Director of Public Prosecutions v Viel & Vocaj
[2024] VCC 336
•21 March 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01022; 01023
| Director of Public Prosecutions |
| v |
| Paolo Viel & Katrine Vocaj |
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JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 & 5 March 2024 | |
DATE OF RULING: | 21 March 2024 | |
CASE MAY BE CITED AS: | DPP v Viel & Vocaj | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 336 | |
RULING
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Subject:CRIMINAL LAW – EXCLUSION OF UNLAWFULLY OR IMPROPERLY OBTAINED EVIDENCE – RECORDS OF INTERVIEW
Catchwords: Application to exclude evidence – Records of interview – Competency of translator – ROIs replete with mis-translations – Translator distracted – Elderly, non-English fluent accused – Unlawfully or improperly obtained evidence
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic); Crimes Act 1958 (Vic); Evidence Act 2009 (Vic); Australian Human Rights Commission Act 1986 (Cth)
Cases Cited:DPP (Vic) v BB [2010] VSCA 211; Gaio v R (1960) 104 CLR 419; Pollard v The Queen (1992) 176 CLR 177; Kadir v The Queen [2020] HCA 1; R v Em [2003] NSWCCA 374; Bunning v Cross (1978) 141 CLR 54; R v Ireland (1970) 126 CLR 321; Johnston (a Pseudonym) v The King [2023] VSCA 49; Robinson v Woolworths Ltd [2005] NSWCCA 426; R v Helmhout [2001) NSWCCA 372; R v Nguyen [2015] SASCFC 7; Parker v Comptroller-General of Customs [2007] NSWCA 348; DPP v Marijancevic [2011] VSCA 355; R v Gallagher [2015] NSWCCA 228; DPP (Vic) v Natale [2018] VSC 339; ASIC v Sigalla (No 2) [2010] NSWSC 792; Wu v The Queen [2020] VSCA 94; Ridgeway v The Queen (1995) 184 CLR 19; NT v The Queen [2012] VSCA 213
Texts Cited:Macquarie Dictionary; Weinstein, Anderson, Marychurch and Roy, Uniform Evidence in Australia (LexisNexis, 3rd ed, 2020)
Ruling: Records of interview excluded
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APPEARANCES: | Counsel | Solicitors |
For the Accused (Viel) | Mr J. Portelli | Giorgianni & Liang Lawyers |
| For the Accused (Vocaj) | Ms J. McGarvie | Giorgianni & Liang Lawyers |
| For the DPP | Ms K. Ottrey | Office of Public Prosecutions |
HIS HONOUR:
Introduction
1Paolo Viel and his wife, Katrine Vocaj, have been charged with serious criminal offences. The charges arise from a police raid of a ‘crop house’ on 15 December 2022.
2Each accused is charged with cultivating a narcotic plant, namely Cannabis L, in a quantity that was not less than the commercial quantity for the plant.[1] The maximum sentence for this offence is imprisonment for 25 years. Both face an alternative charge of possession of a narcotic plant.[2] Mr Viel also faces a charge of knowingly dealing with the proceeds of crime.[3]
[1] Contrary to s 72A of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
[2] Contrary to 73(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
[3] Contrary to s 194(2) of the Crimes Act 1958 (Vic).
3The prosecution case against both of the accused is set out in a Summary of Prosecution Opening dated 16 February 2024 (‘SOPO’). In broad summary, the evidence relied upon consists of observations made and evidence seized by police during the course of the raid as well as admissions made by each accused when interviewed while in police custody later on 15 December 2022.[4]
[4] The admissions are set out at SOPO, [41] and [43].
4Ms Vocaj denies intentionally cultivating cannabis and disputes her knowledge or awareness of the Cannabis alleged to have been cultivated at the premises.[5] Mr Viel disputes that he intended to cultivate a narcotic plant.[6]
[5] Defence Response of Katrine Vocaj dated 27 February 2024, [1].
[6] Defence Response of Paolo Viel dated 1 March 2024, [4].
5Both Mr Viel and Ms Vocaj have applied to the Court for rulings that the records of interview conducted by police with them when they were in police custody are inadmissible as evidence against them at their trials. Mr Viel and Ms Vocaj argue that police failed to comply with s 464D of the Crimes Act 1958 (Vic) (‘Crimes Act’) by failing to arrange for the presence of a competent interpreter and failing to defer the questioning until such an interpreter was present.
6They further argue that this failure enlivens the discretion conferred by s 138 of the Evidence Act 2009 (Vic) (‘Evidence Act’) to exclude the evidence.
7Mr Viel also argues that police contravened s 464C of the Crimes Act in his case by failing to inform him that he may communicate with or attempt to communicate with a legal practitioner.
8Finally, both applicants submit that the records of interview should be excluded pursuant to s 90 of the Evidence Act on the basis that it would be unfair to them for the prosecution to use the evidence.
9The prosecution submits that the police did not contravene either s 464C or s 464D. It contends that the records of interview should not be excluded in their entirety but rather could be edited in the normal manner to exclude irrelevant or unfairly prejudicial material prior to their use at the trial of the accused.
10The applications were heard on 4 and 5 March 2024. Mr Viel was represented by Mr Portelli; Ms Vocaj was represented by Ms McGarvie. The prosecutor was Ms Ottrey. The records of interview were played in open court. I read the transcripts that are included in the depositions.[7]
[7] Depositions, 292 – 390.
