R v Thomas [2006] NTSC 87






FILE NO: 20609404

DELIVERED: 14 November 2006

HEARING DATE: 10 November 2006




Applicant: A Elliott
Respondent: P Dwyer

Applicant: Office of the Director of Public Prosecutions
Respondent: Northern Australian Aboriginal Justice Agency

Judgment category classification: B
Judgment ID Number: ril0618
Number of pages: 12


The Queen v Thomas [2006] NTSC 87
No 20609404







(Delivered 14 November 2006)

[1] The accused is charged with two offences arising out of an incident which occurred on 29 March 2006. The first is that he attempted to have sexual intercourse with his alleged victim and the second that he deprived her of her liberty.

[2] The victim was attacked as she walked home from work. She was near to the Daly Street Bridge when an Aboriginal male tried to drag her off the street. It is not disputed that the accused was that man. He was detained at the scene and was subsequently arrested and conveyed to the Darwin City watchhouse.

[3] At the time of his arrest the accused was described as being very drunk. As a consequence he was not interviewed until the following day, 30 March 2006. At about 8.43 am on that day he was spoken to by Constable Hodgson and Constable Kronk pursuant to s 140 of the Police Administration Act. He was told that he was under arrest and he was provided with a caution advising him that he did not have to answer questions if he did not wish to do so. He was asked if he wanted anyone to sit with him in the interview and he said that he did not.

[4] At 9.29 am on the same day the same police officers conducted an electronically recorded interview with the accused. At that time he was again cautioned and then asked what had happened on the previous day. He told the police officers of “grabbing” the girl and said that he was “trying to – like trying to rape her”. This admission formed the basis of the Crown case that this was a sexual assault.

[5] The accused now seeks to exclude the record of interview. He raises the issue of voluntariness and an onus therefore falls upon the Crown to establish that he was a voluntary participant in the interview. In the event that the issue of voluntariness is resolved against him, the accused seeks to have the record excluded in the exercise of my discretion.

[6] I heard evidence from Constable Budge who arrested the accused at the scene and described him as being intoxicated. I heard evidence from Constable Hodgson and Constable Kronk as to the circumstances of the conducting of the s 140 interview and then of the substantive interview. The accused did not give evidence before me but I have had the benefit of viewing and listening to the record of interview conducted on 30 March 2006.

A voluntary confession

[7] The first issue to be addressed is whether the accused understood his right to silence and exercised a free choice to speak or to be silent.

[8] In the s 140 interview he was given the usual caution and was then asked if he understood it. After some false starts he responded with a question:

“What happen if I don’t speak to you?”

In response he was told: “It’s okay”. He then asked what would happen in relation to the interview and was told that an interview would be conducted “upstairs … and then you will go court after that”. He was asked again if he understood and he said: “I don’t have to talk”. He was asked a further time whether he had to talk and he responded: “Yeah”. He was then taken through the caution again and the following exchange took place:

“Hodgson: So just again, if I ask you a question do you have to answer me or can you say no comment?
Thomas: No comment.
Hodgson: Yep, okay, so is that okay for you to be quiet and say nothing?
Thomas: Yeah.”

[9] When he was interviewed later that morning the officers concerned again cautioned him. That, of course, was an appropriate step to take given the break between the s 140 interview and the commencement of the record of interview. On that occasion he was asked about his level of education which was to grade 8. He confirmed that he could speak English but could only write it a “little bit”. He described himself as being “sober” at the time of interview. He stated that he had no trouble in understanding the interviewing officer. He correctly described what had occurred in relation to the giving of the caution at the time of the s 140 interview. In particular he said: “You said to me don’t have to answer my questions … and I can say ‘no comment’ like that”.

[10] The accused was then cautioned again and when asked whether he had to talk to police he responded: “Yeah. I have to tell the truth”. It is unclear whether, in the context of the conversation, he was saying that he was obliged to talk with police or whether he was indicating a desire to voluntarily tell the truth. The interviewing officer then asked him whether he had to answer if he was asked a question. There was a long pause and then he said: “Yeah”. It is unclear whether this response reflected a misunderstanding of the question in light of the preceding discussion. In any event he was reminded that he did not have to answer questions and Constable Kronk repeated the caution in different terms. The exchange finished as follows:

“Kronk: If I – if I ask you any question, if I speak to you, you can just sit there and be quiet, say nothing. It’s your choice. You can speak or you can not speak, okay?
Thomas: Yeah.
Kronk: So – so when I put something to you, when I say: ‘Angus did you do something?’ what can you do?
Thomas: Can say nothing.
Kronk: That’s right.”

