Frank v Police

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
FRANK v POLICE
[2007] SASC 288
Judgment of The Honourable Justice Sulan
2 August 2007
ABORIGINALS - OTHER MATTERS
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - PROCEDURE ON SENTENCING - OTHER MATTERS
Appeal against sentence - appellant did not speak English and required an interpreter - appellant pleaded guilty - proceedings were adjourned on several occasions due to the absence of an interpreter - Magistrate ultimately sentenced in the absence of an interpreter - Magistrate did not deliver full reasons for sentence due to appellant's lack of comprehension of English - whether there is a right to an interpreter - consequences of failure to provide an interpreter - whether Magistrate should have proceeded without an interpreter in the circumstances - whether failure of Magistrate to give reasons in the circumstances is an error of law - held, defendants have a right to an interpreter - held, where an interpreter cannot be provided, proceedings should be stayed - held, proceeding to sentence was an error of law by the Magistrate - appeal allowed.
Criminal Law Consolidation Act 1935 s 20(3), s 85(3), s 269K; Criminal Law (Sentencing) Act 1988 s 9(1), s 9(2), s18A; Justices Act 1979 (NT) s 106, s 110; Summary Offences Act 1953 s 6(1), s 15(1)(a), referred to.
Dietrich v The Queen (1992) 177 CLR 292, applied.
Ebatarinja & Anor v Deland & Ors (1998) 194 CLR 444; Lawson v Lee (1978) 19 SASR 442; R v Becker (2005) 91 SASR 498; R v Scobie (2003) 85 SASR 77, discussed.
Ferguson v Reid [2005] SASC 240; Gray v Police (2003) 85 SASR 1; Mobasa Pty Ltd v Nikic (1987) 89 FLR 411; Papps v Police (2000) 77 SASR 210; Pearce v The Queen (1998) 194 CLR 610; R v Symonds [1999] SASC 217; Shrubsole v Rodriguez (1978) 18 SASR 233; Szewezuk v Police [2001] SASC 223; The Attorney-General v Tichy (1982) 30 SASR 84, considered.

