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
[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
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.