Director of Public Prosecutions v Khan (Ruling)
[2024] VCC 2148
•11 July 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00688
| DIRECTOR OF PUBLIC PROSECUTIONS | Prosecution |
| v | |
| AJMAL KHAN | Defendant |
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JUDGE: | Kelly | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 July 2024 | |
DATE OF RULING: | 11 July 2024 | |
CASE MAY BE CITED AS: | DPP v Khan (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2148 | |
RULING
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Subject:CRIMINAL LAW
Catchwords: Admissions — Record of Interview — Application to exclude — Admissibility — Interpreter — Vulnerability — Whether evidence obtained improperly — Significant probative value — Whether unfair in the circumstances — Legal advice provided by non-lawyer — Evidence deemed admissible
Legislation Cited: Evidence Act 2008 (Vic)
Cases Cited:R v Plevac [1998] 1 VR 570; DPP v Hollis [2019] VSCA 110; R v Anunga (1976) 11 ALR 412; DPP v Hou [2020] VSCA 190
Ruling: The police interview conducted 11 January 2022 is relevant and admissible.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr T. Crouch | Office of Public Prosecutions |
| For the Defendant | Mr H. Moodie | Stary Norton Halphen Criminal Lawyers |
HIS HONOUR
Introduction
1On indictment N12509137.1 Ajmal Khan (‘the Accused’) is charged with 1 count of attempted rape and 2 counts of rape. The Accused has applied to have his police interview conducted on 11 January 2022 excluded pursuant to either section 138 or 90 of the Evidence Act 2008 (‘the Act’).
Circumstances of alleged offending
2On 23 December 2021, the accused and the complainant (‘SH’) met on the dating app ‘Skout’. After a few days of communicating through the app, they exchanged phone numbers and began using ‘Whatsapp’ to communicate.
3Between 25 and 26 December 2021, the accused and SH exchanged messages proposing to meet in person. They discussed suitable times and the accused said he wanted to come for sex. SH responded with messages to the effect that she did not want to have sex and that she does not have sex the first time she meets someone. They agreed to meet on 26 December and SH provided her home address.
4The accused arrived at SH’s home around 7:20PM, at that time they were alone in the house. SH alleges that he asked if he could kiss her and she responded with words to the effect of ‘yes but that’s it’. She stated that he tried to put his hands inside her underwear and she pushed him away and said no. She states this was repeated a few times.
5SH alleges the accused took her hand and placed it on his crotch so that she could feel his erect penis. She states that he asked if he could show her his penis. She responded with words to the effect that he could but they were still not having sex. She stated that they agreed to enter the bedroom.
6SH alleges that the accused took her clothes off, pushed her down on the bed and tried to remove her underwear several times. She states she said no each time he tried and she attempted to push him off. She alleges that he grabbed her right wrist and held it down and then pulled her underwear to one side and attempted to insert his penis. This is the subject of charge 1 — attempted rape.
7SH alleges that the accused then inserted either one or two fingers into her vagina. She states she said ‘ouch’ and told him he’d hurt. He said ‘sorry’ and kissed her. This is the subject of charge 2 — rape.
8SH alleges that the accused removed his fingers from her vagina and then inserted his penis into her. She continued to say no and tried to push him off. This is the subject of charge 3 — rape. She states that she moved her body backwards and pushed his shoulder with her left hand. She said that once his penis was no longer inside her they had a short conversation whereupon he apologised several times and she asked him if he’d ejaculated and he responded ‘yes’.
9The accused allegedly then had a shower and was asked to leave. SH says he apologised several more times before leaving.
10SH contacted her friend using snapchat and sent him voice messages saying that she’d invited the accused over for coffee, he’d taken it further, she’d told him to stop but he didn’t. Her friend told her she should report the matter to the police.
11At approximately 7:42PM, SH contacted Mernda Police Station.
12On 11 January 2022, the accused was interviewed by police with the assistance of a Pakistani interpreter.
Evidence of witnesses
13The Accused testified that on the day of his interview he was contacted by Detective Senior Constable Lauren Shepherd and asked if he could attend the Mernda Police Station to answer some police questions.
