NT v R
[2012] VSCA 213
•6 September 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2011 0251 | |
| N T | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | NETTLE, REDLICH and OSBORN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 30 August 2012 |
| DATE OF JUDGMENT | 6 September 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 213 |
| JUDGMENT APPEALED FROM | DPP v [NT] (Unreported, County Court of Victoria, Judge Wilmoth, 17 September 2010) |
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CRIMINAL LAW – Appeal against conviction – Applicant convicted of abduction of a child under the age of 16, three counts of indecent acts with a child under 16 and two counts of rape – Whether trial judge misdirected jury in relation to belief in consent – Consideration of the effect of R v Getachew (2012) 286 ALR 196 and R v Worsnop (2010) 28 VR 187 – Whether a miscarriage of justice resulted from the admission into evidence of an inaccurate translation of the record of interview – Where the meaning of alleged admission of penetration relied upon by the Crown was materially affected by mistranslation – Mode of presentation of evidence – Mutual mistake by the defence and the Crown concerning accuracy of the translation – Appeal allowed.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr T Kassimatis with Ms S Leighfield | Victoria Legal Aid |
| For the Crown | Mr T Gyorffy SC | Mr C Hyland, Solicitor for Public Prosecutions |
NETTLE JA
REDLICH JA
OSBORN JA:
Following a trial before the County Court at Melbourne, the applicant was convicted of one charge of abduction of a child under the age of 16, three charges of indecent act with a child under 16 and two charges of digital rape. He was sentenced therefor to a total effective sentence of five years and six months’ imprisonment with a non-parole period of three years. He now seeks leave to appeal against conviction and sentence.
The facts
At the time of the alleged offences, the applicant was 39 years of age and the complainant was a 14 year old girl. At about 11.00 am on 6 September 2009 the applicant saw the complainant on or near the forecourt of a 7-Eleven petrol station/store in Sunshine. There were conflicting accounts of whether he or she initiated the contact, but it was common ground that she willingly got into his car with him (Charge 1, abduction of a child under 16).
He drove her towards Altona beach, stopping on the way to withdraw cash, and purchase condoms and a four bottle pack of Jim Beam bourbon and coke.
He then drove on to a second car park at Altona beach and, after he and she had consumed some of the bourbon and coke, he pulled down her upper clothing and sucked her nipples (Charge 5, indecent act with a child under 16). The complainant said that he also kissed her ears and neck despite her asking him to stop (Charge 6, indecent act with a child under 16).
After a while, the applicant and the complainant walked together on the beach before again returning to the car. The complainant said that the applicant then put his hand down her pants and placed his finger in her vagina (Charge 9, rape). She said that she told him to ‘get off’ and that he then put his hands on her breasts and kissed and sucked them (Charge 11, indecent act with a child under 16).
The complainant claimed that, at that point, she got out of the car and started running but later agreed to get back into the car on the understanding the applicant would drive her home. She claimed that she got out again on three further occasions, but on each occasion was persuaded to get back in. Ultimately, the applicant drove her to her friend’s house, to which she asked to be driven, but the complainant said that, on the way, he once again inserted his fingers into her vagina (Charge 13, rape).
Defence Case
The applicant is of Vietnamese origin and speaks limited English. When interviewed by police, the questions asked by police and the answers given by the applicant were translated from English to Vietnamese and from Vietnamese to English by a translator appointed by the police. The interview was video recorded and reduced to a DVD which was shown to the jury in court and given to them to consider as part of their deliberations. Apart from the complainant’s VATE evidence, the DVD of the applicant’s record of the interview constituted the principal part of the Crown case. According to the translation of the interview, which can be seen and heard on the DVD, the applicant admitted the sexual acts alleged but claimed that he believed the applicant was an adult and that she consented. He said that she had encouraged his sexual advances.
Grounds of appeal against conviction
The applicant advances seven grounds of appeal, as follows:
1) A miscarriage of justice resulted from the judge misdirecting the jury, in the manner which was held to be erroneous in Worsnop v R[1] that it was open to find that the accused believed the complainant was consenting but was still aware that she might not be consenting.
