Juma v The Queen

[2000] HCATrans 529

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B15 of 2000

B e t w e e n -

SHUKURU JUMA

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 24 NOVEMBER 2000, AT 10.38 AM

Copyright in the High Court of Australia

MR A.J. RAFTER:   May it please the Court, I appear for the applicant. (instructed by Mr Juma)

MR M.J. BYRNE, QC:   May it please the Court, I appear for the Crown. (instructed by Director of Public Prosecutions (Queensland))

GUMMOW J:   Yes, Mr Rafter.  Can we say this to you:  the Court is aware of the circumstances in which you have come into this case and is appreciative of them.  If you need any further time to consider the matter and to consult with your client, the Court would be prepared to remove this application and put it at the end of today’s list.  Would that be of any assistance to you.

MR RAFTER:   Your Honour, I have had an adequate opportunity to do that already.  I do not believe I need any further time, so I am happy to proceed with the application now.

GUMMOW J:   Yes, very well.

MR RAFTER:   Your Honours, principally the argument for the applicant depends on the fairly extensive written summary of argument that has been prepared by or for him, and that is with your Honours’ papers.  The arguments advanced are about four in number, the principal one of which relates to the unfairness of the trial by reason of the fact the applicant claims he did not properly understand proceedings, since his principal language is Swahili.  He did not have the advantage of an interpreter and he says that he uses an English/Swahili Dictionary and he did not have a proper understanding of the trial.

The Court of Appeal dealt with this principally in the judgment of Mr Justice Chesterman at page 18 of his Honour’s judgment at paragraph 55.  His Honour of course acknowledged that a verdict could not stand if an accused person did not have a proper understanding of the proceedings, but the decision of the court unanimously was that the applicant did have such an understanding.  The argument here depends upon the point that the applicant did not, in fact, understand the trial properly and that the Court of Appeal was thereby in error.  Now, there are obviously difficulties in the court concluding that, but, nevertheless, it is contended for the applicant it is a matter that warrants a grant of special leave in the interests of justice in this individual case.

The applicant had not, in fact, had an interpreter at the trial.  He gave evidence he had difficulties understanding the proceedings.  That made him vulnerable to suggestion and to agreement when he did not properly understand the questions that he was being asked.  He did, of course, address the Court of Appeal but there, too, he laboured under some difficulties and those are acknowledged in the judgments.  In respect of that point, I rely on the ‑ ‑ ‑

KIRBY J:   The judges in the Court of Appeal - and I think two of them expressly stated that the applicant was able to make himself clear in the submissions to that court.

MR RAFTER:   That is right, your Honour.

KIRBY J:   He comes from Tanzania, is that correct, which is a country in which the second language is English and which has newspapers in the English language and many people speak English.  So we have a combination of a person from a country which has English, it uses English, commonly, and a person who has been able to make himself reasonably clear to the Court of Appeal.  Now, in these circumstances, why would this Court reach a conclusion that he did not understand the trial to the point that the trial has miscarried?

MR RAFTER:   Just in relation to one of the matters that your Honour raised:  the applicant himself says that English is, in fact, his fourth language, although it might be the second language of the country itself; it is his fourth language and he does not have a good appreciation of it.  Ordinarily, of course ‑ ‑ ‑

GUMMOW J:   He had been living in this country for some time, presumably?

MR RAFTER:   For a number of years.  I think about five years in total, your Honour.  Your Honour, I rely upon the contents of the written summary of argument.

GUMMOW J:   Now that was the first of your four points?

MR RAFTER:   That is right.  The second major point is the unsafe and unsatisfactory ground.  It is not usually a promising one for a grant of special leave but, in the circumstances of this case ‑ ‑ ‑

GUMMOW J:   It does happen from time to time.