[11] At that point both Constable Kronk and Constable Hodgson expressed themselves to be satisfied that the accused understood the caution.

[12] In my view the assessment by the constables was correct. Although the accused had at times provided answers that arguably suggested some confusion on his part he had, on a number of occasions, including the final question and answer set out above, indicated an understanding of the caution and his right to silence. He demonstrated a good understanding of the English language. The manner in which he conducted himself in the course of the interview that followed the caution and, in particular, his willingness to volunteer information in response to non-leading questions indicated that he simply wished to tell the police what happened. There was never any suggestion in any of his exchanges with the interviewing officers that he was reluctant to be interviewed. Indeed, watching the interview and listening to the accused indicates that he wished to provide information as to what had occurred.

[13] A confession to a crime is only admissible if it was voluntary in the sense that it was made in the exercise of a free choice to speak or be silent: R v Lee (1950) 82 CLR 133 at 149. In Collins v R (1980) 31 ALR 257 at 307 Brennan J expressed the position as follows:

“The ultimate question is whether the will of the person making the confession has been overborne, or whether he has confessed in the exercise of his free choice. If the will has been overborne by pressure or by inducement of the relevant kind it does not matter that the police have not consciously sought to overbear the will.”

[14] Later in the same case Brennan J said:

“If the evidence does not show that the confession was made in the exercise of a free choice by the confessionalist to make it, the confession is inadmissible.”

[15] A confession will not be regarded as involuntary simply because the person concerned is “by nature or temperament predisposed to confess and is furnished with an opportunity to do so”: Collins v R (supra at 307).

[16] In this case the interviewing officers failed to follow the guidelines in General Order Q2. In particular they failed to have the accused explain what is meant by the caution phrase by phrase. Had they done so the present challenge to the record may not have been necessary. Notwithstanding that failure, I am satisfied that the accused made the confession in the exercise of a free choice to do so.

[17] Having revisited the record of interview I am satisfied that the accused understood the caution despite some possible misunderstanding as discussed above. I am satisfied that he undertook the record of interview willingly and in the exercise of a free choice to speak knowing that he could remain silent, a position he articulated on more than one occasion. I am satisfied that the confession made in the record of interview was voluntary.

The use of an interpreter

[18] Counsel for the accused complained that the interviewing officers did not use an interpreter. Both constables were aware of the need to use interpreters in appropriate circumstances and of the availability of interpreters should an interpreter be required. Both advised that they considered the accused had a sufficient facility with the English language to fully understand the questions asked of him and to provide answers to those questions. A review of the record of interview confirms that to be so. There is no suggestion in any part of the body of the interview that the accused did not understand the question or did not provide an answer appropriately responsive to the question asked. There is no suggestion that he was confused or bewildered. Much of the interview involved him volunteering information without prompting from the interviewing officers. The interviewing officers were not required to repeat their questions or restructure their questions to make them more easily understood by the accused. His answers were responsive to the questions and reflected an understanding of what was being asked of him. In the course of the interview the accused acknowledged that he had no trouble in understanding what was being said by either constable. His responses to questions demonstrated that to be so. I see no basis for concluding that he was disadvantaged in the interview in comparison with members of the general Australian community: R v Butler (No 1) (1991) 57 A Crim R 451 at 454-455. To adopt the terminology of General Order Q2 there was a complete and mutual understanding between the interviewing officers and the accused. The officers formed the view that in the case of this accused the assistance of an interpreter was unnecessary. I agree with that assessment.

Advice as to charges

[19] When the accused was interviewed he was informed that the officers wanted to talk to him about “what happened yesterday”. He had previously been informed in the s 140 interview that he was under arrest for aggravated assault. The accused clearly understood what it was that the officers wished to discuss with him. When asked to: “Tell me what happened yesterday”, he commenced with what had happened earlier in the afternoon and progressed through the afternoon, without prompting, to describe having grabbed a lady and tried to take her in the bush “to like trying to rape her”. Counsel for the accused complains that the police did not tell the accused that he was to be interviewed in relation to not only an assault but an assault with sexual overtones. At the time of interview the police did not have any information that this was a sexual assault although the circumstances of the matter gave rise to a suspicion. It would have been inappropriate for the officers to raise with the accused the sexual nature of the assault in advance of questioning him regarding the assault as to do so would have risked incurring the criticism that any response of the accused was merely gratuitous concurrence with the interviewing officer. The accused can have been in no doubt as to the incident the police wished to discuss. He had already been charged with aggravated assault. He understood that the police wished to talk about his involvement in an assault of the victim. He described the incident without prompting. It was the accused who first raised the issue of a sexual aspect to the events of the day. I see no merit in this complaint.

