Chisholm, Richard --- "McKellar v Smith; Booth v Smith" [1983] AboriginalLawB 7; (1983) 1(7) Aboriginal Law Bulletin 8

• Mckellar V Smith ; Booth V Smith
• Criminal Law And Procedure-Children-Admissibility Of Confessions-S.81c Of Child Welfare Act-General Discretion Over Admittance Of Confessions-Relevance Of Aboriginality.

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McKellar v Smith ; Booth v Smith

Criminal law and procedure - children - admissibility of confessions - s.81C of Child Welfare Act - general discretion over admittance of confessions - relevance of Aboriginality.

McKellar v Smith ; Booth v Smith

Supreme Court of NSW at Sydney (Miles J)

22 December 1982

Casenote by Richard Chisholm

Two Aboriginal youths, technically `children' and not 'young persons' because they were just under sixteen years, were convicted in the Wilcannia Children's Court of illegally using a car and stealing items from it. The evidence against them, described by the appeal judge as `meagre in the extreme' consisted only of admissions allegedly made when they were picked up, and later when interviewed at the police station.

The youths applied to the Supreme Court of NSW for declarations and orders to set aside the findings of guilt and orders committing them to institutions. The grounds were that the magistrate should not have committed the confessions into evidence.

Miles J held that the onus on the prosecution to establish that a confession is voluntary is discharged by proof on the balance of probabilities, citing R v Warren (NSW Court of Criminal Appeal, July 1982, unreported). His Honour then considered whether the confessions should have been admitted. The evidence of the prosecution, on the voir dire, was that the police spoke to the youths on the street, where, after being cautioned, they admitted the offences, and then took them to the police station. There they were placed in separate cells. The boys said they had no parents or relatives in Wilcannia and would like Mrs Joyce Williams to be present at the interview. Mrs Williams was fetched and was present at the interviews.

The boys' case was that they had not admitted the offences; they had not been cautioned; they had been threatened and abused; and that they made the admissions in the police station because they were afraid. The magistrate believed the police.

Although Miles J could not overturn the magistrate's findings of fact, he held that in a number of ways the magistrate had erred in admitting the confessions. These may be summarised:

1 . The magistrate wrongly assumed that the test of 'voluntariness' was exhaustively set out in Crimes Act s.410. However, the elements of voluntariness go beyond that test: see Dixon v McCarthy (1975) 1 NSWLR 617 at 638; McDermott v R [1950] HCA 25; (1950) 82 CLR 133 at 150 per Dixon J.

2. The magistrate did not correctly apply Child Welfare Act 1939 s.81C which requires in the case of `children' the presence of certain independent persons, namely parents or guardians, or a legal practitioner, or a person having the parents' consent. No such persons were present. Mrs Williams did not qualify because she was not there with the consent of a parent or guardian. In the absence of such persons, the section requires the court to be satisfied that there was a proper reason why none of these persons was present. On this, the magistrate erred because the Aboriginal Legal Service solicitor lived in the town. Even on the prosecution's case, the boys had not been told that the solicitor could attend. It was therefore wrong for the magistrate to find there was `proper and sufficient reason' to admit the confession.

3. Apart from s.81 C, the magistrate should have excluded the confessions on his general discretion. There are two aspects to this. A confession may be excluded if (i) it is unfair to use it as evidence: e.g. McDermott v R (1948) 76 CLR 501; R v Lee (1950)82 CLR 133, or (ii) if it has been unlawfully or improperly obtained, in which case the court must weigh up the need to convict guilty people against the need to stop the authorities from acting improperly: e.g. Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54. Both aspects are involved when confessions are obtained by unfair or unlawful behaviour by the police: Clelland v R, (unreported, High Court, 19 September 1982). But the magistrate did not consider the second aspect. This was an error, because the boys had been arrested and detained for the purpose of questioning, not for the purpose of taking them before a justice as soon as practicable: Bales v Parmeter (1935) 35 SR 182, Dallison v Caffrey (1964) 2 All ER 610.

Miles J went on to say that although he had found :n favour of the boys without considering their Aboriginality, this might well be relevant in cases involving confessions. His Honour's remarks may prove valuable in confessional cases and should be quoted in full:

While the position of the Aboriginal people in New South Wales has not been regarded as such that it requires the formulation of a particular body of guidelines, like those enunciated in Anunga, the history of relations between Aboriginals and law enforcement authorities, particularly in the western parts of the State, should put a tribunal on notice that an Aboriginal person may be at a substantial disadvantage in the interrogation process. As Brennan J put it in Collins v R [1980] FCA 72; (1980) 31 ALR 257 at p.311:

"The rule is the same for the Aboriginal and the non-Aboriginal but the consequences of applying the rule may vary if a particular Aboriginal exhibits, in given circumstances, a different strength of will, or of understanding or of sophistication from that exhibited by a non-Aboriginal."

In this connection, too, lawyers should not continue to ignore the provisions of the Racial Discrimination Act 1975 nor to overlook the possibility that courts may take judicial notice of the ratification by this country of the International Covenant on Civil and Political Rights, the Declaration of the Rights of the Child and other international instruments which contain provisions and establish standards which may be relevant to the exercise of judicial discretion. (See Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 56 ALJR 625 and Murphy J., dissenting, in McInnis v The Queen [1979] HCA 65; (1979) 143 CLR 575 at p.593).