Director of Public Prosecutions v Natale (Ruling)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2015 0170

DIRECTOR OF PUBLIC PROSECUTIONS

ROCCO NATALE

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JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 November 2016, 26 April 2018
DATE OF RULING:	26 June 2018
CASE MAY BE CITED AS:	DPP v Natale (Ruling)
MEDIUM NEUTRAL CITATION:	[2018] VSC 339

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CRIMINAL LAW – charges of incitement to murder, extortion with threat to kill and threatening to kill – accused found unfit to plead – subsequent special hearing in relation to charges – application for exclusion of accused’s admissions in relation to earlier uncharged acts – accused an elderly Italian migrant for whom English was only a partial language – no interpreter present at interview – whether unfair to use evidence against accused in special hearing – whether circumstances in which evidence obtained would give rise to unfair forensic advantage if it were so used – whether evidence improperly or unlawfully obtained – whether interview conducted in violation of accused’s right to interpreter and obligation of police to obtain interpreter and defer interview until one present – whether conducting interview without an interpreter constituted failure by police to ensure accused had equal and effective protection of the law and was therefore discriminatory – exercise of discretion to exclude improperly or unlawfully obtained evidence where human rights of accused are breached – ‘admission’ – Evidence Act 2008 (Vic) ss 90, 138(1)–(3) and 139(1)–(3), Crimes Act 1958 (Vic) 464D(1), Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 8(3) and 38(1), International Covenant on Civil and Political Rights, arts 14(1) and (3) and 26.

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APPEARANCES:	Counsel	Solicitors
For the prosecution	Mr T Gyorffy QC	Office of Public Prosecutions Victoria
For the defence	Mr R Edney (29 November 2016), Mr D Cronin (26 April 2018)	Emma Turnbull Lawyers

HIS HONOUR:

In this criminal proceeding, the prosecution seeks to lead evidence of admissions made to police by an elderly Italian migrant for whom English is only a partial language. The admissions were made when police interrogated him without an interpreter being present. The defence objects to the admission of the evidence upon the main grounds that, having regard to the circumstances in which the admissions were made, it would be unfair to use the evidence against the accused (s 90 of the Evidence Act 2008 (Vic)) and that the evidence was improperly or unlawfully obtained (s 138(1) of that Act).

The allegations against the accused are very serious. He is charged on indictment with incitement to murder, extortion with threat to kill and threatening to kill. There is a strong public interest in bringing the perpetrators of such crimes to justice. The admissions are not admissions of guilt but are still relevant to the charges.

In an investigation under pt 2 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), the accused has now been found by a jury to be unfit to plead. The proceeding in this court in relation to these charges is therefore not an ordinary trial. The charges are to be determined by a jury in a special hearing under pt 3 of that Act. By s 15, the purpose of the hearing is to determine whether the accused is not guilty of the offences charged or committed the offences charged. However, the rules of evidence in the Evidence Act apply to this proceeding and the defence objection is to be determined according to those rules and established principles.

The defence objection calls for examination of those rules and principles in relation to the exercise of the discretion to exclude evidence of admissions obtained by police from suspects who speak limited English without an interpreter being present, as well as the human rights to equality before the law and a fair trial under the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the International Covenant on Civil and Political Rights.[1]
[1]International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).

Application for exclusion

The accused seeks an order excluding as evidence the contents of a record of interview that was conducted at Shepparton police station on 27 November 2013. The evidence is a written and audio-visual record of that interview. The basis of the application is that the accused did not fully understand his rights and that an Italian interpreter should have been present when the interview was conducted. It is submitted that the accused did not have knowledge of the English language that was sufficient for him to be able to understand the questioning. Therefore the failure of the police to arrange for the presence of an interpreter and to defer the questioning until one was present was a contravention of the accused’s right to an interpreter under s 464D(1) of the Crimes Act. It was submitted that the evidence should be excluded under ss 90, 137 and 138 of the Evidence Act or under the common law residual discretion.[2] It will not be necessary to consider s 137 and the residual discretion.
[2]See Haddara v The Queen (2014) 43 VR 53, 57–8 [12] (Redlich and Weinberg JJA) (‘Haddara’).

The circumstances of the alleged offending are that the accused was estranged from his wife, who is of Philippine origin. He is alleged to have given a friend the sum of $4,000 as payment for killing someone in the wife’s family in the Philippines (charge 1 of incitement to murder). When the friend refused to do so, the accused is alleged to have threatened to destroy the friend and kill him and his family (charges 2 and 3 of extortion and threatening to kill). The main evidence in the hearing is expected to be that of the wife and the friend and an audio recording of a conversation between the accused and the friend. These events are alleged to have taken place in July 2014, some seven months after the relevant interview took place in November 2013.

The questioning that took place in the interview occurred during an investigation into the offence of arson that the accused was alleged to have committed at the time. The accused was later charged, convicted and fined for that offence. It is not connected with the offences of incitement to murder, extortion and threatening to kill with which he is now charged. However, in the interview in November 2013, the accused is recorded as saying:

Q 123 You’ll — you’ll pay money for her ---
APay money to go — somebody go to the Philippine to do something to the family, cross my heart. No chance. When send me the paper, everything back my name, I forget everything.
Q124 Yeah.
AThat simple.

As can be seen, the accused is here recorded as stating in answer to a question that he will pay money to someone to go to the Philippines ‘to do something to the family’. He was speaking of his wife’s family. This is the admission that the prosecution wants to present in evidence, to which the defence objects.

Relevance of admission

The prosecution intends to lead this evidence not as evidence of propensity or anything of that kind but as evidence of motive. It contends that the evidence establishes that the relationship between the accused and his wife was one of animosity on his part, which is relevant to whether he had a motive to incite someone to murder her.

Applying the general principles explained in DPP v Paulino (Ruling No 1),[3] I reject the submissions made for the accused that this evidence is not relevant under s 55(1) of the Evidence Act. The statements of the accused are not so remote in time (the interview occurred in November 2013 and the alleged offences occurred in July 2014) and context (all of the relevant events, including the interview, took place in Shepparton) as to be irrelevant on that ground. Paying someone to kill the family of his wife does tend to show that the accused has an antagonistic and not a loving relationship with her, which goes to whether he had a motive to commit the offences charged.
[3][2017] VSC 343 (16 June 2017) [37] ff.

It should be noted that, if admitted, the record of interview will be heavily redacted in written form and edited in audio-visual form. It would otherwise contain a large volume of prejudicial and irrelevant material. Moreover, whether excluded from evidence or not, a small part of the interview (answers 184–8) that is favourable to the defence will be admitted by agreement.

Interview of accused without an interpreter

Italian, not English, is the first language of the accused. He was aged 73 years when he gave the interview. He migrated to Australia in 1967 and could not speak English on arrival. He has always worked with friends or people who spoke Italian.

The informant in relation to the present charges interviewed the accused on 31 July 2014. He terminated the interview because he formed the view that the accused required the assistance of an Italian interpreter. In the voir dire relating to the exclusion application, the accused gave evidence before me through the assistance of an interpreter, and had the assistance of an interpreter during the investigation into his fitness to plead. At various times in the proceeding, he has spoken halting English that was hard to understand. He can write some Italian but does not write in English. When the accused was under arrest and in the police cells at Shepparton on the present charges, the police were concerned about his medication. It was necessary for a police officer who could speak Italian to discuss that issue with the accused in that language.

The police officer who conducted the interview in November 2013 gave evidence on the voir dire that the accused said before the interview (without any third-party being present) that he could speak English and did not need an interpreter. He did not give evidence of testing the accused’s proficiency in English. He gave evidence that he ‘would have’ cautioned and read the accused his rights before the interview began. No note was made of this alleged conversation. The accused gave evidence that he asked for an interpreter but was not given one. As so often occurs in this situation, the court has no real basis for preferring the evidence of either of these witnesses. In the end, it is not necessary to decide what happened in these conversations and I can turn to what happened in the interview.

At an early stage during the interview, the following exchange occurred:

Q5 And before continuing I must inform you that you do not have to say anything but anything you say or do may be given in evidence. Do you understand that?

A                   Yeah.
Q6        I must also inform you of the following rights. You have the right to communicate with or attempt to communicate with a friend or relative and inform that person of your whereabouts. You have the right to communicate with or attempt to communicate with a legal practitioner. Now, if you are not a citizen or a permanent resident of Australia you have the right to communicate with or attempt to communicate with the consular office of the country of which you are a citizen. Do you understand the rights I’ve just given you?
A(NO AUDIBLE REPLY)
Q7        So you have the right to communicate with a friend or relative and tell them where you are. Now, we’ve spoken to a friend of yours. Is that right?
AYeah. Joe.
Q8        Mr Leah.
AYeah.
Q9        And he — he’s going to attend the police station and — later on and have a chat to you to make sure you’re OK.
AYeah.
Q10       You’re happy with that?
AYes.
Q11       We’ve tried to contact Cameron Lawyers. Is that correct?
AYeah.
Q12       But there is no reply on that phone. Is that correct?
AYeah.
Q13       And are you a permanent resident of Australia?
AI’m an Australian citizen.
Q14       You’re an Australian citizen. OK. Now, so do you understand the rights I’ve just given you then? Did — do you understand what — what I’ve just said?
ANot really.
Q15       What — what don’t you understand?
AUnderstand — it’s hard to understand when people talk.
Q16       Yeah. So your — your rights are you have a right to call a friend or relative.
AYes, I — I ---
Q17       And — and you’ve done that.
AYeah.
Q18       OK. And another right is you’re — you’re allowed to — to attempt to communicate with a solicitor.
AYeah.
Q19       And you’ve done that, Camerons Lawyers, we’ve called Camerons Lawyers. Is that correct?
AYeah. You call Cameron Lawyer.
Q20       Yeah. And no reply.
ANo reply lawyer.
Q21       Yeah, OK. And what I’m asking you now is that you’re an Australian citizen. Is that correct?
AYes.
Q22       OK. Now, do you wish to exercise any of the rights before the interview proceeds? Do you wish to try and call anyone else? Do you wish to call another friend or relative to let them know where you are?
ANo, just Joe.
Q23       OK. And he’s been contacted.
AYeah.
Q24       Do you wish to try and contact another solicitor?
ANo.