11The applicants furnished the Court with complete translations of the recorded interviews prepared by Oncall Interpreters & Translators (‘Oncall’).[8] It was common ground that these translations accurately record what was said during the interviews in English and, more importantly, accurately translate what was said by the applicants and the interpreters in Italian during the course of the interviews.
[8] Oncall Translated ROI of Katrine Vocaj Transcript dated 15 December 2022 (Exhibit D1) and Oncall Translated ROI Transcript of Paolo Viel dated 15 December 2022 (Exhibit D3).
12Finally, the Court had the witness statements and the transcript of the committal hearing which was conducted on 15 June 2023. An extract of the Victorian Police Manual was tendered in evidence.[9]
[9] Extract of Part 14 of the Victoria Police Manual (Exhibit D2).
13It is first necessary to set out the circumstances of the police raid before examining the evidence of the manner in which the police conducted the records of interview.
The Police Raid
14The accused were both present at the house at 31 Loch Street, Cranbourne when it was raided by police shortly before 8:00 am on 15 December 2022. Police found a large number of mature and young Cannabis plants at the house as well as an elaborate electrical by-pass arrangement.
15Police also found evidence linking both Mr Viel and Ms Vocaj to the premises. For example, they found a phone, wallet and licence in the name of Mr Viel on a bedside table together with other documents in the names of Mr Viel and Ms Vocaj. Police also found power bills for the house addressed to ‘Tony Romano of 31 Loch Street, Cranbourne’.[10]
[10] SOPO, [24-25], [35].
16It was immediately obvious to police during the raid that Mr Viel and Ms Vocaj had a limited understanding of English and details of the arrest and caution were ‘administered via phone interpreter due to their limited English’.[11]
[11] Statement of A/Detective Sergeant Brad Coller dated 22 December 2022, [5] (Depositions, 34).
17Both Mr Viel and Ms Vocaj were arrested and transported by police to the Cranbourne police station later that morning to be interviewed.
The Interviews
18It is necessary to consider the interviews separately starting with the two interviews conducted with Mr Viel.
Mr Viel
19The first interview commenced at 9:49 am and was suspended at 9:55 am. The second interview commenced at 1:05 pm and concluded at 2:08 pm.
20The first interview was conducted by Senior Constable Mark Barker whose corroborator was Constable Ping. The interview was carried out via an Italian language telephone translator who is only identified by their interpreter number, 1254.
21The second interview was conducted by First Constable Connelly whose corroborator was Constable Hover. A different translator to the one used for the first interview was used and she also translated the interview via the telephone. She is not identified.
22The prosecution seeks to rely on the following admissions made by Mr Viel in the course of these interviews:
(a) He has been living at 31 Loch Street since May or June 2020;
(b) The plants are cannabis;
(c) Someone was paying him; they leave money in the letterbox;
(d) They do not pay rent to stay there;
(e) He and his wife look after the plants but usually him;
(f) ‘We’ cut and dry the plants and then they get picked up;
(g) The money from his drawer is from cannabis; and
(h) There is a machine to clean the flowers.[12]
[12] Prosecution Submissions dated 5 March 2024, Annexure A.
23The Oncall translation of the first interview reveals significant translation errors. A few examples will suffice.
24Question number 6 as asked by Senior Constable Barker was:
I intend to interview in relation to cultivate a commercial quantity of cannabis, traffic cannabis, theft and dealing with proceed of crime[13]
[13] Emphasis added.
25What was said to Mr Viel by the interpreter was:
So, this interview is about the fact that they found you with a certain amount of cannabis and with an amount of crime related money[14]
[14] Exhibit D3, 5 (emphasis added).
26Senior Constable Barker told Mr Viel that he had a number of rights including a right to attempt to communicate with a legal practitioner.[15] Later in the interview, he asked Mr Viel if he wanted to exercise this right in the following terms:
Would you like to exercise any of these rights before continuing?[16]
[15] Depositions, 297.
[16] Ibid.
27Mr Viel’s answer was:
I have nothing to…what can I say? They found me here and I will inform a lawyer when the time comes…No comment
28However, this was incorrectly translated as:
I don’t know what to say. I’ve no comments about what happened[17]
[17] Exhibit D3, 8.
29During the second interview, the translator again translated ‘commercial quantity of cannabis’ as ‘the cannabis they found’.[18]
[18] See Depositions, 300 and cf. Exhibit D3, 2.
30Mr Viel was again informed of his right to communicate with a legal practitioner. When asked if he wished to exercise the right, he responded:
I don’t have anyone and I don’t know anyone, what should I do?
31This response was incorrectly translated to police as:
I don’t know anybody and I don’t know anyone so No[19]
[19] Exhibit D3, 4.
32Mr Viel’s inquiry of the police was mis-translated as him not wanting to exercise the right. The interview then proceeded with Mr Viel making a number of significant admissions upon which the prosecution intend to rely at his trial.
33At question 45, the police told Mr Viel that they had ‘executed a warrant at 31 Loch Street in Cranbourne’. This was mis-translated as:
Today they had a request to check your house and today the sergeants came to your house[20]
[20] Ibid, 5 (emphasis added).