FRANK v POLICE
[2007] SASC 288
Magistrates Appeal

SULAN J: This appeal raises a number of important issues. Is a person who is unable to understand the English language, as of right, entitled to have present an interpreter during the proceedings in which that person is a defendant? What are the consequences of a failure to provide an interpreter? Should a magistrate proceed without an interpreter, in circumstances where the Court has been frustrated on a number of occasions by the failure of an interpreter to attend when requested? If there is a right to the entitlement of an interpreter, can a defendant waive that right? Is a failure of a magistrate to give reasons for his decision because he is aware that the defendant cannot understand the language an error of law?
Background
The appellant, Winmati Frank, is an Aboriginal who resides at Watinuma in South Australia. Watinuma is near Fregon and is situated on the Anangu Pitjantjatjara Lands in the north-west of South Australia.
On 10 May 2007, the appellant appeared before a magistrate sitting at Marla, which is north-west of Port Augusta. The appellant had been in custody at Port Augusta since his arrest on 19 October 2006. The appellant pleaded guilty to offences which were the subject of two complaints and one information.
The first complaint related to offences allegedly committed on 31 December 2005. The information related to offences allegedly committed on 18 September 2006. The second complaint related to offences allegedly committed on 24 September 2006.
The appellant pleaded guilty to the following:
·As to the first complaint, four counts of assaulting police in the execution of their duty, on 31 December 2005, contrary to s 6(1) of the Summary Offences Act 1953, and one count of damaging property, contrary to s 85(3) of the Criminal Law Consolidation Act 1935 (“the first complaint”).
·As to the information, three counts of aggravated assault, contrary to s 20(3) of the Criminal Law Consolidation Act 1935, and one count of carrying an offensive weapon, contrary to s 15(1)(a) of the Summary Offences Act 1953; all the offences allegedly committed on 18 September 2006 at Watinuma (“the information”).
·As to the second complaint, one count of resisting a police officer in the execution of his duty, contrary to s 6(1) of the Summary Offences Act 1953, and one count of carrying an offensive weapon, (a knife), contrary to s 15(1)(a) of the Summary Offences Act 1953, each offence allegedly committed on 24 September 2006 at Pipalyatjara (“the second complaint”).
Particulars relating to the first complaint were that at about 10 a.m. on 31 December 2005, two police officers attended at the Watinuma community where they had been called to a house occupied by the appellant. When the officers arrived, the appellant was standing in the yard. He picked up rocks and threw them towards the two officers. The officers sought further assistance. Two other officers arrived. As they were driving their vehicle towards the house, the appellant jumped the fence and threw a large rock in the direction of the police vehicle, causing the windscreen to shatter.
Police retreated, re-grouped and moved towards the house with shields. The appellant threw a rock at one of the officers, and the police again retreated. As they were driving their motor vehicle away, the appellant ran towards them and threw a bottle through the front driver’s side window, causing it to smash. No officer was physically injured.
Reinforcements from the STAR force were requested. When they arrived, the appellant was on the roof. He threw a number of rocks at police and then commenced to stab himself with a pair of scissors. Officers managed to subdue him and he was arrested.
The facts relating to the information were that on 18 September 2006, an officer who knew the appellant became aware that there was a disturbance at the Watinuma store. He requested assistance, and two other officers arrived. They approached the appellant’s home to arrest him. The appellant ran at the police officers with a knife and threatened to kill one of them.
As to the second complaint, on Sunday, 24 September 2006 at Pipalyatjara, two police officers attempted to arrest the appellant. He resisted arrest and then pulled a knife from his trousers and stabbed himself three times in the abdomen. He was arrested, treated and air-lifted to the Alice Springs Hospital.
The appellant appeared in the Port Augusta Magistrates Court on 15 November 2006 and was represented by a solicitor from the Aboriginal Legal Rights Movement (“ALRM”). No application for bail was made.
On 19 November 2006, the appellant appeared, again represented by a solicitor from ALRM. On that occasion an application for bail was made, which was refused.
On 5 December 2006, the appellant appeared, represented by a solicitor from the Aboriginal Legal Rights Movement (“ALRM”). At that time, the Court ordered a psychiatric report to explore issues concerning the appellant’s fitness to plead and mental competence to commit the offences.
On 14 December 2006, the Clinical Director of Forensic Mental Health Services, Kenneth O’Brien, interviewed the appellant at Port Augusta Prison. At that time, no interpreter was present, although one had been requested. Dr O’Brien was unable to proceed without some assistance. He relied on another prisoner to interpret.
Dr O’Brien reported that the interview situation was less than ideal. That is an understatement. The failure to have an interpreter available to a psychiatrist who is requested to provide a report to the Court, is unacceptable. It is incumbent upon those who have the responsibility to provide interpreting services to provide an interpreter if a court has ordered an investigation pursuant to s 269K of the Criminal Law Consolidation Act 1935 of a defendant’s mental capacity to stand trial. It is not appropriate that, in order to carry out his duties, a psychiatrist is required to use another prisoner to interpret highly sensitive and personal information. Apart from the fact that a fellow prisoner is untrained and, therefore, it cannot be certain whether the interpretation is accurate, it is of concern that a fellow inmate is interpreting personal information and advice which is subject to medical confidentiality and from which an opinion is to be provided to the Court.