MR RAFTER:   It has happened occasionally and the submission is, in the interest of justice, in this particular case the Court ought to examine the judgment of the Court of Appeal and its conclusion that the verdict of the jury was open to it.  There were some conflicts in the evidence.  They are extensively explained in the written summary of argument.  I will not repeat them.  There would be no point in being repetitive.  In those circumstances this is an appropriate vehicle to look at the case again.          He also raises questions about the intoxication of the principal Crown witness and questions of coaching of Crown witnesses.

GUMMOW J:   Who was that?

MR RAFTER:   The female witness Epseg, your Honour.

GUMMOW J:   Yes, Epseg.

MR RAFTER:   There was no material at trial or before the Court of Appeal in respect of that, but the applicant claims that that was so.  Perhaps those are points that are more properly ventilated in the event of there being a retrial consequent upon a successful appeal.  As I have indicated, I rely on all of the matters contained in the applicant’s written summary of argument and those are my submissions, your Honour.

GUMMOW J:   So there are three points?

MR RAFTER:   Well the intoxication of the witness and the assertion of coaching by a Crown witness could perhaps be bundled together as one.

GUMMOW J:   They are really related.

MR RAFTER:   They are related points, yes, that is right.

KIRBY J:   Would you just remind me, did the applicant at the trial ask for an adjournment on the basis that he could not understand what was going on?

MR RAFTER:   No, your Honour, he did not ask for that.

GUMMOW J:   He had counsel, I think ‑ ‑ ‑

MR RAFTER:   He was represented by counsel.  He did, your Honour, yes.

KIRBY J:   Well, did his counsel say that he could not understand the applicant and that he thought in fairness to the applicant that the applicant should have an adjournment and have an interpreter, so that he could understand the course of the trial?

MR RAFTER:   The counsel did not say that, but the applicant indicates that he insisted to his counsel that he did want an interpreter.

KIRBY J:   Well, would one not have expected counsel of reasonable competence to bring that to the notice of the court as an aspect of his duty, if it had been a problem, if he had experienced any difficulty in communicating.  This is a matter that came up in the case of Nguyen and East, you might understand, where no point was ever raised before the trial judge and the assumption was that it was not raised because nobody saw a problem, until it was belatedly asserted in an appellate court.

MR RAFTER:   Yes.  Well, the same applies here, except the applicant says he insisted to his counsel he required the assistance of an interpreter.  His counsel did not follow through on that.  The answer to your Honour’s question:  yes, one would expect counsel of reasonable competence to act upon those instructions if it was considered necessary.  That is all I can say about that.

GUMMOW J:   Yes, thank you.

MR RAFTER:   Thank you, your Honour.

GUMMOW J:   Yes, thank you.  We will hear from Mr Byrne.

MR BYRNE:   May your Honours please.  The first point regarding an interpreter was, as my learned friend, Mr Rafter, properly points out, dealt with at length by the Court of Appeal.

GUMMOW J:   At page 139?

MR BYRNE:   Yes, directly to paragraph 57 of the judgment of Mr Justice Chesterman, where his Honour points out that because of concerns that the court itself felt, they had:

arranged for an interpreter to attend by telephone from Sydney.

The applicant was advised of that and given the:

opportunity to address the court in Swahili utilising the service of the interpreter.  He declined.

The court noted that they had the opportunity of observing him during the appeal as did the trial judge and the jury, both in his evidence and through the video-recorded record of interview, which was of some length.  All members of the Court of Appeal took the view that he was sufficiently proficient in English so that there was no miscarriage of justice.  The reference is paragraph 8 of Mr Justice Derrington’s judgment and I note also that Mr Justice Pincus agreed with the judgment of Justice Chesterman.

The second point regarding the unsafe and unsatisfactory aspect of the verdict again:  it could not be properly said, in my respectful submission, that the Court of Appeal did other than fully itself analyse the evidence.  They appreciated and point out in their judgments the inconsistencies.  However, having themselves analyse those inconsistencies and the difficulties, have concluded that the verdict returned was one which was open to a reasonable jury properly instructed on the evidence.  There is no point of principle arising on that aspect and, in my submission, there is no point of particular justice, given the analysis by the Court of Appeal.