[1][2010] 28 VR 187, 196 [35].
2) A miscarriage of justice resulted from the judge’s summary of the evidence relevant to Charges 9 and 13, in that the judge identified evidence as being relevant to Charge 9 which related to two separate incidents and identified as being relevant to Charge 13 a portion of the VATE evidence which had previously been identified as being relevant to Charge 9.
3) A miscarriage of justice resulted from the introduction into evidence of the whole of the applicant’s record of interview in circumstances where:
i. The DVD video recording of the interview shown to the jury did not contain an accurate interpretation of the applicant’s answers; and
ii. There was a lack of uniformity between the applicant’s answers contained in the DVD and the transcript which the jury were provided with and directed to rely upon; and
iii. There was ambiguity as to which admissions made by the applicant, if any, matched with the conduct alleged in the charges.
4) The judge erred by failing to direct the jury, in accordance with Burns v The Queen,[2] that before they could rely on any alleged admissions in the record of interview, they would need to be satisfied that the alleged admissions were made and that they were in substance truthful.
[2](1975) 132 CLR 258.
5) A miscarriage of justice resulted from the failure the judge’s failure to give any direction as to the use to be made of the complainant’s prior inconsistent statements.
6) The guilty verdicts on Charges 9 and 11 are unsafe and unsatisfactory by reason of being inconsistent with the acquittals entered on Charges 2, 3, 4, 7, 8 and 12, in circumstances where: (i) The applicant made no admission to those charges in his record of interview; (ii) The conduct was not conceded through puttage in the special hearing; (iii) The evidence of previous representation (complaint to complainant’s friend) was equally applicable to all charges; and (iv) The jury were misdirected as to the evidence relevant to Charges 9 and Charge 13 (and, resultantly, Charge 11).
7) A miscarriage of justice was occasioned by a combination of all of the above factors resulting in an unfair trial for the applicant.
We propose to deal first with Ground 1 and then with Grounds 2 and 3 together. In view of the conclusions to which we have come on those grounds, it is unnecessary to deal with the remaining points.
Ground 1 – Worsnop
The thrust of Ground 1 was that a miscarriage of justice had occurred by reason of the judge directing the jury, in terms which were held in Worsnop v R[3] to be erroneous, that:
Even if you find that the accused did have such a belief [that the complainant was consenting] you will still need to decide whether the prosecution has proved this fourth element.[4] You might find that the accused believed the complainant was consenting but still be satisfied beyond reasonable doubt that the accused was aware of the possibility that she was not consenting.
[3](2010) 28 VR 187.
[4]That the accused was aware that the complainant was not consenting or might not be consenting or did not give any thought to whether the complainant was not or might not be consenting.
Counsel for the applicant began his argument in support of Ground 1 with a submission that so to direct the jury ran directly counter to the conclusion of this court in Worsnop, that:
Once a jury accepts the existence of a belief in consent, the Crown could not establish either that the accused was aware that the victim was not consenting or else that the victim might not be consenting.[5]
[5](2010) 28 VR 187, 196 [35].
He contended that there was material difference between an ‘assertion’ or ‘evidence’ that the accused believed that the complainant was consenting and a finding by the jury to that effect. Once the jury accepts that the accused had such a belief, it was submitted that the Crown could no longer establish that the accused had the necessary mens rea. The problem with this submission, however, is that, in R v Getachew,[6] the High Court plainly rejected that argument and the reasoning in Worsnop in favour of the view which had previously obtained that under the statutory regime[7] an accused may have a belief that a complainant is consenting and yet still be aware that she might not be consenting.
[6](2012) 286 ALR 196.
[7]Section 37AA and s 38 of the Crimes Act 1958.