14Once he arrived at the station, through a Pashto interpreter he was informed that he was in police custody and may be charged with an offence, but also that he was allowed to talk to the consulate, a friend or a lawyer. Officers attempted to obtain either legally aided or private representation, before the Accused dialled a phone number for a local firm.
15The Accused spoke to a man on the phone who advised him to give a ‘no comment’ interview, and if the police remanded him in custody the firm would arrange for a bail application. He was not informed of any of his rights as a suspect, including the right to remain silent save that he was told to make no comment.
16The Accused claims the man he spoke to was Mr Mitchell Fraser, who was at the time a law clerk of the firm Garde Wilson Lawyers. Mr Fraser is unable to recall whether the phone conversation took place, however accepted that it was not uncommon for such calls to be transferred through to the work phone that he had in his possession. In addition, a photo was tendered at the application depicting a sticky note apparently created by officers following the phone call and which contained Mr Fraser’s name and the contact information of Garde Wilson Lawyers. The Accused claims he was told by a police officer at the time “this is your lawyer”. He claimed he would never have followed the advice of the person on the phone had he known the person was not a qualified lawyer.
17The Accused says that after he had spoken to someone on the phone, officers took his phone and had a further conversation with the person on the other end of the phone. The Accused was then taken into an interview room, at which point he asked if his lawyer could be present during the interview due to his concern that he had not received proper legal advice and was scared of the influence of his incarceration on his visa status and his standing in his local community.
18The Accused stated that he repeatedly responded with “no comment” responses to the police interviewers but felt pressured by the officers’ continuing questioning of him. He says he gave in and began to answer their questions. He said the pressure of relentless questioning made him believe he was not allowed to remain silent.
19Under cross examination the Accused stated that he understood what the interpreter told him, and reaffirmed that he did not want to give an interview without a lawyer, and that when he was asked questions about SH he had indicated to police that he did not want to say anything about this topic.
20He said at the time he did not know whether a lawyer was coming and he was not in his senses, so when the police officers continued to ask him questions he felt he had no choice but to respond. When he was asked about portions of the transcript of the record of interview in which he was told by officers that he was entitled to have a lawyer present, he responded that he was unsure whether a lawyer would come, but nevertheless felt pressured to answer the officers questions.
Senior Constable England
21SC England is an officer assigned to the Mernda Police Station. She confirmed she made a statement in relation to the impugned interview on the 22nd of September 2022, and confirmed its accuracy prior to attending court to give her evidence.
22She confirmed that she was the corroborator of the interview of Mr Khan, She confirmed that an interpreter was present with Mr Khan from the moment he was placed into custody, and DSC Shepherd made arrangements for Mr Khan to obtain legal advice over the phone in response to his request.
23She was provided her police notes from the night in question, and confirmed they described phone calls to Victoria Legal Aid and then a private firm before ultimately landing on a phone call to Mitch Fraser from Garde-Wilson Lawyers. On SC England’s evidence, Mr Fraser was then being briefed with DSC Shepherd prior to offering advice to Mr Khan, after which DSC Shepherd took down the details of Mr Fraser and gave the phone back to the Accused. She confirmed that all of this would have occurred in the fingerprints room of the police station.
24She denied that police officers were coming in and out of the fingerprints room whilst Mr Khan was receiving legal advice, but described the door to the fingerprints room as being partially open at the time and confirmed that she and DSC Shepherd would have been down the hallway at the charge counter whilst Mr Khan received this advice.
25She confirmed that her notes demonstrate at one stage in the night Mr Khan queried whether he would be going home that night, and how long he was going to be at the police station. She confirmed DSC Shepherd told Mr Khan that hopefully he would be at the station only about an hour, following which Mr Khan declined to contact a friend.
Detective Senior Constable Shepherd
26DSC Shepherd is the informant in this matter, and conducted the impugned interview alongside SC England. She authored a statement on the 12th of November 2022, and adopted its contents as true and correct.
27She clarified that she had told Mr Khan both on the phone and whilst at the police station that he would be going home that night.
28She confirmed that at the police station she had advised Mr Khan that he was under investigation for the crime of rape, and also informed him of his legal rights and established that he was not an Australian citizen.
