R v Gamar Eldin

Case [2016] QDC 206


DISTRICT COURT OF QUEENSLAND

CITATION:

R v Gamar Eldin [2016] QDC 206

PARTIES:

THE QUEEN

(Crown/respondent)

v

GAMAR ELDIN, Abd Elgawi Makawi

(defendant/applicant)

FILE NO:

1880 of 2014

DIVISION:

Criminal

PROCEEDING:

590AA Application

ORIGINATING COURT:

Brisbane District Court

DELIVERED ON:

4 May 2016

HEARING DATE:

17 September 2015; 18 September 2015; 2 November 2015

JUDGE:

Long SC DCJ

ORDER:

The application is allowed and it is ruled that evidence of the interview conducted with the applicant on 7 March 2014, is not admissible in the prosecution case at the trial of the applicant.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – CONFESSIONS AND ADMISSIONS – STATEMENTS – STATEMENTS MADE THROUGH INTERPRETERS – Where  police interviewed the applicant who speaks limited English through an interpreter – Where the respondent seeks admission of the police record of interview to establish the consciousness of guilt of the applicant through his denials – Whether the interview is admissible to prove such a consciousness of guilt   

CRIMINAL LAW – EVIDENCE – CONFESSIONS AND ADMISSIONS – STATEMENTS – VOLUNTARY STATEMENTS – VOLUNTARINESS – GENERALLY – Where  police interviewed the applicant who speaks limited English through an interpreter – Where the interpretations to and from the applicant were, in many instances, deficient – Whether the statements of the applicant were made voluntarily or in the exercise of a free choice to speak

CRIMINAL LAW – EVIDENCE – CONFESSIONS AND ADMISSIONS – STATEMENTS – RECORDS OF INTERVIEW – DISCRETION TO EXCLUDE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE –UNFAIR TO ADMIT OR IMPROPERLY OBTAINED –Where the applicant seeks exclusion of the police record of interview in the exercise of judicial discretion – Whether to exercise judicial discretion to otherwise exclude the police record of interview on grounds of public policy or because of unfairness in allowing reliance upon it at trial

LEGISLATION:

Criminal Code (Qld), ss 590AA and 632
Criminal Law Amendment Act 1894 (Qld), s 10
Domestic and Family Violence Protection Act 2012
Evidence Act 1977 (Qld), s 130
Police Powers and Responsibilities Act 2000 (Qld), ss 418(1)(b) and 431
Police Powers and Responsibilities Regulation 2012 (Qld), ss 23 and 26

CASES:

Bunning v Cross (1978) 141 CLR 54
R v Callaghan [1994] 2 Qd R 300
R v Ciantar (2006) 16 V R 26
R v Clarke; ex-parte A-G [1999] QCA 438
R v Connolly [1991] 2 Qd R 171
R v Duckworth [2016] QCA 30
Duke v R (1989) 180 CLR 508
Edwards v The Queen (1993) 178 CLR 193
Goldsmith v Sandilands (2002) 76 ALJR 1024
R v Hennig [2010] QCA 244
R v Hughes [1998] QCA 279
R v LAZ (1998) 1 V R 453
R v Lee (1950) 82 CLR 133
R v Livingstone [1987] 1 Qd R 38
R v LR [2006] 1 Qd R 435
MacPherson v R (1981) 147 CLR 512
Martinez & Ors v Western Australia (2007) 172 A Crim R 389
R v McCann [2009] QCA 289
R v Nahirni, Zmire & Zmire [2006] QCA 488
Police…

Continue reading R v Gamar Eldin

Sign in free to access the full text

Details
AGLC
R v Gamar Eldin [2016] QDC 206
Case
[2016] QDC 206
Decision Date

CaseChat Overview and Summary

The applicant, Gamar Eldin, was prosecuted for criminal matters and the central issue in this case was the admissibility of a police record of interview in which the applicant spoke through an interpreter. The matter was heard in the Supreme Court of South Australia. The respondent sought to admit the police record of interview, specifically to establish the applicant's consciousness of guilt through his denials. However, the applicant argued that the statements made during the interview were not voluntary and that the interpretation was deficient, thereby rendering the statements inadmissible.

The court had to decide whether the interview was admissible to prove the applicant's consciousness of guilt, and whether the statements were made voluntarily or in the exercise of a free choice to speak. The court also had to consider the exercise of judicial discretion to exclude the police record of interview on grounds of unfairness or public policy. The court found that the interpreter's translations were often deficient and that the applicant's statements were not made voluntarily or in the exercise of a free choice to speak. The court held that it would be unfair to admit the police record of interview and therefore exercised its discretion to exclude the evidence.

The court ruled that the evidence of the interview conducted with the applicant on 7 March 2014, is not admissible in the prosecution case at the trial of the applicant. The application was allowed.

Orders

Orders of the court

The application is allowed and it is ruled that evidence of the interview conducted with the applicant on 7 March 2014, is not admissible in the prosecution case at the trial of the applicant.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.