34In the context of this investigation, the difference between the neutral ‘31 Loch Street’ and ‘your house’ is obviously very significant. The interview proceeded for some time with 31 Loch Street being referred to as Mr Viel’s house until Mr Viel said, ‘It’s not our house, we don’t even pay rent there’. But even this was mis-translated as: ‘No, we don’t pay even the rent there’.[21]
[21] Ibid, 22.
35At question 111, Mr Viel was asked by police about another address in Bentleigh where he and Ms Vocaj lived. His answer was:
After this, we were deciding to go and live in Bentleigh and leave where they found us. We lived here because we had been applying for a house since we were in [unclear name of suburb] because I am sick and after 6/7 years they gave us the apartment. We furnished it a bit and we wanted to go and live here … because it is our destination
36However, what was translated to police was:
So, just saying. Because we wanted to go and live there, we want to go and live there[22]
[22] Exhibit D3, 14.
37Mr Viel was asked about the arrangements under which he came to be at the address. He explained:
we were offered this house when we arrived here, a guy, I don’t know where, because we said on Facebook that we were looking for a house and one day a guy found us and asked us if we were looking for a house “yes” and he said “I can propose something for you”. We talked and they told us “we give you some money and you do this” and that’s it[23]
[23] Ibid, 21.
38What the police heard from the interpreter was:
OK, so basically someone told us that they’ll pay us something and you’ll do this … just do this and we’ll pay you
39The problems with the second interview are not limited to mis-translations. At the committal hearing, First Constable Connelly was asked by the Magistrate about the quality of the interpreting during the second interview. He agreed that the interpreter appeared to be behaving in an unprofessional way. This was a reference to parts of the interview when the interpreter can be heard swearing and is clearly distracted by something else she is doing while interpreting the interview. It seems that the interpreter may have been driving while interpreting the interview.[24]
[24] Ibid, 307-308.
40It is common ground that only the interpreter used for the second interview with Mr Viel had any relevant accreditation. She held a provisional NAATI 3 accreditation. There was no evidence before the Court about what this means but I infer it is something less than a full NAATI 3 accreditation. The interpreters for the first interview with Mr Viel and the interview with Ms Vocaj were not NAATI qualified or accredited.
41It is also common ground that, in arranging for the interpreters, police made no enquiries of their qualifications or accreditation. This was despite the requirements of Part 14 of the Chapter on Interviews in the Victoria Police Manual which relevantly stated:
To ensure procedural fairness, for formal interviews a National Accreditation Authority for Translators and Interpreters (NAATI) qualified professional interpreter is required[25]
[25] Exhibit D2.
42First Constable Connelly told the court that he had arranged for an interpreter to come to the station in person but was told ‘that’s what was happening and then received a phone call about 20 minutes later saying they can’t get anyone in persona [sic] and that … obviously it’d have to be conducted over the phone’.[26]
[26] Transcript of Proceedings, The Police v Vocaj & Viel (Magistrates’ Court of Victoria, N12701261, Magistrate Thomas, 15 June 2023) 35 [4-9].
43First Constable Connelly explained that he did not ask any questions about the qualifications or NAATI level of the interpreter but that he ‘probably will from now on’.[27]
[27] Ibid, 35 [15-18].
44The officer was asked by the Learned Magistrate about the arrangements for the interpreter:
Did you feel simply that you had no other choice than to use that interpreter in the circumstances?---Well, we'd made multiple efforts to try and get interpreters, and, um, I felt that – obviously very unprofessional the language she was using. But I felt that Mr Viel was understanding the question being asked of him and she was interpreting
All right, well that doesn't answer my question. Did you think there was no other choice than to use that interpreter?---Yeah, pretty much. We'd already rang, so, yeah[28]
[28] Ibid, 40 [25] – 41 [4].
Ms Vocaj
45Ms Vocaj was interviewed at Cranbourne Police Station on 15 December 2022 by Senior Constable Carlton Dow-Philcox and Senior Constable Mark Barker commencing at 1:13 pm. The interview was conducted with the help of Julian Soltice, an Italian language interpreter who was on the phone. Mr Soltice translated the questions from English to Italian and the answers from Italian to English.
46The visual and audio recording of the interview was played to the Court. The evidence includes a police transcript of the interview.[29]
[29] Depositions, 327-390.
47The prosecution seeks to rely on the following admissions made by Ms Vocaj in the course of this interview:
(a) She has been at the address for nearly a year;
(b) She has a dog ‘Bella’ which is registered to 31 Loch Street; the dog has been with them for a year;
(c) She only sleeps there; she has dinner there and her cappuccino in the morning;
(d) A man called Tony Romano offered her the arrangement; she met him at the poker machines in Hallam; he did not mention the plants;
(e) She does not pay rent;
(f) She is paid $1000 a month; they put the money in the letterbox or on the table;
(g) The marijuana is in the rooms and the garage; and
(h) She is aware the plants are there now; she is guilty.[30]
[30] Prosecution Submissions dated 3 March 2024, Annexure A.
48There is a further translation of the interview in evidence. This was prepared by Oncall for the lawyers representing Ms Vocaj.
49As is the case with Mr Viel’s recorded interviews, and based on this further translation, it is common ground that the interview with Ms Vocaj is replete with mis-translations. Once again, I need only set out a sample.[31]
[31] Annexed to Ms Vocaj’s lawyer’s written submissions dated 27 February 2024 is a complete list.
