the critical admission ... Ire did not and could not have asserted that they induced him to participate in the interview." (P7-8.)

On the question of causation Fitzgerald P concluded that "the jury was entitled to be satisfied, to the requisite standard, from the surrounding circumstances including the sequence of events, that the appellant's punch either caused Mr Tiernan to fall or contributed to arrhythmia which caused him to fall." (CA No.294 and 307 of 1994, Fitzgerald P, p5.)

Fitzgerald P went on to consider the appellant's submission that his admissions were obtained in circumstances which made it unfair to use them against him and that White J should have exercised her discretion to reject evidence of the admissions. (P5.) He referred to the "appellant's all-too-common life experience" (p6) which "had left him poorly educated, unemployed, angry, aggressive and sometimes violent, especially when intoxicated".(P6.) He observed:

"Cherbourg is an unattractive town, and young people living there have virtually no cultural, recreational or employment opportunities; many are bored, and gravitate to Murgon, which is about five kilometres away, where they drink in the hotel and, often, fight; fighting between young [Alborigines and white persons is common, and frequently leads to the police charging the youthful offenders, who quickly build up a criminal record, and thus are initiated into a lifestyle which often ends in tragedy, both for the [Alborigines and the victinis of their violence, which frequently is associated with the excessive consumption of alcohol." (P6.)

Fitzgerald P referred extensively to the directives from the Queensland Policemans Manual (see General Instruction 4.54 and following). (P7-10.) He noted that before Mr Thompson had spoken to the appellant, the Police Sergeant told Mr Thompson that he wanted to interview the appellant about the attempted murder of Tiernan as well as some other matters. (P10.) This information was passed on to the appellant by Mr Thompson. (P10.) Fitzgerald P commented that the appellant "had been unsure why the police wanted to interrogate him; understandably, he was surprised at what he was told by Mr Thompson, and denied having attempted to murder the deceased". (P10.) Fitzgerald P continued:

"Later, Mr Thompson interrupted his discussion with the appellant and ... asked ... for further details of the proposed charges; he was told attempted murder, grievous bodily harm, robbery with violence and serious assault on the police. He was also informed that the basis for the attempted murder charge was that the appellant 'hit Dermot Tiernan, he fell backwards and hit his head on the pavement, and the robbery with violence was that the police had witnesses to say that he picked up money, whether from him or near him I'm not too sure; and then ... he took off'. Mr Thompson went back to the appellant and informed him of what he had been told. Then, according to the trial judge's summary of Mr Thompson's evidence on voir dire: 'Mr Thompson said that the accused denied taking.the money and, in effect, wanted to tell his story to the police. He said that he and the [appellant] made something of a combined agreement that the [appellant] would be interviewed, and he, that is David Thompson, conveyed this to the police after about an hour of talking with the accused' ". (P11)

According to Fitzgerald P, White J had "disregarded the context in which the questions which elicited admissions were asked and answered" (p18-19) and in exercising her discretion in favour of admitting evidence of a number of admissions appeared to consider "only the content of the actual questions asked, and made no reference to what had preceded the interview". (P12.)

Fitzgerald P rejected any suggestion that the Court should permit the Police Commissioner to determine conclusively what conduct by police officers in the interrogation of suspects is acceptable. (P15.) According to him such a suggestion appeared inconsistent with a number of directives and "in any event, compliance with, or breach of, the Commissioner's directives is not conclusive either way: it remains for the Court to exercise its discretion by reference to all the circumstances". (PI5.) He also rejected White J's opinion that the Anunga Rules were "particularly directed to tribal people withdrawn from the European way of living, and where usual language is English". (P15.) To Fitzgerald P that view was too narrow and he noted that the current Operational Procedures Manual directs reference to the Anunga Rules as a guideline to the interview of Aborigines and Torres Strait Islanders generally. (P15.)

Fitzgerald P referred to White J's "insistence on evidence, called by one or both of the parties, on an issue such as cultural disability" (p16) as being in accordance with established practice but commented that the perceptions of the judicial role are widening. (P16.) He correctly recognised that "there might be difficulties in providing necessary evidence in admissible form" (pl6) and that "there are cultural problems associated with the reliability of confessional statements made by [Alborigines who are interrogated by white persons in positions of authority" (p16) and a "recurring necessity to produce evidence of those cultural factors is quite impractical". (P16.) He stated:

"There is increasing acceptance of the need for greater cultural awareness in the legal system, but problems such as cultural disability would be better addressed legislatively, after proper consultation and debate directed by a body such as the Law Reform Commission." (P16.)