Prisoner’s friend

[20] Counsel for the accused complains that the police failed to explain the role of the prisoner’s friend or to use the expression “prisoner’s friend”.
[21] In the s 140 interview the accused was asked whether he wanted someone contacted to let them know where he was. He responded in the negative. He was then told that the interview was going to be conducted and asked whether he wanted “someone sitting with you there or do you want to be on your own?” and he responded: “I will be right on my own”. When the interview commenced he was reminded that he had been asked if he wanted anybody in the room with him as a friend and whether he was still happy to be speaking to the officers by himself. He responded that he was. At no stage did either officer explain to him the function of a prisoner’s friend.

[22] The concept of a “prisoner’s friend” was discussed by Kearney J in Dumoo v Garner (1998) 143 FLR 245. His Honour pointed out that a prisoner’s friend is intended to serve a useful purpose and not simply be “a piece of appropriate furniture” in the room. Kearney J adopted the following observations made by Mildren J in an article entitled “Redressing the imbalance against Aboriginals in the criminal justice system” which is found in (1997) 21 Crim LJ 7 (at 10):

“The accused should be told that the function of the friend is to act in an advisory role to the accused and to assist him or her to understand the matters which the police wish to speak about, that preferably the friend should be someone who is able to speak the same language, and someone who is also reasonably fluent in English. The suspect should be told that a prisoner’s friend should be someone that he or she trusts and has confidence in, and will feel supported by. The suspect should also be told that he or she will be afforded the chance to speak privately to the friend before any formal record of interview takes place, that the suspect should choose someone who is aware of the rights of a suspect and the rights and duties of police when interviewing suspects, that the friend should be someone independent of the police, someone not likely to be afraid of the police and someone not involved in the investigation either as a suspect or as a witness.”

[23] In R v Weetra (1993) 93 NTR 8 Mildren J considered a case in which there had been an inappropriate choice of prisoner’s friend. His Honour observed that there could be no effective choice by an accused as to a prisoner’s friend unless the accused knew of the function of the prisoner’s friend. The accused should be advised of that function including that the prisoner’s friend is to act in an advisory role and to assist him in understanding the matters about which the police wished to interview him. He should be told that the accused will be afforded the opportunity to speak privately with any prisoner’s friend chosen before the interview is commenced and, if desired, during the course of the interview. In the absence of the provision of such information questions may arise as to whether or not a particular accused exercised his right to avail himself of a prisoner’s friend.

[24] In Dumoo v Garner Kearney J noted that in some communities it is unlikely that persons possessing the desirable qualities will be available but, nevertheless, it was desirable that the person to be questioned be told about the role of the prisoner’s friend. In the present case the accused was not told anything about the role and function of a prisoner’s friend. The interviewing officers failed to comply with the obligation imposed upon them.

[25] Notwithstanding that failure, the accused was clearly aware that he had the right to have a friend with him to support him. He chose to speak to the officers alone. He showed no sign of discomfort or concern regarding the interview process or the officers. He appeared to wish to tell his story and to do so without a friend being present.

[26] It is clearly desirable that police officers heed the advice of the Court in relation to providing appropriate information to an accused person regarding the role and benefits of a prisoner’s friend. In this case the officers concerned were remiss in failing to do so. However, in the circumstances, I do not regard that failure as having resulted in any unfairness to the accused.


[27] I have concluded that the confessional statements made in the record of interview were voluntarily made. I see nothing in the interview that would cause me to conclude that it should be excluded on the grounds that to receive it would be unfair to the accused. There is no suggestion that the evidence was unlawfully obtained and, in my view, there was no unfairness visited upon the accused in the course of the conduct of the record of interview. Further, there is no suggestion that the material contained in the record of interview is in any way unreliable. Its reliability is reflected in the fact that it was volunteered by the accused in circumstances where his will was not overborne and he had a clear understanding of what it was that the police wished to discuss with him. The information volunteered by him is consistent with information obtained from independent witnesses who were at or near to the scene at the time the victim was attacked. The information is consistent with those facts relating to the incident which, I am informed, the accused accepts as having occurred.

[28] Subject to the removal from the record of interview of material that is not relevant to the charges preferred against the accused, the record of interview is admissible and ought not be excluded in the exercise of my discretion.

[29] The record of interview will be received into evidence at the trial.