50Ms Vocaj was told the following by police:
You have the right to communicate or attempt to communicate with a legal practitioner
51This was mis-translated as:
You have the right to communicate with a legal trainee[32]
[32] Exhibit D1, 4 (emphasis added).
52At question 71, police asked Ms Vocaj:
Are you paid to stay there [at 31 Loch Street]?
53However, this was mis-translated as:
Are you paid to say this?[33]
[33] Ibid, 16.
54This led to a confusing series of questions and answers of clarification.
55Ms Vocaj was asked some questions about paying rent at 31 Loch Street.
56Question 103 was:
if you don’t pay rent at the house, how did you end up living at the house? Explain to me that please?
57This was translated as:
If you don’t pay the rent, how did you manage to be in that place? In that house? How did he [sic] manage to be in that place?
58Ms Vocaj answered as follows:
Because Tony offered me this…this Tony Romano offered me to sleep there for $1000. When the government gave me the house, I wanted to leave and he told me “No” he would let me go and live at my place at the end of this month
59However, this was translated as:
She mentioned the name. Tony Romano offered me and said don’t go away for at least a month. Don’t go away from here for at least a month. She mentioned the name Tony Romano[34]
[34] Exhibit D1, 23.
60Thus a mis-translated question elicited a mis-translated response. The initial problem was compounded.
61On a number of occasions, the interpreter prefaced an answer with ‘I’m hearing’ which suggests that the quality of the audio may have been compromised.[35]
[35] See, e.g., Exhibit D1, Answers 55, 59, 85 and 165.
62Senior Constable Dow-Philcox was cross examined at the committal hearing about whether he was satisfied with the quality of the interpreting during this interview. He conceded that ‘the phone wasn’t great’ and that there was some noise distortion.[36]
[36] Transcript of Proceedings, The Police v Vocaj & Viel (Magistrates’ Court of Victoria, N12701261, Magistrate Thomas, 15 June 2023) 7 [9-19].
63He said that he would have preferred an interpreter who was present at the station and that ‘we did attempt to get someone in person but that wasn’t available’.[37] He agreed that there was at least one part of the interview in which the interpreter was not interpreting verbatim but had made a comment.[38] This was a reference to the interpreter saying to police that Ms Vocaj was telling them a ‘life story’.[39]
[37] Ibid, 9 [2-4].
[38] Transcript of Proceedings, The Police v Vocaj & Viel (Magistrates’ Court of Victoria, N12701261, Magistrate Thomas, 15 June 2023) 12 [25-27].
[39] This was a reference to Exhibit D1, Q & A 174 and 175.
64The Magistrate asked Senior Constable Dow-Philcox if he was aware that interpreters often have a NAATI level. He said that he was not ‘until today’ (i.e. the day of the committal hearing). The officer said he was unable to ascertain anything about the level of training that the interpreter had.[40]
[40] Transcript of Proceedings, The Police v Vocaj & Viel (Magistrates’ Court of Victoria, N12701261, Magistrate Thomas, 15 June 2023) 14 [1-5].
65In re-examination, Senior Constable Dow-Philcox explained that he was not involved in securing the interpreter. He was not sure who had arranged the interpreter but thought it may have been [First Constable] ‘Ciaron’ [Connelly].[41]
[41] Ibid, 15 [1-4].
66As noted, each accused submits that the police did not comply with the Crimes Act provision governing the use of interpreters in the conduct of interviews with suspects. It is to that requirement that I now turn.
The Right to a ‘Competent’ Interpreter
67Section 464D of the Crimes Act provides:
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
68The section is located in Sub-Division 30A of the Crimes Act – ‘Custody and Investigation’.
69It is common ground that the duties to arrange for a competent interpreter and to defer questioning until such a person was present that are imposed by s 464D applied to the police officers in respect of all three of the interviews. The officers conducting the interviews had to comply with s 464D.
70It is submitted by both Mr Viel and Ms Vocaj that the police failed to comply with their duty to arrange for competent interpreters for the interviews. The prosecution, while accepting that the police did not comply with the Police Manual, and accepting that the quality of the interpreting was inadequate, does not concede this. It is therefore necessary for me to determine the question for each of the accused.
71There is no definition of ‘competent’ in the Crimes Act. The word is therefore to be given its conventional meaning: ‘capable or properly qualified’.[42] To meet the standard of ‘competence’ for the purposes of s 464D, I consider that an interpreter must be capable of accurately translating complex legal concepts (such as a ‘commercial quantity’).
[42] Macquarie Dictionary (online at 22 March 2024) ‘competent’ (def 1).
72In the case of DPP (Vic) v BB,[43] Bongiorno JA explained the role of a legal interpreter by reference to the High Court case of Gaio v R[44]:
The High Court in Gaio was, in effect, holding that the intervention of an interpreter between two persons who do not share a common language for the purpose of permitting them to communicate does not mean that one person’s report of the conversation is hearsay. The interpreter is, as it were, a translation device. But it is necessary to prove that the translation device is, in fact working. Accordingly, in order to make the witness’s evidence admissible, it is necessary to prove that the interpreter provided a faithful interpretation in both directions[45]
[43] [2010] VSCA 211 (‘BB’).
[44] (1960) 104 CLR 419.
