R v D Bastos De Frietas - [2012] QDC 354

DISTRICT COURT OF QUEENSLAND

CITATION:

The Queen v D Bastos De Frietas [2012] QDC 354

PARTIES:

The Queen (Respondent)

v

D Bastos De Frietas (Applicant)

FILE NO:

49/2012

PROCEEDING:

Pre-trial application by defendant to exclude videotaped police interview with defendant.

ORIGINATING COURT:

District Court, Southport

DELIVERED ON:

11 September 2012

DELIVERED AT:

Southport

HEARING DATES:

6 & 13 August, 2012

JUDGE:

Judge C F Wall QC

RULING:

Interview excluded.

LEGISLATION:

Police Powers & Responsibilities Act 2000, Section 433
Police Powers & Responsibilities Regulation 2000, Sections 33, 39

CASE:

Queen v Cho [2001] QCA 196 FAA

CATCHWORDS:

CRIME – EVIDENCE – application to exclude videotaped police interview with defendant.
Where defendant’s first language was Portuguese – whether he could speak with “reasonable fluency in English” – absence of an interpreter – whether interpreter should have been provided – consideration of what is meant by “reasonable fluency in English – whether defendant capable of understanding interview process and all questions asked of him.

COUNSEL:

Mr M. Katsinas for the applicant

Mr M.T. Whitebread for the respondent

SOLICITORS:

Torres Lawyers for the applicant

Office of the Director of Public Prosecutions for the respondent

POSTSCRIPT:

On 3 December, 2012 after a trial at Southport the applicant was found guilty of counts 2 & 4 (rape) and common assault (on count 3). At the commencement of the trial he pleaded guilty to count 1 (AOBH).

HIS HONOUR: The defendant seeks the exclusion from evidence of a videotaped police interview with him, conducted on the 2nd of July 2011 at the Southport Police Station, Exhibit 6. The typed record of the interview is Exhibit 3 and extends for 82 pages until 11.28 p.m. The interview commenced at 9.36 p.m.

The defence contends that the defendant's participation in the interview was not voluntary, or alternatively the interview should be excluded in the exercise of the discretion on the basis that it would be unfair to the defendant to admit it because it was conducted in English, which is not the defendant's native language. He is a Brazilian and his first language is Portuguese.

The charges against the defendant are two counts of rape and two counts of assault occasioning bodily harm. The complainant is the same for each count.

The facts are summarised in the Crown's written submissions, Exhibit 2, at paragraphs 3-16, as follows:

The defendant has been indicted with [sic] two counts of rape and two counts of assault occasioning bodily harm. The offending is alleged to have occurred during the early hours of the morning of Friday 1 July 2011. The complainant, T.T. (22 years), is a Welsh national who was visiting Australia.

The defendant is a Brazilian national who was aged 24 years at the time of the offending, and working in Australia.

Earlier in the evening of Thursday 30 June 2011 the complainant had been to a nightclub at Surfers Paradise and elsewhere with friends. After midnight on 1 July 2011, she attended the Vanity Nightclub located at Surfers Paradise with friends.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] QDC 354
Decision Date: 11 September 2012

CaseChat Overview and Summary

The case of R v D Bastos De Frietas involved the defendant, D Bastos De Frietas, who was facing criminal charges. The primary dispute was whether the videotaped police interview of the defendant should be excluded from evidence, given that he was questioned in English, which was not his first language. The defendant claimed that he did not possess reasonable fluency in English, and as such, he should have had an interpreter present during the interview to ensure his comprehension of the questions and the interview process. The case was heard in a court of law in Australia.

The central legal issues the court had to decide were whether the defendant's level of English proficiency was sufficient to understand the interview process and questions without the aid of an interpreter, and if the absence of an interpreter was a breach of the defendant's rights. The court was required to examine the concept of "reasonable fluency in English" and assess whether the defendant could adequately understand and respond to the questions posed during the interview.

The court concluded that the defendant's level of English was not sufficient to be considered "reasonable fluency" as he could not fully comprehend the interview process and the questions asked without an interpreter. The court held that the absence of an interpreter was a breach of the defendant's rights and that the videotaped police interview should be excluded from evidence. The court's reasoning was grounded in the need to ensure that the defendant understood the process and the questions to protect his rights and maintain the fairness of the trial.

As a result of the court's decision, the videotaped police interview with the defendant was excluded from evidence. The court's ruling emphasised the importance of providing an interpreter when necessary to ensure that defendants with limited English proficiency can fully understand the interview process and questions, thereby upholding the principles of fairness and justice in the legal system.

Orders