Where ‘[NO AUDIBLE REPLY]’ is written as the answer to question 6, the audio-visual recording shows the accused making a hand gesture to the effect that he does not understand. The interviewer goes on to give a rapid explanation of the right to communicate with a friend or relative. Much of the questioning here is leading. The interviewer gives no explanation of the right to stay silent. When asked whether he understood that he did not have to answer questions, the accused’s answer was a perfunctory ‘yeah’. He was not asked to explain what he meant in his own words.

At various points in the interview, the accused states that he does not understand the questioning. For example, the accused is asked at question 14 (see above) ‘do you understand the rights I’ve just given you?’ His answer is ‘[n]ot really’ and ‘it’s hard to understand when people talk’. His answers to later questions 184–8 are:

Q184 So you’re saying you’ve — you’ve got a friend to use as a contract killing ---
ANo, no, no. I got a friend in Melbourne to contact the government.

Q        185     OK.
A                   To expulse from Australia.
Q        186     Mm’hm. To expel her from Australia?
A                   I don’t know what you say in English. My language is ---
Q        187     Expulsion.
A                   Yes, expulse.
Q        188     Yes.
A                   Yes.

His answers to questions 219–24 are:
Q219 Look, you do not have to say anything unless you wish to do so but what you say or do can be used in evidence in court. Do you understand that?

A                   Yes, what are you telling me? I want to tell it to the court.
Q        220     Yeah, OK.
A                   And I tell it to the court too.
A        221     Yes.
A                   If no sign the paper, that’s my decision.
Q        222     All right. Do you wish to say anything in answer to the charge?
(NO AUDIBLE REPLY)

Q        223     No.
Q        224     ‘Cause you may — at this stage you may be charged with ---
A                   I … to understand very well English.

His answer to question 232 is:
Q232 All right. Do you wish to say anything in answer to the charges I’ve just read out to you?

A Please, to call Joe to explain it better.

At no stage did the interviewer terminate the interview and obtain an interpreter. As he said in evidence in the voir dire, the interviewer formed the view that the accused could speak adequate English. At various points, the interviewer did explain relevant matters to the accused in terms that, in the mind of the interviewer at least, were sufficient having regard to the accused’s apparent English speaking capability. As will be seen, the interviewer’s assessment is not determinative.

The prosecution submitted, indeed emphasised, that large parts of the record of interview, indeed most of it, consisted of the accused speaking in his own terms in English about relevant events. This is correct. The accused was not usually led or cross-examined and many of his answers are intelligible.

But many of the answers of the accused are garbled or were expressed in barely understandable terms. Many answers give rise to concerns about his understanding of the situation he was in and the answers he was giving. I will give three examples.

First, he freely made a threat to his wife’s family in the Philippines and admitted to setting fire to his own house. Secondly, he spoke of conducting a vendetta against his wife and her family, but said he would forget everything (‘finito’) if she signed the family home over to him (‘sign the paper’). Third, despite having being told at the start of the interview that the answers he gave may be given in evidence, he appeared not to understand later in the interview that the answers could be used as evidence against him in court. He then appeared to stress that he wanted to tell the judge what he intended to do to his wife if she did not sign the paper.

While gushing records of interview of accused persons are not unknown, these are unusual things for a person being interviewed in relation to arson to say. Many of the answers of the accused were expressed in grandiose language. In my view, the accused presented as an elderly person who had a very limited command of the English language and who did not fully understand what was happening to him. There is a real question about what he meant by the words used in many instances. There is a real question about whether his participation in the interview was voluntary. It is true that the accused was cautioned under s 464A(3) of the Crimes Act and informed of his rights to communicate with a friend or relative and legal practitioner under s 464C(1). But this was done in English without the assistance of an interpreter. Having read the record of interview and looked at the audio-visual recording a number of times, I find that the accused did not really understand that his answers may be given in evidence against him and, under s 464D(1), he did not have knowledge of the English language that was sufficient to enable him to understand the questioning.

The defence submits that, due to his poor English, Mr Natale did not sufficiently understand the questions and could not sufficiently communicate his answers when interviewed. I accept that submission. Therefore his evidence is unreliable and, in the exercise of the discretion in s 90, should be excluded. That is a different question. It was not contended that the evidence should be excluded under s 85(2) (see below). It was contended that the unreliability of the evidence formed part of the reason why it would be unfair to admit the evidence at trial. Under s 138(1), the defence also relies upon the failure of the police to ensure that an interpreter was obtained and that the interview was delayed until that happened, as required by s 464D(1) of the Crimes Act. To the determination of these objections I now turn, beginning with s 90.

Excluding admissions under s 90 of the Evidence Act

Section 90 of the Evidence Act provides as follows:

Discretion to exclude admissions
In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if—
(a) the evidence is adduced by the prosecution; and

(b)having regard to the circumstances in which the admission was made, it would be unfair to an accused to use the evidence.

The onus of establishing this ground of exclusion rests upon the applicant.[4]

[4]Em v The Queen (2007) 232 CLR 67, 91 [63] (Gleeson CJ and Heydon J) (‘Em’).

Purpose of discretion in s 90

As explained by Toohey, Gaudron and Gummow JJ in R v Swaffield, the purpose of the unfairness discretion is ‘the protection of the rights and privileges of the accused’.[5] The most fundamental of these rights is the right to a fair trial at common law[6] to which, said Lord Devlin in Connelly v DPP, ‘nearly the whole of … criminal law of procedure and evidence has been directed’.[7] The focus of s 90 — whether, having regard to the circumstances in which the admission was made, it would be unfair to an accused to use the evidence at the trial of the charges — may be understood in that context.

[5](1998) 192 CLR 159, 197 [78] (‘Swaffield’).

[6]According to Mason CJ and McHugh J in Dietrich v The Queen (1992) 177 CLR 292, 299, the ‘right of an accused to receive a fair trial according to law is a fundamental element of our criminal justice system’ (see also 325 (Brennan J), 353, 361 (Toohey J), 362 (Gaudron J)); see also ss 24–5 of the Charter of Human Rights and Responsibilities Act and art 14 of the ICCPR.

[7][1964] AC 1254, 1347.

The focus of s 90 of the Evidence Act is different to the focus of s 85(2)[8] — whether, having regard to those circumstances, it is ‘unlikely that that the truth of the admission was adversely affected’. The focus of s 85(2) is upon the evidentiary reliability of the admission, not the procedural unfairness of its use in the trial. The focus of s 90 is also a different focus to the focus of s 138(1) — whether, having regard to those circumstances, the desirability outweighs the undesirability of admitting improperly or unlawfully obtained evidence. The focus of s 138(1) is upon the balancing of certain countervailing public policy considerations (see s 138(3)) arising out of the fact that the evidence was so obtained, which may include but extends beyond the unfairness of the use of the evidence at trial.
[8]Sections 85(2) and (3) provide:
(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.
(3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account—
(a)any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject; and
(b)if the admission was made in response to questioning—
(i)the nature of the questions and the manner in which they were put; and
(ii)the nature of any threat, promise or other inducement made to the person questioned.

Unfairness, impropriety and unlawfulness

In Em v The Queen, Gummow and Hayne JJ held that impropriety and unlawfulness must be considered under s 138 and are not relevant to the exercise of the unfairness discretion in s 90.[9] This conclusion was followed by the New South Wales Court of Criminal Appeal in R v Cooney[10] and R v Ryan.[11] In Cooney, Leeming JA (Latham and Johnson JJ agreeing) held succinctly that, where impropriety and unlawfulness are the basis of the objection, ‘it is not possible to rely exclusively upon s 90, thereby sidestepping s 138.’[12]
[9](2007) 232 CLR 67, 106 [119].
[10][2013] NSWCCA 312 (2 December 2013) (Leeming JA, Latham and Johnson JJ).
[11][2013] NSWCCA 316 (13 December 2013) (Latham, Schmidt and Beech-Jones JJ).
[12][2013] NSWCCA 312 (2 December 2013) [8].

In this court, Weinberg JA so held in R v Meade (No 1),[13] as did T Forrest J in R v Kerr and Lewis.[14] The interlocutory appeal against the decision of T Forrest J was dismissed in Hinton (A Pseudonym) v The Queen where Redlich, Weinberg and Kaye JJA held that such an appeal was not an appropriate vehicle for determining whether the decisions of the New South Wales Court of Criminal Appeal were plainly wrong and ought not to be followed.[15]
[13](2013) 233 A Crim R 40, 65–6 [114]–[118].
[14][2015] VSC 64 (27 February 2015) [134]–[140].
[15][2015] VSCA 40 (6 March 2015) [6].

As a single judge and until the matter is further considered by our Court of Appeal or the High Court, I would therefore approach the application of s 90 upon the basis that questions of impropriety and unlawfulness fall to be considered under s 138 and not s 90. What is important for s 90 is whether the admissions were obtained in circumstances that would produce unfairness if the evidence were admitted at trial (for example, unfair forensic disadvantage: see below), not whether police conduct was improper or unlawful.