[45] BB (n 43) [36].
73It is to be recalled that none of the police officers who conducted the interviews made any inquiry about the accreditation, training or qualifications of the three interpreters who were arranged. As it turned out, only the interpreter involved in one of the interviews was NAATI qualified and even then only with a provisional status.
74Further, the police officers did not comply with the Victoria Police Manual which unambiguously states that NAATI qualified professional interpreters are ‘required’ for formal interviews. There was no suggestion that there were no NAATI qualified Italian interpreters available to police. Only one would have been needed. Even if securing such an interpreter meant that the interviews had to be postponed, there is no suggestion that there was any particular urgency associated with the conduct of these interviews. In any event, that is precisely what s 464D required.
75I consider that the failure by police to secure a NAATI qualified professional interpreter, at least for a widely spoken language such as Italian, when interviewing a suspect in custody for a serious criminal offence such as cultivating a commercial quantity of a narcotic plant will generally be a breach of s 464D of the Crimes Act. However, on the facts of these two cases, that deficiency was compounded by three further difficulties.
76The first was that each of the interpreters used a telephone to interpret the interview. The interpreters were therefore deprived of the visual cues that may be important to understand what a person is saying.
77The second difficulty is related to the first. It is clear from listening to the interviews that the sound quality was at times quite poor.[46] Questions and answers had to be repeated at times.
[46] See [62] above.
78Finally, in the case of the second interview with Mr Viel, it is clear that the interpreter was distracted by other tasks she was performing while carrying out her important role of interpreting a police interview with a vulnerable suspect. The concession by officer Connelly that this was ‘pretty clearly unprofessional’ is difficult to quibble with.
79As discussed earlier, what emerges in the case of all three interviews upon which the Crown intends to rely is that there were material errors in translation in both directions – translation from the English questions asked by the police into Italian and also translations of the responses by the accused from Italian to English. On more than one occasion, the mis-translations flowed through to later questions and answers.
80I therefore conclude that all five of the police officers who conducted the interviews failed to arrange for a competent interpreter in breach of s 464D of the Crimes Act.
What are the Consequences of the Breaches of s 464D?
81It is necessary to consider the consequences of those breaches and, in particular, whether the prosecution should be prevented from relying on the admissions made by Mr Viel and Ms Vocaj at their respective trials.
82The starting point is to note that the Crimes Act itself is silent as to the consequences of a breach by police of the obligations imposed on investigating officials by Sub-Division 30A of the Act.
83In Pollard v The Queen,[47] McHugh J explained the significance of the rights conferred on suspects by Sub-Division 30A of the Crimes Act. Although his Honour was considering the rights conferred and obligations imposed by s 464C, the observations are equally applicable to those conferred by s 464D. His Honour held that given the section’s objectives:
the obtaining of a confession or admission in breach of that section should be regarded as raising a prima facie case of unfairness calling for the discretionary rejection of the confession or admission. Unless the prosecution discharges the evidentiary burden of displacing that prima facie case of unfairness, the trial judge should as a general rule reject the tender of the confession or admission as evidence[48]
[47] (1992) 176 CLR 177 (‘Pollard’).
[48] Pollard (n 47) [32].
84It is important to bear in mind that the underlying public policy effected by the provisions of Sub-Division 30A ‘transcend any question of unfairness to the particular accused’. As Deane J explained in the same case, whether an admission or confession obtained unlawfully by police should be excluded will require a court to strike a balance between competing public policies of ensuring those accused of serious crimes are tried on the basis of all available evidence and ensuring that those charged with investigating crimes themselves comply with the law.[49] Much will depend on whether the police are shown to have deliberately or recklessly breached their obligations.
[49] Ibid, [9].
85Pollard was a case that was decided under the general law. Such cases are now to be decided by an application of s 138 of the Evidence Act.
Section 138 of the Evidence Act
86Section 138 of the Act states that evidence that was obtained improperly or in contravention of an Australian law, or in consequence of an impropriety or 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.
87The section poses two questions:
(a) Was the evidence in question obtained improperly or in contravention of an Australian law? ; and, if so,
(b) Having regard to the matters listed in s 138(3), as well as any other relevant matters, does the desirability of admitting the evidence outweigh the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained?
88Where there is more than one item of evidence that is challenged under s 138, a court is generally required to apply the balancing test separately in respect of each item of evidence.[50] In the present case however, the contraventions of the law detailed earlier in these reasons are common to all of the three records of interview and they can be assessed together.
[50] Kadir v The Queen [2020] HCA 1 (‘Kadir’).
89I note for completeness that neither of the accused placed any reliance on s 138(2) of the Crimes Act and I do not need to consider it.
Section 138(1)(a) – Were the Interviews Improper or Unlawful?
90I have concluded that the police officers who conducted the interviews with Mr Viel and Ms Vocaj did so without complying with both the Victorian Police Manual and s 464D of the Crimes Act.
91The evidence was obtained both ‘in contravention of an Australian law’, being s 464D of the Crimes Act, and ‘improperly’[51], in that the Victorian Police Manual was not followed.
[51] Cf. R v Em [2003] NSWCCA 374.
92The defence having satisfied the Court of the first question, the records of interview are, to borrow the phrase used by the High Court in Kadir, ‘conditionally excluded’.[52] It is therefore for the prosecution to establish that, despite this, the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence of the admissions was obtained. That requires a consideration of the non-exhaustive list of matters in s 138(3).