In a joint judgment of French CJ, Hayne, Crennan, Kiefel and Bell JJ, the court stated that:
Reference to an accused holding the belief that the complainant was consenting invites close attention to what was the accused’s state of mind. It was said[8] in the explanatory memorandum accompanying the bill for the 2007 Act that ‘belief in consent and awareness of the possibility of an absence of consent are not mutually exclusive’. So much may be accepted if ‘belief in consent’ is treated as encompassing a state of mind where the accused accepts that it is possible that the complainant might not be consenting. Whether such a state of mind is properly described as a ‘belief in consent’ need not be explored. On the face of it, evidence of a state of mind that did not exclude the possibility that the complainant might not be consenting appears not to engage at all with, let alone negate, the central statutory requirement that the accused was aware that the complainant was not or might not be consenting.
For present purposes, it is enough to notice that, if an accused asserted, or gave evidence at trial, that he or she thought or ‘believed’ the complainant was consenting, the prosecution may yet demonstrate to the requisite standard either that the accused was aware that the complainant might not be consenting or that the asserted belief was not held. It is to be recalled that, since the 2007 Act, the fault element of rape has been identified as the accused being aware that the complainant was not or might not be consenting or the accused not giving any thought to whether the complainant was not or might not be consenting. The reference to an accused’s awareness that the complainant might not be consenting is, of course, important. An accused’s belief that the complainant may have been consenting, even probably was consenting, is no answer to a charge of rape. It is no answer because each of those forms of belief demonstrates that the accused was aware that the complainant might not be consenting or, at least, did not turn his or her mind to whether the complainant might not be consenting.[9]
[8]Victoria, Legislative Assembly, Crimes Amendment (Rape) Bill 2007, explanatory memorandum at 4.
[9](2012) 286 ALR 196, 203 [26]–[27] (underlining added).
Faced with that statement of the law, counsel for the applicant retreated to a proposition that, even if belief in consent and awareness that a complainant might not be consenting are not mutually exclusive, the judge had done insufficient to bring home to the minds of the jury that beliefs may vary in their extent and intensity across a spectrum, ranging from acceptance of the existence of a mere possibility that the complainant was consenting through to persuasion to the point of certainty. In counsel’s submission, it was incumbent on the judge to direct the jury that, if the Crown did not exclude the reasonable possibility that the applicant believed that the complainant was consenting, then, in order to convict, the Crown would have to persuade the jury that the nature and strength of the applicant’s belief was such that he was still aware of the possibility that the complainant might not be consenting.
Directions along those lines may well have been desirable to provide the jury with further assistance. We note that, since the Victorian Criminal Charge Book was revised following the High Court’s decision in Getachew, it has included the following suggested directions concerning an accused’s belief in consent:
There is a difference between a belief in consent which the accused relies upon and an awareness that the complainant was not or might not be consenting, which is what this element is about. That is because there are different strengths of belief.
·At one end of the scale, I might have a belief as to something and the strength of that belief leaves no possibility for error.
·At the other end of the scale, I can have a belief as to something while being aware that I might be mistaken. For example, I might believe that I parked my car on the fourth level of a car-park, but I’m aware
that it might be on the third level. I then go to the fourth level to find my car, even though I’m aware it might not be there.
In order to prove this element of awareness, the prosecution must prove to you that the accused did not have such a strong belief that the complainant was consenting that he did not think of the possibility that she might not be consenting. In determining the strength of the accused’s belief in consent, you should consider the matters I just mentioned that are relevant to whether the belief was held. This includes any evidence of the belief, whether the accused was aware that [describe relevant section 36 or 37AAA(d) or (e) circumstances], whether the accused took steps to find out whether the complainant was consenting and any other relevant factors.[10]
[10]At 7.3.1.1.2B Charge: Rape (Post – 1/1/08 offence and trial) last update 23 May 2012.
We consider it desirable that a jury be told the following. There is a difference between the state of mind of belief in consent and awareness that the complainant might not be consenting. It is for the prosecution to establish that the accused did not have a belief in consent that creates a reasonable doubt that he was aware that the complainant was not or might not be consenting. Whether the belief does create a doubt will depend upon the jury’s findings of fact as to the nature and extent of that belief.