Evidence of an admission

Section 90 confers discretion on the court to refuse to admit ‘evidence of an admission’. The evidence of the accused in the present case is not an admission in the sense that it relates to the commission of the offences. It is not a confession of guilt. It is evidence of the extremely negative relationship between the accused and his wife some months before the offences were allegedly committed. It is evidence that he had a motive to commit the offences. The first question that arises is whether this evidence is ‘evidence of an admission’ within s 90.

The dictionary in the Evidence Act defines an ‘admission’ to mean

a previous representation that is—

(a) made by a person who is or becomes a party to a proceeding (including an accused in a criminal proceeding); and

(b) adverse to the person’s interest in the outcome of the proceeding; …

The dictionary defines a ‘previous representation’ to mean

a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced; …

The dictionary defines ‘representation’ to include ‘(a) an express or implied representation (whether oral or in writing) …’ Therefore the ordinary meaning of the word ‘representation’ is applicable. After examining these provisions and referring to relevant authorities on that ordinary meaning,[16] in Haddara v The Queen, Priest JA (Redlich and Weinberg JJA agreeing) held that the word

representation evokes notions of an assertion, a statement, an allegation, a depiction or a portrayal of some fact, matter or state of affairs (or the like) …[17]

[16]Re A (a Child) (2000) 115 A Crim R 1, 9 [28] (Bryson J); DPP (NSW) v Leonard (2001) 53 NSWLR 227, 247 [93] (James J).

[17](2014) 43 VR 53, 91 [128] (italics in original).

To be admissible, evidence must be relevant (s 56(2)), which means that, if accepted, it must be capable of rationally affecting the assessment of the probability of the existence of a fact in issue in the proceeding (s 55(1)).[18] Applied to the meaning of ‘admission’ under s 90, a leading text explains that:

any acknowledgement of some relevant fact that tended to establish guilt, or liability, would be an admission. Indeed, any representation, adduced by the prosecution and capable of rationally affecting the assessment of the probability of the existence of facts asserted by a prosecution witness in relation to an alleged offence would constitute an admission.[19]

[18]See generally IMM v The Queen (2016) 257 CLR 300, 312 [38] (French CJ, Kiefel, Bell and Keane JJ).

[19]Stephen Odgers, Uniform Evidence Law in Victoria (Lawbook Co, 2^nd ed, 2013) 400 [1.3.4740].

It follows that the term ‘admission’ in s 90 is not confined to an admission made by the accused about committing the offence, that is, it is not confined to a confession of guilt. Section 90 covers evidence of an admission by the accused that is relevant not as an admission about committing the offence but as an admission about some other matter that is relevant (and that is adverse to the accused’s interest in the outcome of the proceeding). Wood CJ (Barr and Greg James JJ agreeing) so held in R v JGW[20] and I respectfully agree. Evidence of motive, such as the admissions of the accused about his extremely negative relationship with his wife, comes into this category. Section 90 therefore applies to the admission in question.
[20][1999] NSWCCA 116 (23 June 1999) [40]–[44].

I turn now to the relevance of the unreliability of evidence under s 90.

Relevance of unreliability of evidence under s 90

In relation to the alleged unreliability of the evidence obtained from an accused, Gummow and Hayne JJ held in Em that, despite the position at common law, ‘consideration of the reliability of what was said in a statement made to police can have no part to play in the operation of s 90’.[21] Their Honours considered that s 85(2) (see above), not s 90, was the basis upon which an admission to an investigating official[22] could be excluded upon grounds of unreliability.
[21](2007) 232 CLR 67, 104–5 [112].
[22]See Evidence Act s 85(1).

To the contrary, Gleeson CJ and Heydon J held in Em that, under s 90, the reliability of evidence was a factor affecting the unfairness of its use. As regards the application of that provision, their Honours referred[23] with approval to the judgment of Toohey, Gaudron and Gummow JJ in Swaffield that (at common law) ‘[u]nreliablity is an important aspect of the unfairness discretion but it is not exclusive’.[24] Kirby J, referring to the same joint judgment with approval, said that, ‘whilst the unreliability of an admission might be “a touchstone of unfairness” under s 90, it is “not to be the sole touchstone”’.[25] This is the position in Victoria, as explained in Haddara, where Redlich and Weinberg JA held:

The ‘fairness’ discretion under s 90(b) incorporates, but also extends beyond, ensuring that an accused receives a fair trial. Moreover, one aspect of that ‘fairness’ discretion involves, as it always did at common law, the question of reliability.[26]

Of s 90 it is therefore correct to state, as T Forrest J recently did in R v Kerr (Ruling No 1),[27] that the ‘unreliability of the admission is an important consideration but it is not conclusive,[28] or a necessary prerequisite of exclusion’[29]. In the application of s 90, assessing the unreliability of an admission as a factor affecting the unfairness of its use at trial by reference to the circumstances in which it was made is different to assessing (although it may encompass considering) whether those circumstances were such as to make it unlikely that its truth was adversely affected.

[23](2007) 232 CLR 67, 93 [73].

[24](1998) 192 CLR 159, 197 [78].

[25]Em (2007) 232 CLR 67, 125–6 [191], citing Swaffield (1998) 192 CLR 159, 189 [54] (Toohey, Gaudron and Gummow JJ).

[26](2014) 43 VR 53, 56 [5].

[27][2015] VSC 64 (27 February 2015) [26].

[28]Swaffield (1998) 192 CLR 159, 197 [77] (Toohey, Gaudron and Gummow JJ): ‘As the authorities stand, the likelihood of an unreliable confession does not mandate the exercise of the unfairness discretion to exclude that evidence.’

[29]Em (2007) 232 CLR 67, 93 [73] (Gleeson CJ and Heydon J); Swaffıeld (1998) 192 CLR 159, 197 [78] (Toohey, Gaudron and Gummow JJ).

General scope of s 90: unfairness of end, not means

According to Redlich and Weinberg JJA in Haddara,[30] the origin of s 90 was the unfairness discretion at common law, which was discussed by the Full Court of the High Court in R v Lee.[31] In that case, Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ explained its scope in the following terms:[32]

[It is] a mistake to approach the matter by asking as separate questions, first, whether the police officer concerned has acted improperly, and if he has, then whether it would be unfair to reject the accused’s statement. It is better to ask whether, having regard to the conduct of the police and all the circumstances of the case, it would be unfair to use his own statement against the accused. We know of no better exposition of the whole matter than that which is to be found in the two passages from the judgment of Street J (as he then was) in R v Jeffries[33] … His Honour said:[34] ‘It is a question of degree in each case, and it is for the presiding Judge to determine, in the light of all the circumstances, whether the statements or admissions of the accused have been extracted from him under conditions which render it unjust to allow his own words to be given in evidence against him.’

[30](2014) 43 VR 53, 58–9 [14(ii)].

[31](1950) 82 CLR 133 (‘Lee’).

[32]Ibid 154.

[33] (1947) 47 SR (NSW) 284, 311–14 (‘Jeffries’).

[34]Ibid 312.

The focus of the exercise of the unfairness discretion is thus upon the unfairness of the use of the admission in the trial, not the unfairness of the means by which it was obtained. At issue is the unfairness of the end, not the means. In Swaffield, Toohey, Gaudron and Gummow JJ said that, among things that were not clear, this was ‘one thing [that was] clear’.[35] In Victoria, the position has been authoritatively summarised by Redlich and Weinberg JJA in Haddara:[36]

The discretion, known as the Lee discretion, is exercised where the reception of the evidence would be unfair to the accused.[37] The issue is not whether the accused was treated unfairly.[38] It will be unfair to the accused where the use of the admission or confession would result in an unfair trial.[39] Section 90 is generally similar to the common law discretion considered in Lee.

[35](1998) 192 CLR 159, 189 [53].

[36](2014) 43 VR 53, 58 [14(ii)].

[37]Lee(1950) 82 CLR 133.

[38]Cleland v R(1982) 151 CLR 1, 18, 33.

[39]Ibid 31, 34.

The purpose of the discretion in s 90 is the protection of the rights and privileges of the accused and the most fundamental of those rights is the right to a fair trial. Among other circumstances, the discretion is available where, contrary to this fundamental right, the use and admission of evidence would subject the accused to unfair forensic disadvantage in the conduct of the defence. This can be an especially important consideration in relation to admissions obtained from persons having poor English who are interrogated without an interpreter being present, as occurred in the present case.

Unfair forensic disadvantage

Where evidence of admissions is elicited during an unsatisfactory police interrogation, admitting the evidence at trial may produce unfair forensic disadvantage in the conduct of the defence, as illustrated by R v Amad[40] and Foster v The Queen,[41] which have been referred to with approval in the High Court.[42]
[40][1962] VR 545 (‘Amad’).
[41](1993) 67 ALJR 550 (‘Foster’).
[42]See Swaffield (1998) 192 CLR 159, 198 [78] (Toohey, Gaudron and Gummow JJ) (Amad) (their Honours also referred with approval to the judgment of Williams J in McDermott v The King (1948) 76 CLR 501, 517 where his Honour held that it would be unfair to admit evidence of admissions made by an accused to police that he had made admissions to third parties without calling those parties); Em (2007) 232 CLR 67, 104 [111] (Gummow and Hayne JJ) (Amad and Foster).