[52] Kadir (n 50) [12].
Application of s 138(3) Factors
93I turn to consider the factors identified in s 138(3) in relation to the records of interview. Each factor calls for a finding to be made on the balance of probabilities.[53] While each of the factors must be considered, the Evidence Act provides no guidance as to the relative weighting to be attached to each. However, as the High Court has noted, the analysis in the judgment of Stephen and Aickin JJ in Bunning v Cross[54] ‘assists in understanding the significance of, and interplay between each of them’.[55]
[53] Evidence Act 2008 (Vic), s 142.
[54] (1978) 141 CLR 54, 74, 79-80 (‘Bunning v Cross’).
[55] Kadir (n 50) [15] by reference to Australian Law Reform Commission, Evidence, Report No 26 (Interim) (1985) 534-536 [964].
94Before considering the s 138(3) factors, it is important to acknowledge the underlying statutory purpose of s 138 of the Act. That purpose is best understood by reference to the joint judgement of Stephen and Aickin JJ in Bunning v Cross which provides the philosophical basis for the section.[56] Their Honours explained that the common law power to exclude improperly obtained evidence was not so much concerned with:
ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law[57]
[56] Ibid, [15] by reference to Australian Law Reform Commission, Evidence, Report No 26 (Interim) (1985) 534-536 [964].
[57] Bunning v Cross (n 54) 74.
95Noting the potential for misuse of ‘contemporary legislative powers’, Stephen and Aickin JJ drew attention to:
society’s right to insist that those who enforce the law themselves respect it, so that a citizen’s precious right to immunity from arbitrary and unlawful intrusion into the daily affairs of private life may remain unimpaired[58]
[58] Bunning v Cross (n 54) 75.
96Their Honours quoted with approval the warning by Barwick CJ that ‘convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price’.[59]
[59] See R v Ireland (1970) 126 CLR 321, 325.
97One of the most significant changes from the common law effected by s 138 of the Act is to reverse the onus of proof. A leading text describes the policy rationale for this change:
The ALRC viewed the common law onus of proof as leaning too heavily on the side of ‘crime control considerations’. It stated that it ran counter to the philosophy that those who infringe the law should be required to justify their conduct. The strategy of reversing the onus of proof is designed to operate as an agent for reform of police investigation methods: ‘things will change if the court has to find a positive reason for exercising its discretion in favour of admissibility’[60]
[60] Weinstein, Anderson, Marychurch and Roy, Uniform Evidence in Australia (LexisNexis, 3rd ed, 2020) 891 quoting from Australian Law Reform Commission, Evidence, Report No 26 (Interim) (1985) [964].
98I turn now to consider the factors listed in s 138(3).
Probative Value and Importance of Evidence in the Proceedings – ss 138(3)(a) & (b)
99It is common ground that the probative value of the evidence is high. Both Mr Viel and Ms Vocaj made admissions that are inculpatory in respect of the charges they face.
100However, the admissions are not the only evidence available to the prosecution in respect of the charges. As noted earlier in these reasons, there is considerable other evidence to link both Mr Viel and Ms Vocaj to the house at 31 Loch Street. That evidence consists of the observations made by police who conducted the raid and other evidence obtained by police in the course of their search of the house.
101This is not a case where exclusion of the impugned evidence will mean that the prosecution is left without a case.[61]
[61] Cf. Johnston (a Pseudonym) v The King [2023] VSCA 49 (‘Johnston’).
Nature of the Relevant Offences – s 138(3)(c)
102Cultivation of a commercial quantity of a narcotic plant is a serious criminal offence which attracts a maximum penalty of 25 years’ imprisonment. The case against each accused is that they cultivated nearly three times the commercial quantity.
Gravity of the Impropriety or Contravention – s 138(3)(d)
103In the case of Robinson v Woolworths Ltd,[62] Basten JA, with whom Barr J agreed, explained 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[63]
[62] [2005] NSWCCA 426.
[63] Ibid, [23].
104In relation to the first question posed by Basten JA, as McHugh J explained in the case of Pollard, ‘the rules which [the provision][64] enacts express the legislature’s judgment as to what is required if a confession or admission made by a person in custody is to be regarded as fairly obtained’[65]. Further, his Honour explained that ‘it is not for the courts to disregard a breach of [the provision] by analysing the circumstances of the case by reference to general notions of fairness’.[66]
[64] The Court in Pollard was concerned with a contravention of s 464C (access to legal representation). There is no reason, in my view to adopt a different approach to the equally important rights conferred by s 464D.
[65] Pollard (n 47) [35].
[66] Pollard (n 47) [35].
105Turning to the second question, having regard to the relative seniority of the police officers involved and the other evidence summarised earlier in these reasons, I conclude that the apparent failure of any of the five officers involved in conducting the interviews on the day in question to turn their minds to the question of the interpreters’ accreditation or qualifications is more than a blurring or minor contravention of the applicable standards; it was ‘quite inconsistent’ with those standards.[67]
[67] Cf. Johnston (n 61) [155]-[156].