GUMMOW J:   Now, what do you say about the Epseg witness?

MR BYRNE:   The jury were directed by the trial judge that it was essential that the core of her evidence be accepted beyond reasonable doubt if they were to convict the accused person.  The Court of Appeal analysed her evidence, as I have said, and pointed out that there were other witnesses who would probably have left the jury with the impression that she was not telling entirely the whole truth, and that is why it was left to the jury in those terms, that is was the core of her evidence, namely that she witnessed both the applicant and his co-accused, actually stabbing the deceased.  On analysis, the Court of Appeal said that that direction, together with the verdict of the jury, was sufficient in the terms of the trial.

GUMMOW J:   Yes.  Now, I should have asked you the first question really:  do you oppose the application for extension of time?  This is out of time.

MR BYRNE:   No, I do not, your Honour.

GUMMOW J:   Yes, thank you.

MR BYRNE:   Again, Mr Rafter has properly pointed out that the matters which are raised in the written outline, although they are not formally draft grounds of appeal, namely intoxication and coaching, are not properly matters which can be ventilated before this Court.  I do not, unless the Court wishes, seek further submissions on those aspects.

KIRBY J:   Does the applicant have an interpreter there today or not?

MR BYRNE:   Can I just check with Mr Rafter on that point, your Honour.  I am informed that the Court has arranged for an interpreter again by telephone line to be available if necessary, your Honour.

KIRBY J:   But Mr Rafter apparently felt that he had received sufficient instructions to put the matter before the Court today, so that at the trial, in the Court of Appeal and in this Court, those who have been representing the

applicant at trial and in this Court and the applicant himself in the Court of Appeal have been able to communicate sufficiently that the judges involved feel that he has been able to make his points.

MR BYRNE:   That must be the inevitable conclusion, your Honour.

KIRBY J:   Yes.  I see Justice Gummow points out that he has been here for 10 years; I thought it was five years.  This is at page 150 of the application book.

GUMMOW J:   In the judgment in the Court of Appeal.  Anyhow, it is certainly for a number of years.

KIRBY J:   I mean, one must be very sensitive to this question, because being able to get by at the corner grocery store is different to being able to understand the nuances of a trial, and therefore courts are very properly sensitive to the issue of ensuring that people who face a very serious charge, such as the applicant did, understand what is going on in its detail and not just in its broad dimension, but there are a number of indications in this case that rather suggest that this is a belated application which, if it had had any substance, would have been made at the trial itself.

MR BYRNE:   May I say, with respect, your Honour, that the contrary conclusion would almost be perverse, given the factors which your Honour Justice Kirby has pointed out, together with the fact that he himself gave evidence without the assistance of an interpreter and also argued his own appeal, declining the services of an available interpreter.

GUMMOW J:   Yes, thank you, Mr Byrne.  Anything in reply, Mr Rafter?

MR RAFTER:   No, your Honours.

GUMMOW J:   Thank you.

The principal issue in this application which requires, and has received, an order for extension of time is whether the trial of the applicant miscarried because the applicant did not sufficiently understand the trial at which he was convicted of murder.  The Court of Appeal of Queensland properly accepted that if the applicant did not sufficiently understand the trial process his conviction could not stand.

The applicant’s first language is Swahili.  He claims that English is his fourth language.  We are not convinced that this point is made good.  The applicant came from Tanzania, a country where English is widely spoken.  He had lived in Australia for a number of years before his conviction and no application was made for an interpreter by the applicant or his counsel at the trial.  The judges of the Court of Appeal who heard the applicant in person on the appeal said that they could understand his submissions.

In these circumstances, there is no merit on this point sufficient to cast doubt on the conviction and to warrant the grant of special leave.  None of the other arguments advanced by Mr Rafter for the applicant attracts leave.  Accordingly, special leave is refused.

AT 10.54 AM THE MATTER WAS CONCLUDED