In Foster, the semi-literate accused had been unlawfully arrested and detained. He was denied access to a lawyer, given no choice as to whether to participate in a police interview or any say as to where it would take place. The interview was not video or audio recorded and there were no non-police witnesses. Mason CJ, Deane, Dawson, Toohey and Gaudron JJ found that there was a ‘real question … about whether any admissions by the [accused] were voluntary in the sense of meaning “in the exercise of a free choice to speak or be silent”’.[43] In these circumstances, they held that the proper exercise of the unfairness discretion required the exclusion of the evidence. Among the substantial and sufficient[44] grounds given for that conclusion was that the accused:

was deprived of the presence of any non-police witness and placed in ‘the special position of vulnerability ... to fabrication’ of a confessional statement to which reference was made in the judgment of the majority of the Court in McKinney v The Queen:[45] ‘his detention ... deprived him of the possibility of any corroboration of a denial of the making of all or part of [the] alleged confessional statement’. In a context where video or audio facilities were either not available or not utilised, his detention also effectively precluded any non-police corroboration of his account of the nature and content of the police questioning which led to his eventual signing of the statement.[46]

The main relevance of this passage is the reference to the ‘special position of vulnerability’ of the accused, for that was the position of the accused in this case.

[43](1993) 67 ALJR 550, 556 quoting Lee (1950) 82 CLR 133, 149 (Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ).

[44](1993) 67 ALJR 550, 555.

[45](1991) 171 CLR 468, 478.

[46](1993) 67 ALJR 550, 554–5.

In Amad, the police cross-examined the young accused (he was aged 19 years) during the interview without cautioning him and in ‘a gravely improper manner’.[47] Two apparently inconsistent accounts of his involvement in an affray were elicited in a signed record of interview. Smith J excluded the admissions in the exercise of the unfairness discretion because the inconsistency could have been used at trial to impair the credit of the accused when giving evidence:

The two accounts that were obtained from Amad do not match in all respects. If they are put in evidence and Amad now gives evidence, as I am told he intends to do, it will be difficult for him to avoid conflict between his evidence and one or both of the previous accounts. I have felt great difficulty about this aspect of the case, but after consideration I have reached the conclusion that it would be unfair that as a result of the grave improprieties to which I have referred Amad should be subjected to this dangerous disadvantage.[48]

In the present case, the accused will also be placed in an invidious position at trial if the admissions were to be admitted. He would be faced with electing to give evidence and enduring a potentially credit-destroying cross-examination.

[47](1962) VR 545, 547 (Smith J).

[48]Ibid 549.

As part of determining whether it would be unfair in the trial of an accused for admissions to be admitted into evidence, the personal condition and characteristics of the accused are taken into account.

Personal condition and characteristics of accused when interviewed

In relation to voluntariness, the focus is upon the whether admissions were made in the exercise of the individual suspect’s free choice:[49]

The word voluntary does not mean volunteered. It means made in the exercise of the free choice to speak or be silent.[50] Voluntariness focuses upon the will of the accused and must be applied according to the age, background, and psychological condition of the accused and the circumstances in which the confession was made. Voluntariness is not an issue to be determined by reference to a hypothetical standard. It requires a careful assessment of the effects of the actual circumstances upon the will of the particular accused.[51]

It is the same with the unfairness discretion. In determining whether it would be unfair to admit admission evidence at trial, the personal condition and characteristics of the individual accused, such as whether the accused was poorly educated or, in the interview, was exhausted, did not properly understand questions or could not properly communicate answers, are important considerations.

[49]Western Australia v Gibson (2014) 243 A Crim R 68, 101 [161] (Hall J).

[50]Lee (1950) 82 CLR 133, 149 (Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ).

[51]Collins v The Queen (1980) 31 ALR 257, 307 (Brennan J).

In Foster, the personal condition or characteristic was the semi-literacy of the accused, which contributed to his position of special vulnerability in the police interview.[52] When discussing the scope of the discretion in Lee (see above), Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ referred to the judgment of Street J in Jeffries. In that judgment, his Honour stated that, even though an admission might have been obtained voluntarily, it could be excluded where (for example) ‘exhaustion or lack of comprehension [would] render it unjust’ to allow the evidence to be used against the accused at the trial.[53] In McDermott v The King, Latham CJ cited Jeffries with approval as authority for the proposition that the discretion could be used to exclude an admission where the accused had failed ‘to understand and appreciate the effects of questions and answers’.[54] As the Chief Justice pointed out, special leave to appeal to the High Court was refused in Jeffries.[55]
[52]Foster ((1993) 67 ALJR 550, 554–5 (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ).
[53](1946) 47 SR (NSW) 284, 312.
[54](1948) 76 CLR 501, 507.
[55]Ibid.

The position was made authoritatively clear in Victoria in Haddara where Redlich and Weinberg JJA, discussing s 90, referred to matters that were relevant to the exercise of the unfairness discretion at common law. These included

the accused’s own peculiar frailties (including his or her mental and emotional state, and condition of sobriety), factors that might make the admission unreliable (and therefore unfair to be used against the accused) …[56]

The ‘peculiar frailties’ of accused include that they may have some but poor English.

[56](2014) 43 VR 53, 58 [14(ii)].

Interrogations of suspects with some but poor English

Under s 90, assessing whether it would be unfair to allow use of an admission takes into account the personal condition and characteristics of the accused, such as whether the accused was poorly educated or, in the interview, was exhausted, did not properly understand questions or could not properly communicate answers. So too does it take into account whether the accused was proficient enough in the English language to be able sufficiently to appreciate and exercise their human rights, especially the right to remain silent, and understand questions and communicate answers.

For example, in R v Contenanza,[57] police obtained admissions in an interview with a suspect who spoke poor English. While the admissions were made voluntarily, Burbury CJ held that they should have been excluded at trial in the exercise of the court’s discretion because the accused did not understand the caution.[58] The Chief Justice accepted that the accused ‘understands quite a lot’,[59] but that did not mean he understood the caution and his right to remain silent. Among the reasons given for holding that the admissions should have been excluded on discretionary grounds was the necessary assumption in favour of the accused that, if he had understood the caution, ‘he would have remained silent’,[60] which is a matter going to the conduct of the defence. His Honour went on the say what should happen in such cases, which includes the present case:
[57][1958] Tas SR 3.
[58]Ibid 5.
[59]Ibid 4.
[60]Ibid 5.

I would further say that because police officers think that a man understands English, they should not think that there is no need to bring in an interpreter. There should, in these cases, be an interpreter present, in order to satisfy the police themselves and to make sure that that accused understands what is being put to him.[61]
[61]Ibid.

Similar guidance was offered in Binh Viet Nguyen[62] in a case in which the admissions were made in an interview in which an interpreter was present. On the evidence, Coldrey J found that the interview was involuntary because, for cultural reasons, the accused did not understand his right to remain silent. In ruling that evidence of the admissions would be excluded, his Honour said:

[I]t is essential that, where suspects to suffer the disability of linguistic and cultural unfamiliarity with the Australian legal system, interviewing police are vigilant to ensure that such persons fully understand their legal rights.

This may well require a flexible formulation of such rights by interviewing police and a sufficient inquiry by them of the suspect to demonstrate an understanding of those rights.[63]

[62](1995) 78 A Crim R 582.

[63]Ibid 585.

R v Li[64] was another case decided by Coldrey J in which the accused had limited English. This time no interpreter was arranged for the interview. His Honour held that the accused did not understand his right to obtain legal advice or speak with a friend or relative; nor did he understand the caution.[65] Because the police had attempted in good faith to ensure his rights in these respects, he considered that it was more appropriate to approach the matter ‘upon the application of the unfairness discretion’ (at common law) than as a breach of those rights.[66] Among the reasons for exercising the unfairness discretion to exclude the admissions was that, if the accused had ‘understood his ability to avail himself of those rights, the course of the interview may have been very different’.[67] Li was approved by the Court of Appeal of the Supreme Court of Queensland in R v Cho.[68] On the basis of the judgment of Coldrey J, Mackenzie J (de Jersey CJ and Williams JA agreeing) considered it to be ‘recognised that it is within the court’s general discretion to exclude inculpatory statements by a person who is so lacking fluency in English that it is unfair to rely on them’.[69]
[64][1993] 2 VR 80.
[65]Ibid 86–7.
[66]Ibid 87.
[67]Ibid 88.
[68][2001] QCA 196 (25 May 2001).
[69]Ibid [7].

In determining to exclude evidence of the admissions, Coldrey J stated in Li a test of substantive voluntariness, that is, the suspect must actually and not just apparently understand that questions need not be answered:

The breadth of the concept of voluntariness is often misunderstood. In my view it extends to and encompasses the situation where answers are given by an accused person who lacks understanding that such questions need not be answered, and, as a result, feels compelled to participate in the interview process. In such circumstances the interview will be non-voluntary.
This is so even though the interview itself may be conducted in an ostensibly co-operative fashion.[70]
[70][1993] 2 VR 80, 87.

Applying this approach, his Honour held that the accused did not understand his right to obtain legal advice or speak with a friend or relative (s 464C(1) of the Crimes Act) or the caution (s 464A(3)):

Having regard to the background of the accused (including his age, his level of English, and his lack of any prior contact with the police) and further, having regard to the circumstances preceding the interview on 23 September 1991 and the sequence of questions and answers in the interview itself, and finally having regard to the evidence of the accused about these questions and answers, I have concluded that the probabilities are that the accused did not understand the caution and associated rights detailed to him by the investigating police.
I am further of the view that the accused believed he had to answer the police questions.[71]

Much of this reasoning applies with equal force to the accused in the present case. Here too the interview proceeded in an ostensibly co-operative manner but the accused did not actually understand the caution or his associated rights.

[71]Ibid 86–7.