Nevertheless, Dr O’Brien appeared to have no other alternative, and he did his best in the circumstances to report to the Court. He concluded that the appellant did not suffer from a mental illness. Dr O’Brien did not believe that the appellant was mentally impaired. As to the question of the appellant’s fitness to plead or stand trial, Dr O’Brien reported that the appellant’s knowledge of court proceedings was limited and that the presence of an interpreter for him during court proceedings was essential. Dr O’Brien’s conclusions were that the appellant did not have available to him a mental impairment defence.
On balance, it was Dr O’Brien’s opinion that the appellant was probably fit to plead, but his legal representatives and the Court needed to be satisfied that he was properly educated about the Court process. Furthermore, adequate interpreting services should be available for him at the appropriate time.
The solicitor who had been assigned by the Legal Services Commission, at the request of ALRM, appeared for the appellant at Port Augusta Magistrates Court on 19 February 2007. No interpreter was present. The matter was adjourned to allow for instructions to be obtained by the solicitor and for negotiations to occur. The Court requested that an interpreter be present at the next hearing on 14 March 2007.
The solicitor requested an interpreter through the Interpreting and Translating Centre to attend at Port Augusta Prison on 23 February 2007 to enable her to obtain instructions. When she attended, no interpreter was present. She attempted to talk to the appellant with the assistance of a sentenced prisoner. She said that, although the sentenced prisoner appeared to be able to speak Pitjantjatjara, she was not confident that he was properly interpreting, as his command of the English language was not satisfactory.
It is understandable that, by necessity, the solicitor attempted to make the best of an unsatisfactory situation. Nevertheless, I consider that the use of another prisoner to interpret, in order for a solicitor to advise a client and to obtain instructions from a client, is highly undesirable.
The relationship of a solicitor and client is a special relationship. Questions of confidentiality and legal professional privilege may arise. A client must be able to speak to his or her solicitor freely. An interpreter provided by the interpreting service is aware of the importance of confidentiality. The use of another prisoner to interpret does not ensure that the protections normally afforded to clients when consulting their solicitors is available.
The State has a responsibility to ensure that persons who are charged with offences understand the nature of the charge, are able to instruct their legal representatives and are able meaningfully to obtain advice from their legal representatives. The fact that an interpreter was not available and that a prisoner was asked to interpret are matters of grave concern.
The solicitor obtained instructions and commenced discussions with the prosecuting authority. Whilst the discussions were continuing, the appellant appeared at Port Augusta Magistrates Court on 14 March 2007. Notwithstanding that an interpreter had been requested, one was not present.
The solicitor was continuing to encounter problems in engaging an interpreter to assist her in order for her to obtain instructions from the appellant. On two occasions, interpreters were requested but did not turn up.
On 26 April 2007, the appellant appeared at Court, but there was no interpreter present. He was remanded until 4 May 2007, and an interpreter was again requested.
On 31 April 2007, a colleague of the solicitor attended at the gaol to obtain further instructions. On that occasion an interpreter was present.
On 4 May 2007, no interpreter was present in Court.
The Magistrate expressed concern at the length of time the appellant had been in custody. The solicitor foreshadowed that the appellant would apply for bail. However, the Magistrate intimated that he would not grant bail. No application was made. On that day, the prosecutor agreed to amend a number of the charges, and indicated that, insofar as the prosecution were concerned, the time the appellant had spent in custody was sufficient in the circumstances.
The Magistrate remanded the appellant to the Marla sittings of the Magistrates Court on 10 May 2007. A Pitjantjatjara interpreter had been requested for the Lands circuit for that week, so it was anticipated that there would be an interpreter present at Marla.
The events of 10 May 2007
On 10 May 2007, the appellant appeared at the Marla Magistrates Court. No interpreter was present. The appellant was distressed. The solicitor was only able to communicate with the appellant at a very basic and superficial level. The appellant was able to instruct the solicitor that he wanted the matter finalised. He conveyed to the solicitor that, if he was sentenced to gaol, he would harm himself.
Although the situation was unsatisfactory, the solicitor concluded it was in the appellant’s interest to finalise the matter. She considered that, having regard to the police attitude to sentence, and the indication that had been made by the Magistrate that the time the appellant had spent in custody may be sufficient, and, given the history of the matter, it was in the best interests of the appellant to plead guilty. The appellant pleaded guilty to the charges.
The solicitor made submissions. She informed the Court that the appellant was 26 years of age and had been on remand since 19 October 2006. She referred the Magistrate to the psychiatric report of Dr O’Brien.
As to the offences committed in December 2005, she informed the Magistrate that the appellant had been involved in a family argument, and that he believed that members of the family were concocting untruthful stories about him. When the police arrived, he believed that they had been called to take him away. He ran at the police intending to scare them away. He did not intend to physically harm them. He accepted that his actions would have put them in fear. He admitted he had a knife in his hand. Eventually, he ran away.