29She confirmed that at this point the Accused indicated he wanted to speak to a lawyer, following which DSC Shepherd made efforts to contact Victoria Legal Aid and private lawyers on the Accused’s behalf. Unable to do so, DSC Shepherd handed the Accused’s phone back to him, enabling him to call someone whom both he and DSC Shepherd assumed was a lawyer.
30DSC Shepherd then briefed the person on the other end of the phone call about the nature of the charges they wished to discuss with the Accused and that Mr Khan would likely be summonsed at a later date. She then gave the phone back to the Accused before leaving him in the fingerprinting room so he could obtain legal advice.
31She agreed with SC England’s evidence that no officers entered the fingerprinting room whilst the Accused received legal advice, but that the door to the room would have been left ajar during this period. She confirmed that she and SC England would have been standing approximately 4 to 5 meters away from the entrance to the fingerprinting room whilst the Accused obtained his legal advice.
32DSC Shepherd was then taken to a transcript of the interview and asked to compare the manner in which she cautioned the Accused with the approach contained in the Victoria Police Manual in relation to interviews and statements. The relevant passage of the manual is in these terms:
1.2 How to advise a suspect of their caution and rights.
To give a person their caution and rights, the police member must read aloud the Preamble to interview card (Form 252A).
To confirm that the caution and rights are understood, the police member should ask the person to repeat what has been said, in their own words.
If the person has difficulty doing this, consider whether the person has a cognitive impairment or needs an interpreter. See sections 7 or 14.
33She confirmed that her caution did not include having the Accused repeat the information in his own words, but denied that her caution falls foul of the second dot point in 1.2, on the basis that that point is a recommendation not a requirement. She said it was not enough that Mr Khan was a foreign national to enliven the requirement as he did not indicate that he did not understand the caution.
34She agreed that at various points throughout the interview Mr Khan indicated that he did not want to answer particular questions without a lawyer being present, but denied that continuing to ask Mr Khan questions during the interview constituted pressuring or encouraging Mr Khan to provide answers. She stated that standard police interview practice involved putting the allegations to the interviewee and then asking questions about them.
35She confirmed that at the end of the interview the topic of collecting DNA samples from Mr Khan was raised with him, and that Mr Khan’s statement “what should I say then” did not cause DSC Shepherd any concern as to his comprehension.
Mitch Fraser
36Mr Fraser has been a law clerk at Garde-Wilson Lawyers for three and a half years and was employed there at the time of the relevant interview. He is not a qualified lawyer and is still studying a law degree. He agreed the contact details that were given to police were his contact details, he said the phone number and email address were used by the entire firm. He gave evidence to the effect that he does not give legal advice over the phone however does on occasion relay advice from his supervising lawyer when she is unable to take the call. He said he could not specifically recall having a phone conversation with Mr Khan but conceded it was possible. He said that if he were to relay advice it would be generic and along the lines of ‘just say no comment’. He said at times file notes were not taken in relation to these conversations and there was no file not in relation to this matter.
Nick Jane
37Mr Jane is the instructing solicitor currently acting on behalf of Mr Khan and gave evidence in relation to his firm’s procedures in giving pre-interview legal advice to a person in police custody. Mr Jane gave evidence that he is currently a Partner at Stary Norton Halphen which he said was the largest private criminal defence firm in Victoria engaged in legal aid work. He said his firm employed approximately 15 lawyers and that he often provides training in relation to pre-interview advice to junior lawyers as part of his role, both informally and formally as part of Continuing Professional Development (‘CPD’) training.
38He described the normal procedure of pre-interview advice at his firm and the practice he himself follows as:
a)A call goes to an after-hours number which is diverted to a rostered lawyer’s phone. The rostered lawyer has the phone for about a week at a time;
b)The lawyer first speaks to an officer with some knowledge of the matter, such as the informant, to try to ascertain what the charges are, what the context of the offending is and generally try to obtain as much information as possible;
c)The lawyer will also try and get information as to the possibility of bail or remand as well as barriers to understanding such as cognitive impairments, disability, language or youth;
d)If another person is present such as an Independent Third Person (‘ITP’) or an interpreter, the lawyer will speak to them to ascertain capacity for involvement or level of interpretation before speaking to the client or potential client;
e)The lawyer would then try to ascertain how much the person in custody understands, possibly by reference to asking them to repeat or explain things back to them;
f)The lawyer would explain their options and give an opinion as to the recommended course of action, most often to make a no comment interview;
g)The lawyer would explain their right to silence, that they can answer no comment for the entirety of the interview, explain that police or the courts can’t draw any adverse inference from staying silent and that if they choose to make no comment, that they should do so for the entire interview;
h)The lawyer would inform the client about the common practice of police to put the allegations to them and advise them to continue making a no comment at that stage of the interview;
i)The lawyer would consider the nature and seriousness of the allegations as well as the circumstances of the person and make a forensic decision as to whether there was a need to delay the interview in order to attend in person.