The same issue arose in R v Trinh[72] where the accused could speak and understand English but his ‘level of ability was unsophisticated’ and required that questions be asked ‘in a very simple fashion’.[73] No interpreter was present for the police interview. Philippides J held that ‘it [was] … apparent that his level of understanding was quite limited and that he struggled frequently during the interviews to comprehend the questions he was asked.’[74] His Honour excluded the admissions made by the accused to police because the interview was not voluntary and alternatively upon the basis of the unfairness discretion.[75] In so holding, he referred to the judgement of Burbury CJ in Contenanza[76] (see above) and to the landmark judgment of Foster J (Muirhead and Ward JJ agreeing) in R v Anunga.[77] In that case, Forster J stated certain guidelines for police to follow when interviewing Aboriginal suspects and others in the same category. The first of these is that an interpreter must be present unless the suspect is as fluent in English as the average English-speaking person.[78] In Trinh, Philippides J said[79] of Anunga, and I respectfully agree:

In R v Anunga,[80] Forster J, with whom Muirhead and Ward JJ agreed, put together general guidelines for the conduct of police officers when interrogating aboriginal persons due to the fact that, ‘…Aboriginal people often do not understand English very well, and that, even if they do understand the words, they may not understand the concepts with English phrases and sentences express. Even with the use of interpreters this problem is by no means solved.’[81] It was recognised by the court that, ‘…much of what is said applies equally to the interrogation of migrants whether European or Asiatic.’[82]

As the accused in this case is a European migrant, the last sentence is important.

[72][2002] QSC 471 (19 July 2002) (‘Trinh’).

[73]Ibid [17] (Philippides J).

[74]Ibid [21].

[75]Ibid [24]–[25].

[76][1958] Tas SR 3.

[77](1976) 11 ALR 412 (‘Anunga’).

[78]Ibid 414.

[79][2002] QSC 471 (19 July 2002) [11].

[80](1976) 11 ALR 412.

[81]Ibid 413.

[82]Ibid.

The Anunga guidelines were taken into account in the exclusion application that was determined in Western Australia v Gibson.[83] In that case, police interviewed an Aboriginal for whom English was only a partial language. As in the present case, contrary to the legal requirements,[84] the suspect was interviewed without an interpreter being present. Hall J discussed what level of English was required before police could interview a person without an interpreter:
[83](2014) 243 A Crim R 68 (Supreme Court of Western Australia).
[84]Section 137(3)(d) of the Criminal Investigation Act 2006 (WA) provided that an arrested person is entitled to be assisted by an interpreter if ‘unable to understand or communicate in spoken English sufficiently’, and s 138(2)(d) provided that, where an arrested suspect was unable to understand or communicate in spoken English sufficiently, the suspect is not to be interviewed until the services of an interpreter are available.

Where a person has some understanding of English the extent of that understanding needs to be considered. The understanding may not be sufficient for the person to appreciate their rights. An interpreter may also be required to ensure that any interview is fair and that any answers are reliable and not the subject of misunderstanding. What the police need to consider is not whether the persons can make themselves understood in English in casual conversation, but whether they have the capacity to understand their rights and the types of questions that will be put to them in the police interview. They also need to consider whether the person has the ability to express themselves in English such that they are able to fairly and accurately give their own account if they wish to do so.[85]
[85](2014) 243 A Crim R 68, 84 [77].

Hall J found that the suspect did not meet this standard. Holding that the admissions made by the suspect would be excluded on grounds that included unfairness, his Honour held:

1 the accused did not have the benefit of an independent interpreter;

2 his ability to comprehend and communicate in English was severely limited. This raises doubts as to the reliability of any answers given by the accused;

3 the efforts by the police to determine whether the accused had an adequate understanding of English and needed an interpreter were inadequate; …[86]

The accused in the present case does not meet the standard set by Hall J and the reasons given for excluding the admissions are equally applicable.

[86]Ibid 107 [180].

R v D Bastos De Frietas[87] is similar. Here police interviewed a Brazilian suspect who spoke fluent Portuguese but only limited English. After watching the audio-visual recording of the interview, Wall DCJ found that the accused was ‘superficially … numerate and generally appeared to understand many of the questions’.[88] But this was not ‘the same as understanding and appreciating or comprehending issues, concepts, meanings and nuances associated with questions’.[89] Applying the judgment of Mackenzie J (de Jersey CJ and Williams JA agreeing) in Cho[90] (see above), his Honour excluded the admissions because

the defendant was not able, in the absence of an interpreter, to fairly acquit himself and properly or adequately respond to the questions asked of him and the allegations made against him.[91]

The present case is comparable because, as the prosecution submitted, the accused spoke intelligibly in the interview in many places but, as the defence submitted, in a confusing way in others.

[87][2012] QDC 354 (11 September 2012). The case involved the application of s 433(1) of the Police Powers and Responsibilities Act 2000 (Qld) which required police to bring in an interpreter where the suspect could not ‘speak with reasonably fluency in English’.

[88]Ibid 10.

[89]Ibid.

[90][2001] QCA 196 (25 May 2001).

[91][2012] QDC 354 (11 September 2012) 20.

The final judgment to which I refer is that of Kaye J in R v Mohammed (Ruling).[92] On the evidence, his Honour found that the accused had participated voluntarily in the police interview and had understood his right to remain silent.[93] But the proficiency of the accused in the English language was so poor that he could not effectively communicate his version of events:

it is clear from a viewing of the video-taped interview that the accused man had a limited understanding and an even more limited command of the English language. It became clear during the interview that on a number of occasions he did not understand the thrust of questions that were put to him and they had to be repeated or clarified.
More significant in my view is the fact that on important occasions it seems clear that the accused man lacked the basic capacity to state his version of the events which occurred in comprehensible English. His ability to express himself, even in relation to relatively simple matters, was most limited. This constituted a significant handicap for the accused man, particularly at critical stages of the record of interview.[94]

His Honour excluded the admissions because ‘the accused has established that it would be unfair to him if I were to admit the record of interview into evidence’.[95] He held that the accused would ‘be placed in an unfair and unjust forensic disadvantage if the evidence were to be admitted’.[96] For reasons that I explain below, that is so with the accused in the present case.

[92][2004] VSC 408 (24 August 2004).

[93]Ibid [34].

[94]Ibid [59]–[60].

[95]Ibid [70].

[96]Ibid [72].

In summary, the discretion in s 90 of the Evidence Act is available to exclude evidence of an admission obtained by police when interviewing a person who speaks poor English without an interpreter being present. The focus of the assessment is upon whether it would be unfair to allow the evidence to be admitted at trial having regard to the circumstances in which it was obtained, not upon whether the means used where improper or unlawful. It is relevant but not conclusive to take into account that, by reason of those circumstances, including that the interview was not substantively voluntary, the evidence is unreliable. The personal condition and characteristics of the accused, including a lack of proficiency with the English language, must be considered. Age can exacerbate that lack of proficiency. The discretion may be exercised where admitting the evidence would produce unfair forensic disadvantage in the conduct of the defence, as where the accused did not appreciate the right to remain silent and other relevant human rights, did not comprehend the questions, did not properly communicate the answers and, to rebut and explain the admission, would be faced with electing to give evidence and enduring a potentially credit-destroying cross-examination.

Should the evidence in the present case be excluded?

Applying these principles to the present case, the evidence establishes that the accused, who is elderly, had a very limited command of the English language but was interviewed by police without an interpreter being present. By reason of his poor English language skills, he did not fully appreciate his human rights (especially the right to remain silent) or understand the questions that were asked of him, or properly communicate his answers. He did not fully understand the nature of the judicial process in criminal cases, especially that his answers could be used in evidence against him in that process, and what his answers might mean in terms of his own criminal liability for the offences that he was being interviewed about and other offending that he appeared to admit.

There is a real question about what the accused actually meant by various answers that he gave which were highly incriminating in relation to the alleged offending and other uncharged offending. His answers were often garbled and grandiose. The interviewer and the accused were sometimes at cross-purposes. As the accused did not fully appreciate his human rights and the nature of the legal process in which he was engaged (see above), the interview was not actually voluntary even if it appeared to be so. In the result, there are real questions about the reliability of the accused’s admissions.

Admitting the evidence would place the accused in a position of unfair forensic disadvantage because the meaning of the admissions could only be understood if the accused were to give evidence about the interview and explain the answers he gave. There is a particular difficulty with this course in the present proceeding because the accused has been found unfit to be tried and the court is conducting a special hearing under pt 3 of the Crimes (Mental Impairment and Unfitness to be Tried) Act. An accused does not participate in such a hearing in the usual way. There is a general difficulty with this course in any event, for an accused in his position in an ordinary hearing could not rebut or explain the admissions without electing to give evidence and enduring a cross-examination. Having regard to the nature of the admissions, this is really untenable, for it would probably, indeed highly probably, destroy the accused’s credit in front of the jury. Having regard to the circumstances in which the admissions were made, it would be unfair to place the accused in that position. I would therefore exclude evidence of the admissions under s 90.

As the defence placed reliance upon both s 90 and s 138(1), I will now determine whether to exclude the evidence under the latter.

Exclusion of evidence under s 138 of the Evidence Act

Section 138 of the Evidence Act provides:

Exclusion of improperly or illegally obtained evidence
(1) Evidence that was obtained—
(a) improperly or in contravention of an Australian law; or
(b)in consequence of an impropriety or of a contravention of an Australian law—

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

The application of s 138(1) is a two-stage process in which the onus shifts from the applicant for exclusion, who must establish that the evidence was obtained improperly or unlawfully, to the other party, who must establish that the desirability outweighs the undesirability of admission.[97] Otherwise the evidence is ‘not to be admitted’, which makes improperly or unlawfully obtained evidence presumptively inadmissible.