106Even if the officers involved were unaware of the need to arrange a NAATI qualified interpreter, there were several indicators that the interpreters who they had organised were less than competent in the circumstances. These have been discussed earlier and include the unprofessional approach of one of the interpreters and it being obvious that the interpreters in each case were not providing verbatim translations. In the words of Bongiorno JA in the case of BB, the ‘translation devices’ were not working to full capacity.
107An aspect of the assessment of the gravity of improper conduct by police may be the impact on the suspect especially where the suspect is a vulnerable person.[68] Here, as noted earlier, both Mr Viel and Ms Vocaj were non-English speakers of advanced age who were non-citizens. They were entirely reliant on competent interpreters to ensure the investigation process was fair.
[68] R v Helmhout [2001) NSWCCA 372, [12] (‘Helmhout’).
108Where there is evidence that a particular failure by police to comply with the law is not isolated, this will tell in favour of exclusion.[69] A court may consider whether a failure by an officer is indicative of an inadequacy in police training generally.[70] This is consistent with the policy objectives underlying s 138.
[69] See R v Nguyen [2015] SASCFC 7, [39] (‘Nguyen’).
[70] Nguyen (n 69).
109This factor weighs in favour of exclusion.
Whether the Impropriety or Contravention was Deliberate or Reckless – s 138(3)(e)
110It was not submitted by either accused that the contraventions by the police were deliberate. However, both submitted that the police were reckless. This was contested by the prosecution.
111It is generally accepted that a finding of recklessness ‘is likely to be a strong factor against the exercise of the discretion to admit the evidence’.[71]
[71] Parker v Comptroller-General of Customs [2007] NSWCA 348, [65] (‘Parker v Comptroller-General of Customs).
112At common law, the gravity of the impropriety involved was of the utmost importance to the exercise of the discretion. In Bunning v Cross, Stephen and Aickin JJ held that, where the impropriety is reckless or deliberate, generally speaking the evidence should be excluded no matter its cogency.[72] A similar approach has been adopted under s 138 of the Act.[73]
[72] Bunning v Cross (n 54) 79. An exception might arise where the evidence is ‘both vital to conviction and is of a perishable or evanescent nature’ – see Bunning v Cross (n 54) 79.
[73] See, e.g., DPP v Marijancevic [2011] VSCA 355 (‘Marijancevic’).
113The leading Victorian case on classifying improper police conduct under s 138 is DPP v Marijancevic.[74] The Court of Appeal (Warren CJ, Buchanan and Redlich JJA) explained that:
At the least serious end of the spectrum of improper conduct would be that which did not involve any knowledge or realisation that the conduct was illegal and where no advantage or benefit was gained as a consequence of that impropriety. In the middle of the range would be conduct which was known to be improper but which was not undertaken for the purpose of gaining any advantage or benefit that would not have been obtained had the conduct been legal. At the most serious end of the range would be conduct which was known to be illegal and which was pursued for the purpose of obtaining a benefit or advantage that could not be obtained by lawful conduct[75]
[74] Ibid.
[75] Marijancevic (n 73) [67].
114The word “reckless” under s 138(3) has been held to involve as a minimum some advertence to the possibility of, or breach of, some obligation, duty or standard of propriety, or of some relevant Australian law or obligation and a conscious decision to proceed regardless or alternatively a “don’t care” attitude generally.[76]
[76] Helmhout (n 68) [33].
115Conduct will be reckless ‘if the officer had foresight that it might be illegal but proceeded with indifference as to whether that was so’.[77] Recklessness is not to be equated with negligence.[78]
[77] Marijancevic (n 73) [85].
[78] R v Gallagher [2015] NSWCCA 228, [52].
116The evidence from the committal hearing is that none of the five officers turned their minds to the need for a NAATI qualified interpreter to be arranged. That none of them was apparently aware of this requirement in the Victorian Police Manual is surprising to say the least. It suggests inadequate training in an important part of police work. The rights conferred by s 464D are hardly of recent origin.
117However, in the absence of some evidence that the officers adverted to the need for arranging a NAATI qualified interpreter, it is difficult to conclude that they were reckless as that term has been construed by the courts.
118This factor weighs in favour of admission.
119However, that does not mean that the evidence should be admitted. It is merely one matter to be considered along with all of the other considerations especially the gravity of the impropriety which as I have noted is high.
Whether the Impropriety or Contravention was Inconsistent with the Rights of a Person recognised by the International Covenant on Civil and Political Rights – s 138(3)(f)
120This paragraph requires consideration of whether the impropriety or contravention was inconsistent with the right of a person recognised by the International Covenant on Civil and Political Rights. The Covenant is reproduced in Schedule 2 of the Australian Human Rights Commission Act 1986 (Cth).
121The right to an interpreter in respect of criminal proceedings is recognised to a limited extent in the Covenant.[79]
[79] Australian Human Rights Commission Act 1986 (Cth), cls 3(a) and (f).
122The Supreme Court of Victoria has held that ‘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’.[80]
[80] DPP (Vic) v Natale [2018] VSC 339, [70].
123I consider that the conduct of the officers deprived each of the accused of the benefit of the rights conferred by the Covenant.
124This is therefore also a factor against admissibility.
Other Proceedings – s 138(3)(g)
125This paragraph requires the court to consider whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention. In Parker v Comptroller-General of Customs,[81] Basten JA considered that ‘if a police officer is likely to be disciplined for the impropriety, it may be thought that the ‘sanction’ of excluding the evidence is unnecessary’.[82] More recently, the High Court concluded that ‘where an officer is likely to be dealt with in another forum for his or her misconduct, the need to exclude evidence as a deterrent is reduced’.[83]
[81] Parker v Comptroller-General of Customs (n 71).