39Mr Jane added that it was his practice to ensure a file note is always taken, usually a note on his phone or on pen and paper and then added to the file the next day.
40Mr Jane said that at his firm, non-lawyers do not give pre-interview advice. He agreed that he had never worked at any other law firm however maintained that all lawyers who were responsible for the after-hours phone including junior lawyers were trained to give broad, in-depth and comprehensive advice about a person’s legal rights to the best of their ability.
Improperly obtained evidence – s 138
41Mr Moodie submitted that pursuant to s 138 of the Act, the admissions the accused made in his interview were improperly obtained and the undesirability of admitting the evidence outweighs the desirability of admitting it when one has regard to the circumstances in which the admissions were obtained.
42He referred the court to the following statements of principle provided by the New South Wales Court of Criminal Appeal in R v Plevac:
Police may, in the course of investigation, interrogate a suspect who is willing to answer their questions, and that interrogation may include putting to the suspect the facts as the police know, or believe, or suspect them to be, in order to ascertain what, if anything, the suspect will say about them.
Such questioning must be fair and not amount to ‘intimidation, persistent importunity or sustained or undue insistence or pressure’, but questioning is not to be regarded as unfair merely because it is persistent.
Police should not persist with such an interrogation after the suspect has indication that he or she does not wish to answer further questions, although merely because a suspect says he does not wish to answer, or will not answer, any further questions does not render inadmissible answers to further questions which the suspect does answer provided the questions are fair and proper and the answers are otherwise inadmissible.[1]
[1] [1998] 1 VR 570, 583.
43He argued that the informant’s questioning of the accused after he asserted his intention to give a “no comment” response amounted to an impropriety. He relied on the following factors to assert that the accused was in a position of vulnerability:
(a)The accused had been told he was suspected of committing a serious criminal offence; and.
a)The accused was not an Australian citizen or a permanent resident; and
b)The accused had no apparent understanding of Australia’s criminal justice system; and
c)The accused had no prior dealings with police; and
d)The accused required an interpreter
44Mr Moodie argued that the informant made no attempt to ensure that the accused understood his right to silence. She did not ask him to repeat what he had been told in his own words as is recommended in the Victorian Police Manual. It was submitted that in circumstances where the informant was aware of his vulnerabilities, she should have ascertained whether he understood the caution and asked him to explain the caution in his own words.
45If a failure to have an accused explain in his own words the meaning of the caution and rights administered to him in a police interview amounts to an impropriety or illegality engaging section 138 of the Act, no authorities were brought to my attention in support of such an argument.
46Mr Moodie directed me to a portion of the interview where Mr Khan told police that “without lawyer I’m not going to give any comment” (emphasis added). He argued that the accused said on fifteen separate occasions that he did not wish to comment and submitted that the informant continued to ask questions. He relied on the accused’s answer at the end of the interview during cautioning about his DNA sample when the accused said ‘What should I say then?’ Mr Moodie argued that this question demonstrates that the accused did not understand his right to silence.
47Mr Crouch submitted on behalf of the Prosecution that the accused was treated fairly in his interview. There was no impropriety or contravention in the way he was interviewed.
48He argued that upon close reading of the interview, it is apparent that the accused demonstrated a fair understanding of his rights which were explained to him through an interpreter. I was directed to his answer about contacting friends where he says “if it doesn’t take a long time, I don’t need to talk to them but if it takes longer then I’m going to call them.” It was submitted that this demonstrates his understanding, ability to express himself and his ability to make independent decisions about whether or not to exercise his rights.