[97]R v Mokbel (2012) 35 VR 156, 184 [309] (Whelan J), applying Parker v Comptroller-General of Customs(2009) 252 ALR 619, 626 [28] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ); see also DPP v Marijancevic (2011) 33 VR 440, 445 [17] (Warren CJ, Buchanan and Redlich JJA); R v Kerr and Lewis (Ruling No 1) [2015] VSC 64 (27 February 2015) [13] (T Forrest J).

Purpose of discretion in s 138(1)

The discretion in s 138(1) is the third one discussed by Redlich and Weinberg JJA in Haddara. Their Honours described it as ‘the Bunning v Cross[98] discretion’[99] and made the following remarks about its scope and application:

(iii)The third area of discretion arises where, as distinct from questions of unfairness to the accused, the evidence was unlawfully or improperly obtained.[100] Bunning v Cross,[101] especially the joint judgment of Stephen and Aickin JJ, has always been accepted as establishing a separate ‘public policy’ discretion for the rejection of admissible evidence.[102]

[98](1978) 141 CLR 54 (‘Bunning’).

[99]Haddara (2014) 43 VR 53, 56 [4].

[100]R v Ireland(1970) 126 CLR 321, 334–5; Bunning (1978) 141 CLR 54, 74–5.

[101](1978) 141 CLR 54.

[102]Haddara (2014) 43 VR 53, 58–9 [14(iii)].

The purpose of s 138(1) reflects its common law origins. As Mason CJ, Deane and Dawson JJ explained in Ridgeway v The Queen:

The basis in principle of the discretion lies in the inherent or implied powers of our courts to protect the integrity of their processes. In cases where it is exercised to exclude evidence on public policy grounds, it is because, in all the circumstances of the particular case, applicable considerations of ‘high public policy’[103] relating to the administration of criminal justice outweigh the legitimate public interest in the conviction of the guilty.[104]

This systemic public policy focus is different to the focus of s 90, which is to ensure the procedural fairness of the accused’s trial (see above).

[103]Bunning (1978) 141 CLR 54, 74 (Stephen and Aickin JJ).

[104](1995) 184 CLR 19, 31 (‘Ridgeway’).

Obtaining evidence ‘improperly’ and in ‘contravention’ of law

The words ‘improperly’ and ‘contravention’ in s 138(1) are not defined. In the Dictionary in the Evidence Act, ‘Australian law’ is defined to mean ‘a law of the Commonwealth, State or a Territory’ and such a law is defined to mean ‘a law (whether written or unwritten) of or in force in that place’. The Crimes Act and the Charter are Australian laws within this definition.

To understand what may be ‘improperly’ obtained evidence, the origin of s 138(1)(a) and (b) points to what was considered to be improper at common law. That was expressly discussed in Ridgeway.[105] Mason CJ, Dean and Dawson JJ held that the discretion to exclude evidence at common law arose with respect to ‘conduct which is not criminal but which is quite inconsistent with the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement’.[106]
[105](1995) 184 CLR 19.
[106]Ibid 36.

Taking that as the reference point, Basten JA (Barr J agreeing) decided in Robinson v Woolworths Ltd that

the identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as ‘the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement’. Secondly, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be ‘quite inconsistent with’ or ‘clearly inconsistent with’ those standards. Thirdly, the concepts of ‘harassment’ and ‘manipulation’ suggest some level of encouragement, persuasion or importunity in relation to the commission of an offence …[107]

Only the first two of those propositions are relevant in this case.

[107](2005) 64 NSWLR 612, 618–19 [23].

In the present case, the impropriety and the contravening run together. The failure of the police to arrange for the presence of an interpreter when questioning the accused (who was under arrest) contravened two Australian laws: s 464D(1) of the Crimes Act and s 38(1) of the Charter. The contravention of s 464D(1) of the Crimes Act occurred because that provision imposed upon the interviewing officer a duty that he did not perform. The contravention of s 38(1) of the Charter occurred because relevant human rights were engaged (see below) and, as a public authority under the Charter, the officer was obliged to act consistently with those rights, but he did not. As I held in DPP v Kaba, ‘acting or making decisions in contravention of an obligation imposed by s 38(1) of the Charter represents a contravention for the purposes of s 138(1) of the Evidence Act’.[108]
[108](2014) 44 VR 526, 617 [334] (‘Kaba’).

Non-compliance with the obligations imposed by s 464D(1) of the Crimes Act and s 38(1) of the Charter was also improper, for these provisions do not only specify legal obligations. They specify minimum standards that society expects law enforcement officers to observe. What I explained in Kaba by reference to s 38(1) is equally applicable to s 464D(1):[109]

Under s 38(1) of the Charter, it is ‘unlawful’ for a public authority to act in a way that is incompatible with human rights or to fail to give proper consideration to human rights in making a decision. Section 39(1) contemplates relief or remedy being given in respect of such unlawfulness in the specified circumstances. As police are public authorities under the Charter,[110] it is a source of the standards expected of law enforcement officers in Victorian society. This is relevant to determining whether police actions are improper under s 138(1) of the Evidence Act. Further … in a case like the present, this too will likely be contrary to or inconsistent with the individual’s rights under the ICCPR, which will be a relevant discretionary consideration under s 138(3)(f). [emphasis added]

This reasoning is consistent with s 139(1)-(2), which deems to be improper under s 138(1)(a) questioning of persons under arrest or official questioning without a caution being administered, and s 139(3), which requires the caution to be given or translated into ‘a language in which the person can communicate with reasonable fluency’.

[109]Ibid.

[110]Section 4(1)(d).

The circumstances of the case therefore engage the court’s powers to exclude evidence under s 138(1). An important matter in the exercise of that power is ‘the gravity of the impropriety or contravention’ (s 138(3)(d)), which is linked to s 138(3)(f) (see below). Consideration of that matter calls for examination of the fundamental rights and interests that are protected by the obligation in s 464D(1) of the Crimes Act and s 38(1) of the Charter in relation to the interrogation by police of suspects who speak limited English. I will begin with the importance of rights protection under s 138(1) and (3) generally and the role of s 138(3)(f) particularly.

Protection of human rights under s 138(1) and (3) of the Evidence Act

The Evidence Act 2008 (Vic) was based on the Evidence Act 1995 (Cth), which was largely based on reports of the Australian Law Reform Commission.[111] Like s 138(3)(f) of the Commonwealth Act, s 138(3)(f) of our Act provides that, when determining under sub-s (1) whether to exclude improperly or unlawfully obtained evidence, the court must take into account:

whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; …

The relevance of this paragraph is emphasised by the note at the foot of s 138(3) which reads: ‘The International Covenant on Civil and Political Rights is set out in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 of the Commonwealth’.

[111]See generally Stephen Odgers, Uniform Evidence Law in Victoria (Lawbook Co, 2^nd ed, 2013) 1ff.

The origin of s 138(3)(f) may be traced back to the recommendation made by the ALRC (then named the Law Reform Commission) in 1985 that, when enacting comprehensive evidence legislation, the Commonwealth Parliament should not adopt the course of disregarding unlawfulness or impropriety in obtaining evidence. Respect for human rights was a significant reason:

such an approach would force trial judges to ignore serious infringements of human rights by law enforcement authorities. It would be inconsistent with the historical role of the courts in ensuring that the criminal process is fair, to require them to disregard impropriety occurring during criminal investigation and before trial. Further, such an approach would ignore the reality that, on occasion, there are no real alternative methods [to challenging the admissibility of the evidence] available to an individual citizen whose rights have been infringed.[112]
[112]Law Reform Commission, Evidence, Interim Report No 26, Vol 1, Report No 26 (1985) 532 [960].

The ALRC went on the make suggestions about the structure and content of what became s 130 of the Evidence Bill 1991 (Cth). Section 130(3)(f) of that Bill, which is in the same terms as s 138(3)(f) of our Act, reflected its recommendation that infringement of rights should be addressed in the exercise of the exclusion discretion:

(f) Infringement of Rights of Accused. The trial judge should expressly consider the extent to which the individual accused’s rights have been infringed. While this factor may be seen as an aspect of the seriousness of the misconduct, it is more appropriate to deal with it separately, given the specific public interest in protecting individuals from infringement of their rights.[113]

[113]Ibid 534–6 [964].

The general policy that the infringement of human rights must be expressly considered when determining whether to exclude improperly or unlawfully obtained evidence was expressed in the enacted legislation by reference to the rights of persons under the ICCPR. A number of provisions of the ICCPR specify and protect the fundamental rights and freedoms of persons who may be engaged in the processes of criminal justice. The application of the relevant rights in the ICCPR is not confined to the final hearing and determination of criminal charges but extends to police arrest and interrogation.[114] As relevant here, the main[115] rights are those specified in arts 14(1) and (3) and 26.
[114]See generally Matsoukatidou v Yarra Ranges Council (2017) 51 VR 624, 650 [82] ff (Bell J) (‘Matsoukatidou’).
[115]Other rights in the ICCPR that may have application in relation to the exercise of police powers of arrest and interrogation include the right to liberty and security of the person in art 9(1), the right to freedom of movement in art 12(1) and the right to freedom from arbitrary interference with privacy in art 17(1): see Kaba (2014) 44 VR 526, 549 [74], 617 [333]–[334], 647 [462]–[465] and on cognate human rights see the international jurisprudence discussed at 621–44 [351]–[444].

Article 14(1) of the ICCPR relevantly provides:

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

Article 14(3) specifies a number of particular rights applying in the determination of criminal charges against persons (which encompass aspects of investigative processes), as follows:
In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
(a)To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;
(b)To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(c) To be tried without undue delay;
(d)To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
(e)To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(f)To have the free assistance of an interpreter if he cannot understand or speak the language used in court;

(g) Not to be compelled to testify against himself or to confess guilt.