There were no further difficulties between the police and the appellant until 18 September 2006. Again, when the police arrived, the appellant believed his family members had called them to take him away. He was scared that he would be taken away and so he threw a rock. He admitted the allegations of the police that he had approached them with a knife and threatened them.
On 24 September 2006 the appellant was at Pipalyatjara attending a football carnival. The police approached him. Again, he did not want to be arrested. That was the occasion on which he used a knife to stab himself.
The solicitor submitted to the Magistrate that, if he was considering sentencing the appellant to an immediate custodial sentence, then she requested the preparation of a pre-sentence report. If a Pitjantjatjara interpreter could attend with the person assigned to prepare the pre-sentence report, further information may come to light that would be of assistance to the Court in sentencing the appellant.
The Magistrate said that if a pre-sentence report was requested, he would order it. The Magistrate intimated that any further time to which he would sentence the appellant to remain in custody would be about the same time as it would take to prepare the pre-sentence report. It is agreed by counsel before me that the preparation of a pre-sentence report would take approximately four weeks.
The solicitor indicated to the Magistrate that, having regard to his intimation, she no longer pursued her application for a pre-sentence report.
The Magistrate then sentenced the appellant. Prior to sentencing him, the Magistrate said that he would not deliver sentencing remarks as he was doubtful that the appellant would understand them anyway, there being no interpreter to translate into Pitjantjatjara. The Magistrate said:
Mr Frank, I am not sure how much of what I am going to say you understand. It is very unfortunate that we have not got an interpreter here this week who can assist you but these three times you have got cranky with the police, it was very lucky nobody got badly hurt. You cannot go around dealing with the police like this. They are going to get hurt, you are going to get hurt and the whole thing is achieving nothing. You have been in gaol for quite awhile now and I will impose sentencing which will have you released fairly soon.
I am happy to expand my reasons but I don’t know there is a lot of point doing so at this point in time because I doubt your ability to fully understand what I am telling you, which is very unfortunate.
He then imposed one sentence in respect of the offences of 31 December 2005 of nine months’ imprisonment. As to the offences committed on 18 December 2006, he imposed one sentence of nine months’ imprisonment, to be served cumulatively on the first sentence. As to the offences committed on 24 September 2006 he imposed one sentence and imprisoned the appellant for a period of two months, to be served cumulatively on the other sentences. That resulted in a total sentence of twenty months’ imprisonment, which was ordered to commence on 19 October 2006. The Magistrate fixed a non-parole period of nine months’ imprisonment.
The appeal
The grounds of appeal are that the sentence imposed in all the circumstances was manifestly excessive; that the Learned Sentencing Magistrate erred in proceeding to deal with the matters in the absence of an Aboriginal Pitjantjatjara interpreter; that the Learned Sentencing Magistrate failed to provide the appellant with sentencing remarks at the time of sentence; and that the Learned Sentencing Magistrate erred in ordering that all terms of imprisonment be served cumulatively.
The appellant seeks orders that the appeal be allowed and that he be re‑sentenced.
Proceeding in the absence of an interpreter
I have outlined the difficulty confronting the Court and defence solicitor over several months and the many attempts to secure the attendance of an interpreter. The same difficulty re-occurred on the appeal. After travelling to Port Augusta to hear the appeal and, having taken extensive steps to arrange an interpreter to be present, no interpreter arrived. Attempts were made by officers of the Court to locate the interpreter, but those attempts were unsuccessful.
I was informed by counsel that the appellant was due to be released on parole two days from the hearing date. Counsel urged me to proceed with the appeal. Although an appeal is by way of a re-hearing, there were no factual disputes and the appeal was limited to legal submissions. Although it is preferable that an interpreter be present, I determined to proceed, as to have delayed the hearing might have further prejudiced the appellant.
In Ebatarinja v Deland,[1] the High Court considered whether a writ of prohibition should issue against a Magistrate who was conducting committal proceedings which had commenced against a defendant who had been charged with murder. The defendant was a deaf mute who was unable to understand the charge against him. He was unable to communicate with his legal advisers. He was unable to understand the Court proceedings. The Court ordered that prohibition issue directed to the Magistrate prohibiting the further hearing of the committal proceedings against the appellant. The case turned upon the requirement in ss 106 and 110 of the Justices Act 1979 (NT) that a defendant be capable of understanding what has been put against him as a condition precedent to being committed for trial. In a joint judgment, Gaudron, McHugh, Gummow, Hayne and Callaghan JJ said:
On a trial for a criminal offence, it is well established that the defendant should not only be physically present but should also be able to understand the proceedings and the nature of the evidence against him or her. In Kunnath v The State, the Judicial Committee of the Privy Council said:
“It is an essential principle of the criminal law that a trial for an indictable offence should be conducted in the presence of the defendant. As their Lordships have already recorded, the basis of this principle is not simply that there should be corporeal presence but that the defendant, by reason of his presence, should be able to understand the proceedings and decide what witnesses he wishes to call, whether or not to give evidence and, if so, upon what matters relevant to the case against him”.[2] (Citations omitted)
[1] (1998) 194 CLR 444.
[2] Ebatarinja & Anor v Deland& Ors (1998) 194 CLR 444, 454.