49Mr Crouch submitted that Mr Khan’s understanding of his right to silence is evident in the fact that he proceeded to selectively exercise that right in answer to some of the questions he was asked. He submitted that there is no evidence that suggests the accused did not understand his right to silence or that the interview was conducted improperly. Rather, it was suggested that the accused chose not to follow the ‘no comment’ advice and preferred to make denials of the allegations that were put to him.
50Mr Crouch relied on the case of DPP v Hollis in which the Court of Appeal observed:
The questioning of the applicant proceeded on more than one occasion in total disregard of his strongly expressed wish to terminate the interview. Questions which were unfairly formulated or irrelevant to the subject matter of the investigation were asked. In other words, there were a number of departures on the part of the interrogating police members from the proper standards to be adopted in such a process. These breaches clearly possessed the potential of overbearing the will of the applicant or of rendering the admission of statements made by him unfair or subject to exclusion as an expression of public policy.[2]
[2] [2019] VSCA 110
51Mr Crouch relied on the evidence of the Accused and DSC Shepherd to submit that the accused had been told before attending the Mernda police station that he would not be remanded in custody and would be free to go to work at 8:00 pm that night. This advice was repeated to him at the station before the interview started. He submitted that the Accused had been given an interpreter and that there was nothing to suggest he was particularly vulnerable or had an intellectual disability. He distinguished the circumstances of this case from those in Hollis and Robinson which involved questioning on more than one occasion, incorrectly formulated or unfair questions and wholesale departures from normal police procedure. He submitted that the relevant passage of the Victorian Police Manual provided a discretion to ask an interview subject to repeat back the caution, but the need to do so does not arise where an interpreter is present, as opposed to a situation where an interview subject demonstrates poor comprehension.
52Mr Crouch submitted that even if s 138 is enlivened, the probative value of the evidence is high. The interview contains an account from the accused which is contrary to the position disclosed in his Defence Response. That document asserts that he engaged in consensual sexual activity. In his interview, he vehemently denies that sex occurred and responds to SH’s account with incredulity. No Incriminating Conduct Notice has been filed, but the accused’s interview is replete with lies which will be relied on to impugn his credit. These are serious offences. It was submitted to me that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence even if it was obtained- which is not conceded- in an improper manner.
Unfairness discretion – s 90
53Mr Moodie relied on the following factors to argue that there was unfairness enlivening my discretion to exclude the record of interview pursuant to s 90 of the Act:
(a)Mr Khan had been given legal advice by a non-lawyer, namely Mitch Fraser;
(b)The advice Mr Fraser gave was very brief and wholly inadequate;
(c)Mr Khan and the relevant police officers operated on the assumption that Mr Fraser was a lawyer;
(d)Mr Fraser’s advice to Mr Khan further confused him about whether he would be taken into custody or not;
54It was submitted that the perfunctory advice given to Mr Khan, although commonly given on calls such as these, was inadequate when provided to a foreign national with minimal understanding of the Australian justice system. It was also relevant that Mr Fraser appears not to have spoken to his principal lawyer Ms Garde Wilson to confirm the adequacy of the advice he conveyed to Mr Khan.
55Mr Moodie relied upon the evidence of Mr Jane, who testified about the standards expected of solicitors at the firm Stary Norton Halphen when advising interview suspects out of hours by phone.
56It was submitted that appropriate advice would include explanations of the inability of the police to use Mr Khan’s silence adversely in a court of law, as well as an explanation of the benefits and detriments of either providing a no comment interview or providing answers to police questions.
57Mr Moodie further submitted that this inadequacy is apparent from how Mr Khan conducted himself in the interview, initially attempting to assert his right to silence before eventually crumbling and providing answers to police questions despite repeated comments which can be seen to constitute further attempts to exercise his legal rights.
58Mr Moodie submitted that the impact of the advice is influenced by the fact that Mr Khan was never made aware that Mr Fraser was not a lawyer, and on Mr Khan’s evidence he would not have followed the advice had he been aware of this fact.