Article 26 is the equality and anti-discrimination provision:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The general terms of arts 14(1) and (2) and the specific terms of arts 14(3)(a) and (f), as well as the terms of art 26, operate to protect persons who might not be capable of effectively exercising their rights in the processes of criminal justice because they are not sufficiently proficient in the language customarily used in the courts or by police which, in Australia, is English. It was plainly understood that the rights-protecting sections of the Evidence Bill 1991 (Cth), which engaged these provisions of the ICCPR, when enacted, would be particularly important in relation to the potential exclusion of evidence obtained during the interrogation by police of such persons. For example, in a report in 1992, the ALRC discussed the subject of ‘Interpreters in the investigation of crime’ in which it stated:

The Evidence Bill 1991 (Cth) cl 130 provides for the exclusion of evidence on various grounds, several of which may apply where an interpreter was not present during interrogation. The Bill creates a presumption that improperly obtained evidence — including evidence obtained in contravention of a law — is not to be admitted. It reverses the onus placed on the defence at common law. This provision makes it clear that evidence obtained in the absence of an interpreter when one should have been used is evidence improperly to be obtained and therefore prima facie to be excluded. Further, when weighing the desirability of admitting the evidence against the undesirability of admitting evidence improperly obtained, the court is directed to take into account whether the impropriety infringed any right recognised in the ICCPR.[116]

The Evidence Bill 1991 (Cth) was enacted as the Evidence Act 1995 (Cth), which led to the Evidence Act 2008 (Vic), with that plain understanding.

[116]Law Reform Commission, Multiculturalism and the Law, Report No 57 (1992) 55–6 [3.48].

The language of s 138(3)(d)–(f) of the Evidence Act generally and s 138(3)(f) specifically, together with the strong rights-protecting purpose of these provisions, make clear that improper or unlawful police conduct which is contrary to or inconsistent with the rights of persons under the ICCPR is an aggravating consideration when assessing the gravity of the impropriety or contravention under s 138(3)(d). In Kaba is to be found a discussion of the close attention paid to cognate human rights in comparable jurisdictions in relation to discretionary exclusion of improperly or unlawfully obtained evidence.[117] As that discussion reveals, a breach of human rights by police in the course of obtaining evidence is treated as a matter of significant importance when balancing the considerations for and against the exclusion of such evidence, which is consistent with the position under our s 138(3)(d)–(f).
[117](2014) 44 VR 526, 621–44 [351]–[444] (Bell J).

In the present case, the failure by police to arrange an interpreter for the accused and delay the questioning until one was available was an obvious case of (indirect) language discrimination contrary to art 26 of the ICCPR. Because language is an incident of race (as that concept is understood) and national origin (the accused is an Italian immigrant), it was discriminatory on those grounds as well. Police interrogated the accused to his disadvantage in English, which he could not sufficiently understand because his natural language was Italian and he was not sufficiently proficient for the purpose in English. Under s 138(3)(f), this is an aggravating consideration when the gravity of the impropriety or contravention is considered under s 138(3)(d).

Although it is probable that the questioning of the accused in English also contravened rights applying to him under arts 14(1) and (2) of the ICCPR, the gravamen of the breach of human rights that occurred was that the conduct of police was discriminatory, which is covered expressly by art 26. I will therefore confine myself to that provision.

Section 464D(1) of the Crimes Act has an important role to play in protecting the rights of suspects who speak no or poor English, as does s 139(1)-(3) of the Evidence Act. Further, art 2(1) of the ICCPR obliges Australia to ‘respect and ensure’ the specified rights ‘to all individuals … without distinction of any kind, such as race …language … or national … origin …’ Section 464D(1) is consistent with that obligation, as is s 139(1)-(3) of the Evidence Act. I will consider them next.

Questioning suspects with an interpreter: s 464D(1) of the Crimes Act and s 139(3) of the Evidence Act

Section 464D(1) provides:

Right to an interpreter
(1)If a person in custody does not have a knowledge of the English language that is sufficient to enable the person to understand the questioning, an investigating official must, before any questioning or investigation under section 464A(2) commences, arrange for the presence of a competent interpreter and defer the questioning or investigation until the interpreter is present.

Section 464D(1) was enacted by the Crimes (Custody and Investigation) Act 1988 (Vic). Director of Public Prosecutions v Toomalatai[118] discusses the importance of this legislation, which introduced a package of measures designed to protect the rights of persons in custody and under investigation:

These reforms were introduced by the Victorian Parliament following the recommendations of the Consultative Committee on Police Powers of Investigation whose report was published in 1986. The committee stated the object of the reforms was to introduce more flexibility into police investigations and to incorporate commensurate checks and balances to ensure the rights of individuals were recognised and safeguarded.[119] The committee went on to state this:[120]

In any investigatory process the classes of people who are most vulnerable, are those with language problems, those who may be intellectually impaired, those who are young, those who are of low intelligence, those who while not guilty of the offence of which they are suspected may nonetheless have matters to hide … In addition, there is a need in any democratic society to guard against the over zealous exercise of power whether by police, other officials or government at large.

The reference by the Committee to persons with ‘language problems’ being ‘most vulnerable’ will be noted.

[118](2006) 13 VR 319, 327 [42] (see also 326–7 [40]–[41]) (Bell J).

[119]Consultative Committee on Police Powers of Investigation, ‘Custody and Investigation’ (Report on Section 460 of the Crimes Act 1958, April 1986) para 6.1.

[120]Ibid para 6.2.

Section 139 was enacted with the Evidence Act in 2008. Sub-sections (1) and (2) apply to questioning of a person under arrest or official questioning. The obligation imposed in s 139(1)(c) and (2)(c) is to caution the person, otherwise statements made or acts done by the suspect during the questioning are taken to have been improperly obtained under s 138(1)(a). Section 139(3) requires that:

[the} caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency, but need not be given in writing unless the person cannot hear adequately.

Chronologically, s 464D(1) of the Crimes Act was enacted before s 139(1)-(3) of the Evidence Act. But they deal with similar subject matter. The treatment is not identical. Section 464D(1) creates a right to an interpreter, not a principle of evidence, and is directed towards the entire questioning. The criterion is that the person ‘does not have knowledge of the English language sufficient to understand the questioning’. The obligation imposed is to arrange an interpreter and defer the questioning until one is present, and both are express. Section 139(3), with s 139(1)-(2), deems statements made and acts done during certain questioning to have been improperly obtained under s 138(1)(a), and is directed at the caution. The criterion in s 139(3) is the ‘language in which the person is able to communicate with reasonable fluency’. The obligation imposed expressly is to translate the caution into such a language. As the questioning will be improper unless that is done, there is an implicit obligation to defer the questioning until it is. Although different to that extent, both provisions can operate together. There is nothing in s 139 specifically or the Evidence Act generally to suggest that this later enactment was intended to qualify or affect the operation of the earlier enactment in this respect. Therefore the provisions impose substantively independent obligations.

As the heading above s 464D(1) (‘Right to an interpreter’) makes clear, the purpose of the provision is to ensure that persons in custody for questioning obtain access to an interpreter, and are not further questioned until one is present, where their English is insufficient to enable them to understand the questioning. The person’s right to an interpreter is ensured by imposing upon the investigating official a positive duty to arrange for an interpreter to be present, and to delay the questioning until this happens, in that situation. Section 464D(1) thus expresses and makes effective the fundamental human rights values of equality and non-discrimination in a particular aspect of the operation of the criminal justice system — questioning by police of people with no or poor English. Those fundamental values are also protected by provisions of the ICCPR, which I have discussed, and of the Charter, which I will discuss.

Section 464D(1) states a test of functional proficiency in terms of whether the person in custody ‘does not have a knowledge of the English language that is sufficient to enable the person to understand the questioning’. This relates to the suspect individually, not to persons in the position of the suspect objectively or hypothetically. The suspect must possess sufficient knowledge to be able to understand ‘the’ questioning, that is, questioning that is to take place by way of police interrogation, usually in the unfamiliar environment of a police station. The relationship of power between the person being questioned and the interrogating police officer is very unequal. The position of the suspect is one of vulnerability. The suspect will usually have a high personal stake in the outcome of the interview. This is a highly stressful situation for interviewees to be in, which will likely exacerbate their language difficulties, particularly for the elderly. While the test is expressed in terms of the capacity of the person to understand the questioning, whether the person has that proficiency for the communication of their answers is clearly relevant to that assessment.

The positive duty is enlivened by the objective fact that the person in custody does not have sufficient knowledge of the English language to understand the intended questioning. While the investigating official must make a personal decision about that matter, the decision is not conclusive and may be challenged. Whether the suspect did not in fact have this knowledge is justiciable in the court when the admissibility of the evidence is being considered, as in the present case. Where the investigating official does not obtain an interpreter and delay the questioning, the issue whether the duty in s 464D(1) was thereby breached will depend upon this examination.

On that examination in the present case, the duty was breached (see above). This too is a circumstance of aggravation when the gravity of the impropriety or contravention is considered under s 138(3)(d).

Much of the this analysis is relevant to s 139(3) of the Evidence Act: its operation is enlivened by the objective fact that the person is under arrest or official questioning and is not able to communicate with reasonable fluency; it applies to suspects or persons questioned individually, not to persons in their position objectively or hypothetically; the person must be able to communicate with reasonable fluency in the given situation, that is, questioning that is to take place by way of police or official interrogation, often in the unfamiliar environment of a police station where power relationships are unequal and the high stressful environment will likely exacerbate language difficulties, particularly for elderly immigrants.