In R v Scobie,[3] Gray J concluded that there is an obligation to ensure that a competent and reliable interpreter is available to assist in court at all times. He referred to recommendations 99 and 100 of the Royal Commission into Aboriginal Deaths in Custody which presented its final report in 1991. It is important to reiterate those recommendations. Gray J said:
The importance of competent interpreters was recognised by recommendations 99 and 100:
That legislation in all jurisdictions should provide that where an Aboriginal defendant appears before a court and there is doubt as to whether the person has the ability to fully understand proceedings in the English language and is fully able to express himself or herself in the English language, the court be obliged to satisfy itself that the person has that ability. Where there is doubt or reservations as to these matters proceedings should not continue until a competent interpreter is provided to the person without cost to the person.
That governments should take more positive steps to recruit and train Aboriginal people as court staff and interpreters in locations where significant numbers of Aboriginal people appear before the courts.[4]
[3] (2003) 85 SASR 77.
[4] R v Scobie (2003) 85 SASR 77, 109.
Gray J referred to a recent initiative of the Courts Administration Authority to employ a full-time interpreter to attend at the Magistrates Court and District Court at Port Augusta on a full-time basis for a month. He observed that it had been anecdotally reported as having been extremely successful.[5]
[5] R v Scobie (2003) 85 SASR 77, 109.
It appears that the successful initiative has not been continued and the situation in respect of the provision of Pitjantjatjara interpreters has reverted to an unacceptable situation. Gray J referred to a report from the Justice Strategy Unit, which had been formed under the Attorney-General’s portfolio, which had reported in 2003 that access and availability of interpreters to support Aboriginal defendants was a matter of concern. The report stated:
The need for further initiatives has been acknowledged by the Justice Strategy Unit:
The matter of access and availability of interpreters to support Aboriginal defendants in the criminal justice system continues to be an area of concern.
The Justice Portfolio is currently engaged in two projects around improving availability and access to accredited interpreters. One aspect refers specifically to the need for court interpreters and the second relates to a “whole of government” initiative examining the requirements of key portfolios in the development and employment of Indigenous Language and Cultural Specialists in various Aboriginal languages.[6]
[6] R v Scobie (2003) 85 SASR 77, 109-10.
It appears little has changed. If anything, the position has become worse. A fundamental right of a person to have available an interpreter so that the person can understand the proceedings has been denied the appellant. It appears that the problem is ongoing and deep-seated. As can be observed in this case, there were numerous attempts to obtain the services of an interpreter. It seems all attempts failed. The appellant was denied a fair hearing. He was deprived of a basic right.
I also observe that the same problems of lack of interpreting services were experienced by Dr O’Brien. As previously observed that the situation which he confronted is of grave concern. It is the responsibility of the interpreting service to ensure that interpreting services are available when required.
The defence solicitor was unable to obtain instructions because of the failure of the administration to provide adequate and reliable interpreting services. This makes the task of defence counsel almost impossible. The solicitor was not able to advise, nor able to obtain adequate instructions. When a defendant is receiving legal aid, there is a responsibility upon those who administer legal aid to ensure that clients can understand and give meaningful instructions.
The failure to give adequate reasons
Counsel for the appellant submitted that there was a failure to deliver adequate reasons for the imposition of the sentence, and that failure amounts to an error of law. Counsel submitted that once an error of law has been identified, then the sentencing discretion has miscarried and this Court should re-sentence the appellant.
Counsel for the respondent conceded that there had been a failure by the Magistrate to give adequate reasons. She submitted that whether such failure is an error of law will depend on the circumstances of each case. She submitted that if this Court determined that the appellant is to be re-sentenced, then the Court should conclude that the sentence was appropriate in all the circumstances and should not interfere with the sentence.
The ground of appeal relating to the failure of the Magistrate to give adequate reasons is related to the ground which complains that the Magistrate erred in proceeding in the absence of an interpreter. The Magistrate said that the reason he did not expand on his sentencing remarks was because he was of the view that the appellant would not be able to understand what was said.
The Criminal Law (Sentencing) Act 1988 requires a court:
… upon sentencing a defendant, to state its reasons for imposing a sentence and to explain the legal effect of a sentence and, where appropriate, the consequences of non-compliance with any order of the court.[7]
[7] Criminal Law (Sentencing) Act 1988 s 9(1).