59Beyond the inadequacy of the advice given to Mr Khan, Mr Moodie also points to the manner in which Mr Khan was questioned after he attempted to exercise his right to silence. It was submitted that the transcript of the interview reveals Mr Khan was essentially pushed or encouraged to comment on the allegations.
60He conceded that continuing to question a suspect during an interview notwithstanding their expressed intention to make no comment can be entirely appropriate but argued that the continuing questioning of someone with Mr Khan’s asserted vulnerabilities was improper and oppressive.
61I note that he interview runs for approximately 75 minutes and the questioning of Mr Khan is relaxed, civil and polite. Voices are never raised. His interlocutors never express frustration with him. He is not cross-examined. An opportunity is extended to him to contact a lawyer again to see if one was willing to attend the station and sit with him during the interview, but he decides not to call again, saying, “O.K, don’t worry about it right now then.”
62Mr Moodie argued that the caution given to Mr Khan was inadequate in accommodating his vulnerabilities. It failed to adhere to Victoria Police Manual on interviewing subjects. I pause to note that there are two possible constructions of 1.2 of the Victoria Police Manual. Read without recourse to 1.1. it appears to mandate that each time the caution and rights are administered, the interview subject should be asked to repeat what has been said in their own words. The alternative construction, contrasting the “should” employed in 1.2 with the “must” invoked in 1.1 is that if a need arises to ensure that a subject understands the caution and rights, the invitation should be extended to them to explain what has been said in their own words.
63Mr Moodie argued that Mr Khan’s situation was analogous to that of First Nations suspects inasmuch as he speaks English as a second language. It was argued that this warranted protections akin to those identified in Anunga.[3]
[3] R v Anunga (1976) 11 ALR 412, 413 (‘Anunga’).
64During oral argument Mr Moodie was pressed on the fact that at various points in the interview Mr Khan appeared willing to provide answers to the police questions and appeared open to commenting on the bulk of SH’s allegations. Mr Moodie responded that the interview is a jumble of no comment answers, responsive answers, denials and admissions all of which demonstrate that Mr Khan did not adequately understand his rights.
65He submitted that the answers he gave during the interview could not be said to have been offered calmly or rationally. He argued that the picture that emerges during the interview is of a man who is trying to assert rights he doesn’t fully understand.
66Mr Moodie took me to the case of Hou[4] which is authority for the proposition that the section 90 discretion can be invoked in cases where the police interview is conducted unimpeachably, but where the circumstances preceding the interview involve oppression, threats, illegality or impropriety by third parties which influences the decision made by an accused to participate in the subsequent police interview. The facts in Hou are markedly different from the facts here. It is not contended that the accused’s will was overborne, that he was subject to threats, importuning, intimidation or inducements of the sort deployed by the third parties in Hou.
[4] DPP v Hou [2020] VSCA 190, para [147]-[148]
67Mr Crouch submitted that the central issue is whether there exists a substantive unfairness that the defence can point to. In light of the submission that the Mr Khan’s vulnerabilities render the police interview unfair, the Prosecution sought to highlight several factors, namely:
(a)The accused is a well educated and intelligent man;
(b)He has been in Australia since 2019;
(c)He arrived at the interview by prearranged appointment;
(d)He was told on the phone and again at the police station that he would not be remanded in custody, lessening the amount of stress he would have been under;
68It was submitted that these factors ameliorate Mr Khan’s vulnerability to police pressure at the time of the interview. Whilst it was conceded that Mr Khan’s lack of prior interaction with police rendered him somewhat vulnerable it was submitted that he deflected questions he did not want to answer, chose not to comment in response to some and was prepared to deal with SH’s allegations by proffering an exculpatory counter-narrative.
69Mr Crouch sought to distinguish Mr Khan’s circumstances from those in cases of Hollis and Robinson, on the basis these two former cases were far more severe instances of an accused’s will being overborne by the police.
70He argued that Mr Khan did not unambiguously express a desire to provide a no comment interview, and highlighted that Mr Khan began the interview with substantive answers and later provided no comment, as well as expressly agreeing to continue the interview after saying ‘no comment.’
Conclusion
71I am unpersuaded that the questioning of the Accused was attended by an impropriety or illegality on the part of the police enlivening the discretion to exclude his police interview pursuant to s 138 of the Act.