That said, however, before Worsnop, juries were commonly charged concerning an accused’s belief in consent in exactly the terms employed by the judge in this case and, until Worsnop, no one supposed that those directions were inadequate. Now that Getachew has reversed Wornsop, so that in effect we have returned to the status quo ante, we are not persuaded that it was necessary for the judge to give any more directions on the matter than she did.
In the circumstances of this case, we consider that it would have been clear to the jury that, ultimately, what they needed to decide was whether the Crown had persuaded them beyond reasonable doubt that the applicant was aware that the complainant was not consenting or might not be consenting. It follows that we reject Ground 1.
It would be remiss of us, however, if we did not in passing make reference in a more general sense to ss 36, 37, 37AA and 37AAA of the Crimes Act as amended. These provisions have created much difficulty for trial judges and this Court for a very lengthy period. We do not take issue with the policy which underlies the provisions but, unfortunately, however, some of the concepts utilised including those which involve subtle differences between the state of mind of belief or awareness, the interrelationship between these concepts and their degree of prescription have made these provisions almost unworkable in the context of jury trials. The problems raised by this legislation can only be addressed by urgent and wholesale amendment.
Grounds 2 and 3 – Did the trial miscarry by reason of the way in which the record of interview was put into evidence?
Ground 3 of the application for leave to appeal contends that the manner of introduction into evidence of the applicant’s record of interview resulted in a miscarriage of justice. It has its background in the following circumstances.
As has been noticed, the applicant is of Vietnamese origin and speaks only limited English. He was interviewed by investigating police officers with the assistance of an interpreter on 25 September 2009.
The principal investigator described the interview process as follows:
I needed a Vietnamese interpreter for the interview. It was a very long and difficult process dealing – going through interpretation at the time. I – even though I was getting all the information from the interpreter, I don’t know if she was translating every word to me at the time, which is quite important. At the end of the interview after about pushing two hours, she said that she had to go home and – so I had to try and get her to stay for the rest of the interview.
A video recording was made of the interview but that recording was not entirely satisfactory. The investigating officer said in evidence:
During the interview the defendant spoke over the top of the translator a lot. So even though, in the positioning of the seats, [the translator’s] voice was quite hard to hear in the actual disc of the interview (sic).
Prior to the trial, the defence obtained an independent translation of the applicant’s answers given in the course of the interview. Legal Aid funding was not at that stage available for a translation of the questions. The independent translation of the applicant’s answers demonstrated that there were material deficiencies and inaccuracies in the oral translation of the answers recorded at the time of interview on a DVD. It was agreed between the prosecution and defence that evidence of the interview would be presented at trial in part by supplying to the jury the revised independent translation of the answers in written form. In turn, it was agreed the DVD would be played to the jury while they had the written translation in their hands and were able to read the applicant’s answers as the interview progressed.
We pause to note that it may be inferred that this course was agreed to by the defence in order to place before the jury an account of the events in issue which was to a substantial extent exculpatory of the applicant.
The trial judge made clear to the jury that the written translation of the answers was not to be treated simply as an aid to the understanding and recollection of the evidence contained in the DVD, but was itself part of the evidence which they must consider. The translation was in a different category from the transcript of the oral evidence with which they were supplied in the course of the trial. The jury were told 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’.
Subsequent to the filing of the application for leave to appeal in this matter, the applicant’s solicitors have also obtained an independent translation of the questions asked by the interpreter in the course of the police interview. This demonstrates pervasive simplification and serial omissions from the terms of the questions which the investigating officer asked. As the matter was argued before us, the applicant’s submissions can be distilled into the following complaints:
(a) the manner in which the evidence was presented to the jury was inherently confusing and unsatisfactory;
(b) the errors in translation of the questions asked during the interview:
· materially affect the meaning of purported admissions;
· materially affect the sense of responsiveness, coherence and accurate detail contained in the applicant’s answers; and
(c) the consent to the procedure adopted was premised on a fundamental misconception.