In referring to breaches of the Commissioner's directives, Fitzgerald P stated that "if, as directed by para. 4.54(e), the police officers present at the interview knew in advance all the elements of the offences specified to Mr Thompson, they must have known that there was no basis for, for example, a charge of attempted murder". (P19.) Therefore, "what they said to Mr Thompson implicitly misrepresented that they did have a basis for such a charge". (P19.) Further, according to Fitzgerald P, there was a breach of para. 4.54(h)(iii) which deals with police officers never stating that they have certain evidence when they do not. (P19.) He stated that "although the reference to witnesses directly related to the appellant's action in picking up Mr Tiernan's wallet, the obvious implication was that the witnesses had also seen the punch with which the appellant struck Mr Tiernan only a moment earlier." (P19.) Fitzgerald P stated:

"The factors which influenced the trial judge to admit evidence of the appellant's admissions were that he was anxious to give his account of what had occurred and his initial admission preceded any misstatement made to him by a police officer in the course of the interview. However, a material misrepresentation had occurred earlier which directly affected both these matters; the appellant's anxiety to tell what he knew cannot be separated from his belief, induced by police statements, that they had information which warranted charging him with attempted murder. His admissions of what lie had done occurred in the course of attempting to persuade the police officers that the extremely serious charges foreshadowed were not warranted by what lie had done". (P19)

Fitzgerald P also referred to the appellant's Aboriginality and life experience as causing him to be "at a disadvantage in respect of the investigation, in comparison with members of the general Australian community". (P20.) However, according to him:

"... even if the appellant's [Alboriginality be disregarded - and I do not think that that should be done - he was only 16 years old. He should not have been interviewed without having had a competent adult person to counsel him and assist him in the course of the interview. I intend no criticism of Mr Thompson ... However, he did not have the knowledge or experience to adequately perform the role in which he was cast by the police officers; her Honour's statement that he 'was not a person nominated by the police is incorrect, except in the sense that the police approached him only because he 'was a person employed by the Cherbourg community' ... Mr Thompson seems to have had only limited knowledge of the evidence against the appellant, and no idea that there was no possible basis for, for example, a charge of attempted murder; quite likely, he did not know the legal elements of the various charges referred to by the police officers, or appreciate any deficiencies in their evidence ... He was in no better position than the appellant himself to decide what was in the appellant's best interests. Of course, the advice which he did give, like the appellant's decision, would have been influenced by the police misstatements, which he was not in a position to effectively assess." (Pp20-21.)

Fitzgerald P noted, amongst other matters, that his approach may "not coincide precisely with the argument advanced for the appellant at trial or on appeal" (p22) and that "the evidence from the appellant ... does not conform to my conclusions". (P22.) Further he commented that lie did "not find it helpful to address the issue of fairness by an inquiry as to whether the appellant's mother would have been more or less helpful to him than Mr Thompson". (P22.) He was "quite prepared to accept that, in the circumstances, neither could have assisted him to deal with the police assertion that unwarranted charges were to be laid, leading him to want to tell his story". (P22.)

Fitzgerald P therefore held that the critical admissions were not made before any misstatement by the police as the police assertion of unwarranted charges preceded any admissions by the appellant. (P23.) In his view, "in all circumstances, including the reliability of his admissions, evidence of the appellant's admissions in his interview with police should not have been admitted." (P23.)

The conclusion of Fitzgerald P "that the appellant was induced to participate in the interview and to give the answers which lie did by an implied representation by the police, from their telling Mr. Thompson that they intended to charge the appellant with attempted murder, that they had evidence sufficient to support such a charge" (CA No.294 and 307 of 1994, Davies JA, p9) was expressly rejected by Davies JA, who stated:

"The difficulty with that conclusion is thai the appellant, in evidence, not only swore that lie could not remember any such charge being mentioned but asserted that it was his understanding that he was there for questioning only about the theft of a wallet. I would therefore reject the view, which was not contended for on behalf of the appellant either here or below, that he participated in the interview under a belief, induced by police misstatements, that they had information which warranted charging him with attempted murder." (P9.)

Comment

This case provides yet another example of the tragedy which can result from circumstances of Aboriginal disadvantage. Fitzgerald P correctly identified that Aboriginal people are disadvantaged in our criminal justice system. Regardless of the merits of this particular case, it is hoped that his call for the introduction of specific legislation aimed at addressing problems of cultural disability faced by Aboriginal people in Queensland's criminal justice system will be promptly acted upon by legislators and policy makers. The Queensland Law Reform Commission as well as the Aboriginal Justice Advisory Committee would have a key role to play in this process.

* Publication of identifying matter is restricted in accordance with section 62 of the Juvenile Justice Act (1992) QId.