Special Provisions for Cautioning Aboriginal and Torres Strait Islander Persons
Legislative provisions introduced based on the Anunga Guidelines: R v Anunga (1976) 11 ALR 412. See reasoning of Forster J at 413:
'...Aboriginal people often do not understand English very well and that, even if they do understand the words, they may not understand the concepts which English phrases and sentences express. Even with the use of interpreters this problem is by no means solved. Police and legal English sometimes is not translatable into the Aboriginal languages at all and there are no separate Aboriginal words for some simple words like “in”, “at”, “on”, “by”, “with” or “over”, these being suffixes added to the word they qualify. Some words may translate literally into Aboriginal language but mean something different. “Did you go into his house?” means to an English-speaking person, “Did you go into the building?”, but to an Aboriginal it may also mean, “Did you go within the fence surrounding the house?”. English concepts of time, number and distance are imperfectly understood, if at all, by Aboriginal people, many of the more primitive of whom cannot tell the time by a clock. One frequently hears the answer, “Long time”, which depending on the context may be minutes, hours, days, weeks or years. In case I may be misunderstood, I should also emphasize that I am not expressing the view that Aboriginal people are any less intelligent than white people but simply that their concepts of certain things and the terms in which they are expressed may be wholly different to those of white people.
Another matter which needs to be understood is that most Aboriginal people are basically courteous and polite and will answer questions by white people in the way in which they think the questioner wants. Even if they are not courteous and polite there is the same reaction when they are dealing with an authority figure such as a policeman. Indeed, their action is probably a combination of natural politeness and their attitude to someone in authority. Some Aboriginal people find the standard caution quite bewildering, even if they understand that they do not have to answer questions, because, if they do not have to answer questions, then why are the questions being asked?'
If police reasonably suspect a relevant person is ATSI and want to question them they:
* must notify/attempt to notify a representative of a Legal Aid organisation that the relevant person is in custody, and inform the relevant person that this is going to occur (s 420(2) Police Powers and Responsibilities Act 2000 (Qld)) unless:
- the police know that the person has arranged for a lawyer to attend questioning (s 420(2)); or
- the police reasonably suspect, having regard to the person's level of education and understanding, the relevant person is not at a disadvantage in comparison with Australians generally (s 420(3)).
* must not question without allowing them to speak to support person, if practicable, in private; and the support person is present during questions (s 420(4)) unless:
- the person has voluntarily waived their rights (either in writing, or evidenced by an electronic recording), or
- the support person is unreasonably interfering.
Note also s25 of the Police Responsibilities Code.
See eg, R v Brown [2006] QCA 136.
Police must not question a relevant person who they reasonably
suspect is a child (s 421 Police Powers and Responsibilities Act 2000 (Qld)) or who has impaired capacity (s 422) unless: * before questioning starts, they have, if practicable, allowed the person to speak to a support person in circumstances in which the conversation will not be overheard; and * a support person is present while the person is being questioned. |
Support Person (PPRA Schedule 6)For Adult Aboriginal/Torres Strait Islander Persons
* Person chosen by suspect, or * Lawyer or representative of legal aid organisation, or * Person on official list For Children * Parent/guardian * Lawyer/Employee of legal services agency * Adult relative/friend acceptable to the child * If ATSI child & no-one listed above available, person on official list * If no-one above available - a Justice of the Peace For persons with Impaired Capacity * Parent/other adult carer |
Intoxicated Persons
When questioning a relevant person who is apparently under the influence of liquor or a drug (s 423) police must delay questioning until reasonably satisfied the influence of the liquor/drug no longer affects the persons ability to understand their rights and to decide whether or not to answer questions.
"A person may still be reasonably satisfied about a matter despite it being possible for another person to reach a different view based on the same material ... It is only if there is no evidence that could reasonably be seen to support a particular conclusion that it is possible to conclude that the original decision-maker was not 'reasonably satisfied'" (per Keane J in R v LR [2005] QCA 368 [44].)
See also R v Batchelor [2003] QCA 246.
"A person may still be reasonably satisfied about a matter despite it being possible for another person to reach a different view based on the same material ... It is only if there is no evidence that could reasonably be seen to support a particular conclusion that it is possible to conclude that the original decision-maker was not 'reasonably satisfied'" (per Keane J in R v LR [2005] QCA 368 [44].)
See also R v Batchelor [2003] QCA 246.
Persons needing Interpreters/where not a citizen/resident
If police reasonably suspect a relevant person is unable to communicate as from non-English speaking background/due to physical disability then (s 433) they must delay questioning and arrange for an interpreter's presence. Note also s 28 Police Responsibilities Code.
If a relevant person does not have citizenship/residency then police must advise of right to contact embassy and assist in this regard (s 434 Police Powers and Responsibilities Act 2000 (Qld)). Note also s 29 Police Responsibilities Code.
If a relevant person does not have citizenship/residency then police must advise of right to contact embassy and assist in this regard (s 434 Police Powers and Responsibilities Act 2000 (Qld)). Note also s 29 Police Responsibilities Code.