The written case for the applicant raises a further preliminary point relating to the admission of the record of interview into evidence. At the commencement of the record of interview, the investigating officer asks an extended series of questions[11] seeking to elicit acknowledgment of the applicant’s right to silence. No satisfactory response is received. Nor does a reading of the interview as a whole give rise to any confidence the applicant understood he had a right to silence. Indeed, aspects of his answers suggest he believed he was under a compulsion to speak to police. Nevertheless, no application was made to exclude the record of interview from evidence either on the basis on non-compliance with s 464A(3) of the Crimes Act 1958 or on the basis of unfairness. To the contrary, evidence of the interview was adduced in an agreed form.
[11]Questions 4, 11, 12, 13, 14, 15 and 16.
As the High Court has recently affirmed, where an evidentiary course is adopted at trial on behalf of an applicant as a result of a deliberate forensic choice an appeal court will not ordinarily allow an applicant to complain of that course thereafter.[12]
[12]Patel v The Queen (Unreported, High Court of Australia, per French CJ, Hayne, Kiefel and Bell JJ, 24 August 2012), [114]; Nudd v The Queen (2006) ALJR 614, 618 [9].
The real substance of Ground 3 is concerned with the manner in which the evidence of the record of interview was presented to the jury and the meaning of that evidence.
A viewing of the DVD demonstrates that the initial complaint made concerning the intelligibility of the evidence is a powerful one. We doubt 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. It is true that they had the opportunity to do so in the jury room and not simply during the course of the trial but, for reasons we will elaborate below by reference to example, the whole process was very unsatisfactory. More fundamentally, however, we are satisfied that the evidence itself was intrinsically flawed.
The revised translation demonstrates that errors in the initial translation of the questions asked in the interview materially affect the sense of a number of the answers. We will give two examples.
The first exemplifies questions of collateral detail which might realistically be thought to bear on the overall credibility of the complainant’s account of what occurred in relation to the initial meeting between the complainant and the applicant. It was heard on the DVD by the jury in the following terms:
Okay. Well, it’s been alleged that she was actually walking through the petrol station, on the edge of it, and you’ve driven up next to her and asked – and offered her a lift then.[13]
[13]Emphasis added.
The question was in fact translated as follows:
She, well, she is said to go past the petrol station and on the outer part. And you asked if she wanted a lift.
The proposition that the applicant drove up next to the complainant before offering her a lift was simply not put to the applicant in translation. In turn, the answer ‘Yes’ conveyed a different meaning to the jury than that contained in the applicant’s actual answer.
The second example is a passage comprising the only alleged admission by the applicant of penetration in respect of an alleged count of rape (and, in the alternative, sexual penetration of a child under 16). The admission went not only to a critical element of the offence but may also have been regarded as significant by the jury in their judgment concerning the complainant’s overall credibility.
Question 167 was initially asked as follows:
Okay. I’ll just go further in the allegations. Like I’ve told you, you don’t have to answer these questions. I’m just going to put to you what’s alleged that you’ve – that has – has occurred. Okay. Once you’ve got back into the car again, it’s then she’s then said that you’ve then put your hands down the front of her pants again, and that you’ve then been fingering again, which means put your fingers into her vagina. And then she pushes you off again and tells you to stop.[14]
[14]Emphasis added.
This question was then translated in the interview as follows:
I’ve already said this: you don’t have to answer these questions. I just want to put to you what’s alleged. That is all. So it means after she got back into the car, you then put your hands into her vagina again. She then pushed you off and told you to stop.
The answer given, as provided to the jury in the written transcript, was as follows:
She let me. She agreed to give it to me. She agreed to do it. She let it happen. I did it. I touched it. That is it. Like it. It is over and I took her back. When a message was sent … she gave me the phone number. Because I rang but she did not respond. I sent her a message and she asked me who I was. She did not know who I was in the phone. It is still there in the phone. It is still in the car.
The significant admissions that ‘she let me’ and ‘I did it’ are dependent for content upon the terms of the question. The interpreter did not translate to the applicant accurately the propositions ‘you’ve then put your hands down the front of her pants again, and … you’ve then been fingering again, which means put your fingers into her vagina’. The jury understood that this was what the applicant agreed had happened. Conversely, the statement ‘you then put your hands into her vagina again’ which the interpreter put to the applicant is materially less clear than the question which was in fact asked. The applicant admitted elsewhere that he touched the complainant’s thigh and groin and certainty as to what exactly he admitted was a significant evidentiary consideration.