Further, the Act provides:
… the validity of a sentence is not affected by non-compliance or insufficient compliance with the requirement to give reasons.[8]
It follows that the failure to give adequate reasons does not, of itself, invalidate the sentence.
[8] Criminal Law (Sentencing) Act 1988 s 9(2).
Nevertheless, it is incumbent on a sentencing court to state its reasons for imposing a sentence. A failure to do so is an error.
In R v Becker,[9] the Court of Criminal Appeal (Gray, Sulan and Layton JJ) observed that a sentencing Judge is required to deliver sentencing remarks orally to a defendant. The Judge does not have to deal with every matter, but the remarks must enable an appellate court to identify and understand the reasoning of the Judge so that that court may properly be able to perform its duty.
[9] (2005) 91 SASR 498; see also Szewezuk v Police [2001] SASC 223; Shrubsole v Rodriguez (1978) 18 SASR 233.
The purpose of requiring a sentencing Judge to give reasons is to inform the defendant upon what facts the court has relied in passing sentence, to what aggravating and mitigating factors the court has had regard, and to identify the weight the court has placed upon those factors, including the personal circumstances of the defendant. The court should indicate whether the nature of the offending is such that greater emphasis is placed on general and personal deterrence when weighed against personal circumstances, and to what weight the court has given rehabilitation in the circumstances. The court should indicate whether the defendant’s age has influenced the sentence and what weight has been given to a person’s past record. The purpose of reasons is also to enable an appellate court to understand the process gone through by the sentencing court when determining sentence, and to ensure that the sentencing process is transparent.
If the principle of general deterrence is to have any effect, then it is assumed that those who read the sentencing remarks can understand the process of the court’s reasoning. The process must be transparent in order that justice may be seen to be done.[10]
[10] See Papps v Police (2000) 77 SASR 210, 219 .
In Lawson v Lee,[11] the Full Court (Hogarth ACJ, Bright and King JJ) observed that magistrates ought to give reasons for their decisions so that any court reviewing the decision will be able to understand the process of reasoning which led to a conclusion.
[11] (1978) 19 SASR 442; see also Mobasa Pty Ltd v Nikic (1987) 89 FLR 411, 413-4.
It is not incumbent upon a magistrate to mention every factor to which the Court has had regard. Sentencing is not an exercise of completing a checklist and then mentioning every item on the list in remarks. The extent of remarks will depend upon the circumstances of each case. Nevertheless, it is a requirement that a magistrate in passing sentence give sufficient reasons to enable a defendant to understand the facts upon which the magistrate has relied, the extent to which the magistrate has relied on prior antecedents, any reduction on account of a plea of guilty and the extent to which the magistrate has had regard to the current personal circumstances of the defendant.
The Magistrate did not give reasons. He indicated that he would give reasons, if required. That is not sufficient. The reason expressed by the Magistrate for not giving reasons was because the appellant was unable to understand. The Magistrate was in a difficult situation, as no interpreter had attended. That situation should not have been reached, for reasons which appear later.
On that ground, the sentence of the Magistrate should be set aside.
What should have occurred
The Magistrate and defence counsel were in a difficult position. If the matter were again adjourned, the appellant would have been in custody for more than six months, with the prospects of further delay. An alternative might have been to release the appellant on bail, in the hope that an interpreter would be at Court on the adjourned date. This may have been a forlorn hope, as many attempts to follow that course had failed in the past.
The Magistrate had intimated that he regarded the appellant as unreliable, and he considered that if he released him on bail it was unlikely that he would turn up. The Magistrate considered that the appellant was not to be bailed. Therefore, the appellant was likely to spend further time in custody to the point at which he may have been in custody awaiting sentence for a longer period than any custodial sentence he was likely to receive. This is an intolerable position for the Court.
The Magistrate chose to proceed and the defence solicitor agreed, both being aware of the position of the appellant. Counsel did not have adequate instructions and was aware that her client could not understand the proceedings. In those circumstances, the matter should not have proceeded.
The correct course was for the Magistrate to stay the proceedings until an interpreter could be present. The Court has an inherent power to stay criminal proceedings which will result in an unfair trial. A right to a fair trial, or a fair hearing in the case of sentencing, is a central pillar of our criminal justice system.[12]
[12] See Dietrich v The Queen (1992) 177 CLR 292, 298 per Mason CJ and McHugh J.