On the evidence, I find that the accused was not able to communicate with reasonable fluency in the English language. The caution was not given in a language in which the accused was reasonably so fluent. Therefore the obligation in s 139(3) was breached. The accused was a person under arrest for an offence at the time. His situation was covered by s 139(1). Under that provision, evidence of his statement (which contains the admissions) is therefore taken to have been obtained improperly under s 138(1)(a).

Section 464D(1) of the Crimes Act and s 139(3) of the Evidence Act give effect to the fundamental principle of equality before the law, which is a human right in s 8(3) of the Charter, and also contribute to ensuring the human right of persons charged with a criminal offence to a fair trial, which are human rights under ss 24(1) and 24(2). Police are obliged by s 38(1) of the Charter to act consistently with those rights. To that issue I now turn.

Human rights in the Charter

Here is s 8(3) of the Charter:

Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.

The equality right in s 8(3) protects the inherent dignity of all persons whatever language they speak and whatever their race or national origin. A full discussion of the various elements of the right is to be found in Re Lifestyle Communities Ltd (No 3)[121] and Matsoukatidou v Yarra Ranges Council.[122]

[121](2009) 31 VAR 286, 310–46 [105]–[303] (Bell J).

[122](2017) 51 VR 624, 638–44 [47]–[61], 657–9 [102]–[108] (Bell J).

As public authorities under the Charter,[123] police officers are obliged by s 38(1) to ‘act in a way that is compatible with’ this right, and to make decisions that give it ‘proper consideration’. Under s 38(1), it is ‘unlawful’ to do otherwise. When police officers are interrogating persons for whom English is only a partial language, as in the present case, the critical element of s 8(3) is the third — the right to equal and effective protection against discrimination. As was held in Matsoukatidou, this right is ‘based on the concept of substantive equality in law and in fact’ and requires that, ‘in the operation and administration of the law, people have equal and effective protection against discrimination’.[124] A police interrogation is an instance of the operation and administration of the law. Police must therefore conduct interrogations ‘in a way’ that gives people equal and effective protection against discrimination.
[123]Section 4(1)(d).
[124](2017) 51 VR 624, 657–8 [106] (Bell J).

Giving equal and effective protection against discrimination may mean accommodating difference in the conduct of an interrogation, such as the paucity of a suspect’s English. Ensuring that an interpreter is present during a police interrogation of someone with poor English is an accommodation of difference without which the interrogation may be discriminatory and therefore in contravention of s 8(3) and unlawful under 38(1). An example of accommodating difference relating to another aspect of the operation and administration of the law was discussed in Matsoukatidou:

This element of the right may require that, in the conduct of hearings and procedures followed by courts and tribunals, positive adjustments and accommodations are made so that some parties are treated differently to other parties in order to ensure that they have equal and effective protection of the law.[125]

This logic applies equally to police interrogations of people with poor English.

[125]Ibid 657–8 [106].

As more fully discussed in Matsoukatidou,[126] in s 8(3) the concept of ‘discrimination’ is not unlimited (as it is in art 26 of the ICCPR: see above) but engages the definition of that word in s 3(1). According to that definition, discrimination ‘in relation to a person means discrimination (within the meaning of the Equal Opportunity Act 2010 (Vic)) on the basis of an attribute set out in section 6 of that Act; …’ The effect of these provisions was stated in Matsoukatidou:

The definition in [s 3(1)] incorporates by reference into the Charter the specified (and not other) provisions of the Equal Opportunity Act. So incorporated, they operate according to their own terms to give protection against discrimination on the basis of an attribute within the free-standing legislative framework of the Charter (including under s 8(3)) whether or not the discrimination is unlawful within the separate legislative framework of the Equal Opportunity Act.[127]

Thus it is the operation of the incorporated provisions in the context of the Charter that is important, not whether the relevant conduct is unlawful under the Equal Opportunity Act.

[126]Ibid 638–9 [47]–[48].

[127]Ibid 638–9 [47].

Turning to those incorporated provisions, under s 7(1)(a) of the Equal Opportunity Act, discrimination means ‘direct or indirect discrimination on the basis of an attribute’. Section 7(2)(b) includes within that concept discrimination on the basis ‘of a characteristic that a person with that attribute generally has’. Section 9(1) defines ‘indirect discrimination’ to mean the imposition of ‘a requirement, condition or practice — (a) that has, or is likely to have, the effect of disadvantaging persons with an attribute; and (b) that is not reasonable’. Section 6(m) specifies the attribute ‘race’. The definition of that word in s 3(1) is:

race includes—
(a) colour;
(b) descent or ancestry;
(c) nationality or national origin;
(d) ethnicity or ethnic origin;
(e) if 2 or more distinct races are collectively referred to as a race—
(i) each of those distinct races;
(ii) that collective race;

Applied to the present case, that the accused is proficient in Italian and not proficient in English is a natural attribute or characteristic of his race or national origin, which is Italian. In conducting the interrogation in English and without an interpreter, the police disadvantaged him on the basis of that attribute (when there was no reasonable justification for doing so). This represented indirect discrimination under s 7(1)(a) of the Equal Opportunity Act (as it did under art 26 of the ICCPR) and was contrary to the obligation of the interviewing officer to ensure the right of the accused to equal and effective protection against discrimination (s 8(3) of the Charter). The police officer conducting the interview thereby acted in a way that was unlawful under s 38(1).

In Kaba, I examined the consequence of a violation of the Charter for the exercise of the discretion in s 138(1) of the Evidence Act to exclude improperly or unlawfully obtained evidence, holding that ‘any violation of a Charter right should be regarded as serious[128] as the violation itself represents damage to the administration of justice[129] and the rule of law’.[130] I adopt that approach here.

Should evidence of the admissions be excluded under s 138(1)?

[128]R v Shaheed [2002] 2 NZLR 377, 418–19 [143] (Richardson, Blanchard and Tipping JJ); R v Grant [2009] 2 SCR 353, 393 [68]–[69] (McLachlin CJ and Charron J for the court).

[129]Hamed v The Queen [2012] 2 NZLR 305, 362 [187] (Blanchard J); R vMellenthin [1992] 3 SCR 615, 629 (Cory J for the court).

[130]Kaba (2014) 44 VR 526, 650 [482].

I can now determine whether the desirability of admitting the evidence outweighs the undesirability of doing so. As the evidence was improperly and unlawfully obtained, the onus of so satisfying me rests upon the prosecution. The matters specified in s 138(3) must be taken into account. Under s 138(1), the evidence ‘is not to be admitted’ unless I am so satisfied.

In relation to para 138(3)(a), the probative value of the evidence relates to the motive of the accused to commit the crimes charged (see above). The admissions are not confessional. Given the circumstances in which it was obtained, especially that the interview was not substantively voluntary, the probative value of the evidence is undermined by the unreliability of the evidence, which I have extensively discussed.

In relation to para 138(3)(b), the evidence is of some importance in the proceeding as motive is a relevant consideration for the jury to take into account. But it is not of fundamental importance as there is other evidence from which the same motive may be inferred.

In relation to para 138(3)(c), the alleged offences are serious crimes of violence (see above). It is strongly in the public interest that the perpetrator of such crimes be brought to justice. But the prosecution of the accused will proceed even if the evidence is excluded.

In relation to paras 138(3)(d), (e) and (f), the gravity of the impropriety and contraventions is high. The evidence does not support a finding that the police conduct was intentional or reckless. The interviewing officer made an error of judgment in failing to appreciate that the accused did not have sufficient English to understand the caution and questioning, and to communicate his answers (s 464D(1) of the Crimes Act), and was not able to communicate in English with reasonable fluency (s 139(3) of the Evidence Act). But the consequences of the error of judgment were very serious. The interview that was conducted was not voluntary in actual substance whatever may have been the outward appearance. In conducting the interview without an interpreter being present, the officer violated the human rights of the accused and his own associated legal obligations:

· the right of the accused to equal and effective protection against discrimination in art 26 of the ICCPR;

· the obligation of the officer to arrange for an interpreter and defer the questioning until one was available in s 464D(1) of the Crimes Act;

· the right of the accused to equal and effective protection against discrimination in s 8(3) of the Charter and the obligation of the officer to act compatibly with that right in s 38(1); and

· the obligation of the officer to give or translate the caution into a language in which the accused could communicate with reasonable fluency in s 139(3) of the Evidence Act.

The violation of these rights and obligations, individually and collectively, weighs heavily on the side of making undesirable the admission of the evidence because they damage the administration of justice and the rule of law and the court may thereby denounce what occurred.

Sections 138(3)(g) and (h) are not relevant.

Taking those considerations into account, it has not been established that the desirability outweighs the undesirability of admitting the evidence and the evidence must therefore not be admitted.

Conclusion

The defence has established that the admissions were obtained from the accused, an elderly Italian immigrant, when interviewing him without the assistance of an interpreter. He did not have sufficient knowledge of the English language to be able to understand the questioning or communicate his answers. He did not appreciate his human rights, especially his right to remain silent, and that the admissions could be used against him in court. The interview was not actually voluntary, whatever the outward appearances.

Under s 90 of the Evidence Act, the defence has established that it would be unfair to admit evidence of the admissions in the special hearing of the charges because the interview was not substantively voluntary, the admissions are unreliable and it would place the accused in a position of unfair forensic disadvantage.

Under s 138(1), the defence has established that evidence of the admissions was improperly and unlawfully obtained. The prosecution has not established that the desirability outweighs the undesirability of admitting the evidence, especially having regard to the conduct of the police, which breached the right of the accused to an interpreter, breached the obligation of police to obtain an interpreter and defer the questioning until one was present, and breached the obligation of police under the Charter to ensure that the accused received equal and effective protection against discrimination.

Evidence of the admissions will therefore be excluded.

[2018] VSC 339

26 June 2018