The trial proceeded on the basis that the applicant had admitted penetrating the complainant’s vagina with his fingers and the judge ultimately charged the jury specifically on the basis that this conduct was admitted by the applicant. In turn the applicant was convicted of rape (Charge 13).
As Ground 2 alleges, the judge’s charge also conflated aspects of the evidence relating to Charges 9 and 13. Whatever else may have followed from this fact, the problems with Question 167 directly permeate the case relating to Charge 9 due to this confusion. The applicant was also convicted of the prior rape alleged in Charge 9.
Question 167 also exemplifies the complaint about the manner in which evidence was presented to the jury. What the jury heard by way of answer on the DVD was:
She let me do it. She sat still and I touched her. I touched her and then took her home and then she gave me SMS, and I sent her an SMS, and she said she didn’t know who I was. It’s still in the phone.
Both the version of the question and the answer given by the interpreter during the recorded interview involved substantial simplification and omissions. This process of simplification and omission not only affected the sense of the outcome, but left the jury with short oral answers to listen to while attempting to read materially more complex written answers.
It is not necessary to further exemplify the question and answer process for the purpose of these reasons. In our view, the deficiencies in the translation of the questions asked during the interview are such that they:
(a) materially affect the degree to which it can be said that the applicant answered the questions asked by the investigator at all;
(b) materially affect the meaning of admissions which the jury must have regarded as central to the case in respect of Charge 13 and may have had regard to as significant in assessing the complainant’s credibility overall;
(c) materially affect admissions as to the course of the events within which the alleged offending occurred; and
(d) materially affect the matrix of evidence by reference to which the jury would have assessed the applicant’s answers as responsive or non-responsive, coherent or incoherent, and lacking or containing persuasive detail. All of these matters bore on the evidentiary weight of the overall account he gave in the interview.
There is a further aspect of these deficiencies which goes to the basis on which the evidence was received. Evidence of answers obtained through an interpreter at interview is hearsay unless the interpreter is called. As Fullagher J said in Gaio v The Queen[15] ‘while evidence by A that B has made a confession to A is admissible, evidence by A that B has narrated to A a confession by C to B is not admissible.’ In consequence, as Bongiorno JA put it in Azizi v The Queen[16] ‘… for evidence of a conversation with another person through an interpreter when neither speaks the other’s language to be admissible there must be evidence from the interpreter that he or she was able to and did interpret the conversation accurately.’[17]
[15](1960) 104 CLR 419, 426.
[16][2012] VSCA 205, [84].
[17]See also DPP (Vic) v BB (2010) 29 VR 110.
The parties may, of course, agree that an interpretation is accurate and consent to hearsay evidence of it being adduced.
In the present case, however, the decision made by both the prosecutor and defence counsel to agree to permit the hearsay evidence to go to the jury in the way in which in fact occurred was premised upon a belief that the investigator’s questions were translated accurately by the interpreter to the applicant in the course of the interview.
Once it is concluded that there was a material mutual mistake in this respect, then the forensic choice made by defence counsel in these circumstances to allow matters to proceed as they did cannot be a bar to an assessment of the fairness of what in fact occurred. What in fact occurred was fundamentally deficient because:
(a) the failure to translate the questions asked of the applicant truly and accurately materially affected the apparent meaning of the applicant’s answers; and
(b) the evidence was presented to the jury in a format which made the comprehension of the applicant’s answers very difficult in any event.
In our view, it is plain that there has been a miscarriage of justice. Senior counsel for the respondent did not ultimately contend otherwise and freely conceded that what occurred must be a cause for serious concern.
Because the miscarriage went to a fundamental aspect of the evidentiary basis of the Crown case, the matter must be remitted for re-trial.
Conclusion
For those reasons, we shall allow the application for leave to appeal, treat the appeal as instituted and heard instanter and allowed and quash the convictions entered below. We shall order that a new trial be had.
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