[82] Ibid, [64].
[83] Kadir (n 50) [16].
126In a case where there is no likelihood of proceedings being taken in respect of the impropriety, a court ‘should do more than merely observe that the powers were not properly exercised’.[84]
[84] ASIC v Sigalla (No 2) [2010] NSWSC 792, [127].
127The prosecution informed the court that ‘there are no proceedings which have been taken or are likely to be taken in relation to any alleged impropriety or contravention’.[85]
[85] Prosecution Submissions dated 5 March 2024, [22].
128This factor therefore weighs in favour of excluding the evidence.
The Difficulty of Obtaining the Evidence without Impropriety or Contravention of an Australia Law – s 138(3)(h)
129Where police conduct could have been undertaken lawfully without difficulty, that will be a consideration ‘that is capable of mitigating the gravity of the breach or contravention’. In such circumstances, the breach can properly be described as ‘technical’ or ‘negligent’.[86] If the breach by police was deliberate or reckless, ‘proof that it would have been difficult to obtain the evidence lawfully will ordinarily weigh against admission’.[87]
[86] Wu v The Queen [2020] VSCA 94, [96]; see also Kadir (n 50) [20].
[87] Kadir (n 50) [20].
130The evidence of the officers was that they had some difficulty arranging for an interpreter to be present at the station. It is unclear how extensively they tried.
131There was no suggestion by the prosecution that there was a lack of NAATI qualified Italian language interpreters in Victoria in 2022.
132In those circumstances, I consider that it would have been relatively easy for the interviews to have been conducted without contravening s 464D or the Victoria Police Manual.
Other Considerations
133The list in s 138(3) is not exclusive of other considerations. A further matter referred to by the courts is whether the impropriety or contravention by a police officer ‘is encouraged or tolerated by those in higher authority in the police force’.[88]
[88] Ridgeway v The Queen (1995) 184 CLR 19, 38.
134A related question may be whether the impropriety or contravention is isolated or part of a pattern. In Marijancevic, the Court of Appeal held that whether improper conduct by police is ‘widespread or entrenched’ is a matter which bears upon the gravity of the impropriety’.[89]
[89] Marijancevic (n 73) [65].
135In the present case, while there is no evidence of a widespread or entrenched practice of Victorian Police conducting formal interviews without using competent interpreters, nor can the present case be described as an isolated example of the practice. That much is clear from the evidence in this case which is that none of the five police officers attempted to source a NAATI qualified interpreter.
136This factor also weighs in favour of exclusion of the evidence in this case.
A Final Prosecution Submission
137Ms Ottrey for the prosecution submitted that the admitted deficiencies in the translations of the interviews should not result in the automatic exclusion of the records of interview. She submitted that a jury could watch and listen to the recorded interviews (in the ordinary way) and be provided with both the police transcripts from the depositions and the Oncall translations.
138The submission was that the jury could be directed by the trial judge to rely on the Oncall translations in relation to those parts of the interviews that were conducted in Italian and their own ears and eyes when it came to those parts of the interview that were conducted in English.
139I accept that this submission reflected a genuine desire to find a practical resolution of the problems occasioned by the poor quality translation of the interviews.
140Counsel for the accused submitted that this proposal would be unworkable and would confuse the jury no matter what directions they were given by the trial judge.
141I agree. A similar situation arose in the case of NT v The Queen.[90] In that case, the trial judge had provided the jury with a supplementary independently produced translation of an interview while listening to the record interview. The trial judge directed the jury that the written translation was part of the evidence that they must consider.
[90] [2012] VSCA 213.
142The jury were told that they were being asked ‘to rely on the typed transcript that you will have in front of you as being accurate rather than what you see and hear on the screen’.[91]
[91] Ibid, [26]
143On appeal, the Court of Appeal, having watched the recording, doubted very much that ‘the jury as a whole would be capable of following the written supplementary translation in detail whilst listening to the question and answer process on the DVD’.[92] The Court concluded that ‘the whole process was intrinsically flawed’.[93]
[92] [31].
[93] Ibid.
144More fundamentally, the Court of Appeal concluded from its detailed examination of the independent translation, that the inadequate translation of a number of the questions ‘materially affected the sense of a number of the answers’.[94]
[94] Ibid, [32].
145In my view the decision of the Court of Appeal in NT v The Queen is indistinguishable from the present case. To proceed in the manner advocated by the prosecution would lead to the same fundamental deficiencies.
Conclusion in Respect of s 138
146Weighing all of the relevant consideration under s 138(3), I have concluded that the prosecution have not established that the desirability of admitting the evidence of the admissions made during each of the interviews is not outweighed by the undesirability of admitting evidence of admissions obtained in the way in which this evidence was obtained.
147I therefore uphold the challenges made by the accused and exclude all three of the records of interview pursuant to s 138 of the Evidence Act.
148It is therefore unnecessary to consider whether, in the case of Mr Viel, the police also contravened s 464C of the Crimes Act.
149It is also unnecessary to consider whether the records of interview should be excluded under s 90 of the Evidence Act.
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