In Dietrich’s case, the High Court recognised that the Court has power to prevent an abuse of process or the prosecution of a criminal proceeding which will result in a trial which is unfair. Deane J observed that if the funds and facilities necessary to enable a fair trial to take place are withheld, then Courts are obliged to take steps to ensure that their processes are not abused to produce a miscarriage of justice. He said:
If, for example, available interpreter facilities, which were essential to enable the fair trial of an unrepresented person who could neither speak nor understand English, were withheld by the Government, a trial Judge would be entitled and obliged to postpone or stay the trial and an appellate court, in the absence of extraordinary circumstances, be entitled and obliged to quash any conviction entered after such an inherently unfair trial. Again, if the Government failed to provide the ordinary facilities necessary to enable an accused held in custody to attend his trial, the trial Judge would be entitled and obliged to postpone or stay the trial and, in the absence of such a stay or postponement, an appellate court would be entitled and obliged to quash any conviction.[13]
[13] Dietrich v The Queen (1992) 177 CLR 292, 301.
It is a fundamental right which must be afforded to all defendants who face criminal prosecutions to have an interpreter who can explain the nature of the proceedings and ensure that a defendant understands what is being said in court. It is not uncommon during counsels’ submissions on sentence that a defendant will correct counsels’ submissions, or instruct counsel to add something that has not been put to the Court which is of relevance. A failure to afford a defendant an interpreter, in circumstances where the defendant cannot understand the proceedings, will render proceedings unfair. If the Court is unable to provide an interpreter and the defendant is, therefore, unable to receive a fair hearing, the Court possesses the power to stay the proceedings.[14]
[14] Gray v Police (2003) 85 SASR 1; Ferguson v Reid [2005] SASC 240.
The Magistrate should have ordered a stay of proceedings until he could be assured that a Pitjantjatjara interpreter would be present. The Magistrate should have released the appellant on bail.
Failure to obtain a pre-sentence report
It is unfortunate that the Magistrate, having intimated that the custody part of the sentence that he would impose would be no longer than the time taken to obtain a pre-sentence report, then imposed a further ten weeks’ imprisonment. The appellant’s solicitor withdrew her application for a pre‑sentence report on the understanding that the appellant would be released from custody within a short period. As it transpired, that did not occur. It is agreed that usually a pre-sentence report is provided within four weeks. A pre-sentence report may have been of considerable value. It is clear that the solicitor had limited instructions. More information about the appellant and his family situation would have assisted the Court. The failure to order a pre-sentence report in this case was an error.
Cumulative sentences
The Magistrate determined to pass cumulative sentences for each group of offences committed on different days. Where there are separate incursions into criminal conduct, it is appropriate to order that sentences be cumulative. If a number of offences arise out of one event or the same facts, then it is appropriate to order concurrent sentences. There is no inflexible rule which determines whether sentences are to be concurrent or cumulative.[15]
[15] A-G v Tichy (1982) 30 SASR 84.
Ultimately, the correct approach will depend upon the circumstances of each case. Subject to any statutory requirements, in imposing sentence the Court must consider an appropriate sentence for each offence, then consider questions of cumulation or concurrence, as well as finally considering totality.[16] Since the enactment of s 18A of the Criminal Law (Sentencing) Act 1988, a sentencing court has a discretion to pass one overall sentence. In arriving at one sentence, the sentencing Judge is required to have regard to the appropriate sentence for each offence to arrive at an adequate punishment for the offending.[17] Whatever approach the sentencing court adopts, the final sentence must reflect an adequate punishment for a defendant’s overall conduct.
[16] See Pearce v The Queen (1998) 194 CLR 610, 624.
[17] R v Symonds [1999] SASC 217.
The orders to be made
The sentences must be set aside. I am required to re-sentence the appellant. I am faced with the dilemma that the appellant has now served that part of the sentence which he was required to serve in custody. The appellant’s non-parole period expired on 18 July 2007. I am informed by his counsel that he remains in custody until suitable accommodation can be found for him. If no permanent arrangements can be made, he will be released into temporary accommodation on or before 17 August 2007.
For the reasons I have given, I am unable to re-sentence the appellant in the absence of an interpreter. I adjourn the matter so that a date can be set to sentence the appellant at a time and place when an interpreter can be present. If an interpreter is not available within a reasonable time, I will order a stay of the proceedings.
The order of the Court is that the sentence of the Magistrate be set aside and the re-sentencing of the appellant be adjourned until an interpreter is available, at which time I will re-sentence the appellant.

[2007] SASC 288

2 August 2007

Key Legal Topics

Areas of Law

Criminal Law

Legal Concepts

Appeal

Jurisdiction

Interpreter Rights

Procedural Fairness