72The failure to break down the caution and have the accused repeat to the officers what he understood its component parts meant is not an impropriety or an illegality. It may denote a departure from best practice, but in the absence of a demonstrable disability or vulnerability there is no impropriety where a suspect indicates, without more, that he understands the rights provided to him and thereafter demonstrates his understanding by invoking those rights.
73Although the accused spoke English as a second language, an interpreter was assigned and the caution and rights were administered in Pashto. As to his status as a non-citizen on a bridging visa, the interviewers did not exploit this vulnerability and he expressed no disquiet to them about it which affected the propriety of the interview. I accept that this is likely to have been his first police interview, but his understanding of his rights is evident in the way he selectively exercised his right to silence during questioning.
74I do not accept that the police should have ceased their questioning once the Accused at Answer 28 told them, “I don’t have- I don’t want to say any comment about this.” At Question 33 the Informant proposed putting SH’s allegations to the Accused and he was receptive. What follows is a lengthy passage where he takes issue with SH’s account despite the fact that the Informant is merely conveying information to him and not posing questions. At Answer 45 he says, “Just tell me. I’m going to listen to you.” In the context of the interview, he is inviting the Informant to continue informing him of SH’s version. He repeatedly takes issue with SH’s allegations and provides an exculpatory account. During this exchange, the Informant is not asking him questions. He next invokes his right to silence at Answer 61 in response to SH’s account of penile penetration, but at Answer 63 he denies that his penis slipped out of SH’s vagina. He invokes his right to silence at Answers 65 and 70, and again at Answer 75.
75Thereafter, he responds to the Informant’s questions save at Answer 82 where he says, “I don’t say- I don’t want to say anything about this. No comment. I don’t remember.” That appears at page 10 of the transcript of the interview. The interview concludes at page 25. The accused does not invoke his right to silence after Answer 82.
76His account is exculpatory albeit one the prosecution can demonstrate is false.
77If I am wrong in my assessment that there has been no impropriety or illegality enlivening section 138, I would nonetheless admit the evidence pursuant to section 138 because neither the failure to have the accused repeat the terms of the caution in his own words to his interlocutors or the further questioning of the accused after he had evinced an intention to answer questions with no comment amount to grave instances of impropriety. The desirability of admitting the evidence which has substantial probative value in the case against the accused, outweighs the undesirability of admitting the interview given the way in which the evidence was obtained.
78Turning to section 90 now, I do not accept the criticisms made of the advice given to the accused by the law clerk retained by Garde-Wilson. Whilst the accused would have received greater care and attention had he dialled Stary Norton Halphen, fate intervened and he phoned Garde-Wilson instead. The advice provided to the accused is standard status-quo preserving advice which lawyers routinely dispense to suspects in police custody who are about to be interviewed. The accused was incapable of adhering to it. That again is entirely routine. His curiosity was piqued when the Informant proposed to outline SH’s allegations. The accused enthusiastically responded to SH’s account and provided a transparently false exculpatory narrative in response to it. He was not being asked questions when he did that.
79I do not consider that the unfairness to the accused in speaking to a law clerk instead of a qualified lawyer is of such moment that the interview should be excluded. It may have been that an experienced solicitor or a conscientious junior would have taken the steps identified by Mr Jane in his evidence, but the critical feature of the advice given to the accused is in keeping with common practice by experienced criminal lawyers throughout the State. The advice appears to have been conveyed to the accused in a way he understood because he was capable of applying it, albeit selectively, in his interview. Allowing that there may have been some unfairness occasioned by the fact that Mr Khan spoke to a clerk believing that he was speaking to a solicitor, I am nonetheless unconvinced that the advice Mr Khan received was wrong or misleading or that it relevantly disadvantaged him in participating - or declining to participate - in his interview. The call lasted seven minutes inclusive of the briefing the Informant provided Mr Fraser. That is not an eternity, but calls of this nature are often brief. Having regard to the circumstances in which Mr Khan made admissions against interest in his police interview, I am not satisfied that it would be unfair to him to use the evidence of his answers.
80The police interview conducted 11 January 2022 is relevant and admissible.
81That said, those passages where he invoked his right to make no comment should be, at the Defence request, edited from the interview.
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