R v Karalasingham
[2014] QDC 247
•5 September 2014
DISTRICT COURT OF QUEENSLAND
CITATION:
R v Karalasingham [2014] QDC 247
PARTIES:
R
(respondent)v
KANDEEPAN KARALASINGHAM
(applicant)FILE NO/S:
281/14
DIVISION:
Criminal Jurisdiction
PROCEEDING:
Application pursuant to s 590AA Criminal Code
DELIVERED ON:
5 September 2014
DELIVERED AT:
Ipswich
HEARING DATE:
18 & 22 August 2014
JUDGE:
Bradley DCJ
ORDER:
The recorded interview between the applicant and police conducted on 7 October 2013 is excluded as evidence at the applicant’s trial.
CATCHWORDS:
CRIMINAL LAW – EVIDENCE – CONFESSIONS AND ADMISSIONS – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE –where the applicant applied pursuant to s 590AA of the Criminal Code to have a recorded interview excluded as not voluntary or in the exercise of judicial discretion – where the applicant is a refugee from Sri Lanka – where the applicant’s ability to speak or comprehend English was limited – where an interpreter was not obtained for the recorded interview – whether the applicant exercised free choice to speak or remain silent – whether it would be fair for the recorded interview to be admitted as evidence at the applicant’s trial
Criminal Code 1889 (Qld), s590AA
Criminal Law Amendment Act 1894 (Qld) s 10
Police Powers and Responsibilities Act 2000 (Qld) ss 7, 433
Police Powers and Responsibilities Regulations 2012 (Qld), Schedule 9 s 28
Queensland Police Service Operational Procedures Manual, s 6.3
Cleland v R (1982) 1251 CLR 1
McDermott v The King (1948) 76 CLR 501
R v Ireland (1970) 126 CLR 321
R v Lee (1950) 82 CLR 133
R v Swaffield; Pavic v R (1998) 129 CLR 159
COUNSEL:
S Neaves of counsel for the applicant.
M Wilson of counsel for the respondent.
SOLICITORS:
M A Kent and Associates for the applicant.
Office of Director of Public Prosecutions for the respondent.
Background
The applicant is charged that on 7 October 2013 at Riverview he unlawfully and indecently assaulted a young woman and during the offence he was in company with another person.
The applicant is a refugee from Sri Lanka seeking to live in Australia. He arrived in Australia by boat on 13 October 2012 and was detained at the Cocos Keeling Islands, Christmas Island, the Northern Immigration Detention Centre in Darwin and the Scherger Immigration Detention Centre on Cape York. He was then released into the community on a bridging visa and was living in the community on that basis when the offence was allegedly committed. After being charged with the offence, he was again detained by immigration authorities and is now a resident of Villawood Immigration Detention Centre in New South Wales.
On the date of the alleged offence, 7 October 2013, the applicant participated in a recorded interview with Senior Constable Paul Cognet at the Goodna Police Station. This is an application to exclude that recorded interview from evidence at the applicant’s trial on the basis that, firstly, any admissions made therein were not made voluntarily and, secondly, on the basis that any admissions were unfairly obtained and I should exercise my discretion to exclude them.
The facts alleged by the prosecution are that the applicant, who is 29 years of age, approached the 16-year-old female complainant, who was previously unknown to him, on a platform at the Riverview railway station. He grabbed the complainant and pushed her by the biceps against the shelter of the train station and tried to kiss her on the lips. She tried to break free but could not. The applicant then put his hand between her thighs and tried to spread her legs apart, and with his other hand touched the complainant’s breasts over her clothing. The complainant managed to break free and attempted to punch the applicant. She then sat down on a nearby bench seat. The applicant sat next to her and asked her questions. She told him to leave her alone, but the applicant grabbed the complainant’s head, turned it towards his face, put his hand down her shirt and grabbed one of her breasts. He put his head towards her chest, sucked on both of her nipples and put his hand under her shorts. The complainant was begging the applicant to stop and the applicant’s friend also told him to stop. When asked, the complainant gave the applicant a false name and said that she was 13 years of age. At this the applicant appeared shocked and said to her, “We’re just friends. This is our secret.” The applicant showed the complainant his Facebook page and told her he was 28 years of age and that his mother had cancer. He again grabbed the complainant by the wrist, tried to pull her head towards him and touched her again on the breast area. At that point, the train arrived and the complainant sought assistance from a friend who disembarked, and police were called.
In the recorded interview, the applicant states that he thought the complainant was 23 or 24 years of age. He admitted he touched her but only on the outside of her clothing, and thought that she liked being touched by him. He said that when the complainant told him she was 15 years old he immediately stopped touching her. He told the police officer that he touched the complainant like he would a girlfriend, as he felt that that day he had met his Australian girlfriend. He agreed that the complainant did not say yes and did not say no when he was touching her and that she did not say anything to him to make him think it was okay to touch her. He said that he did not believe he required permission to touch a woman’s private parts (breasts) because you could tell from a person’s body language. He said that in Sri Lanka you do not ask in this kind of situation and that if the lady keeps silent, then it is okay to keep touching.
The recorded interview
The interview took place between 5:45 pm and 7:06 pm on 7 October 2013. A transcript was tendered in these proceedings, as was a copy of the recorded interview itself.
I have watched the first half of the interview, which counsel agreed is sufficient to consider the issues in this application. In the beginning of the interview, when answering questions about his personal details such as his name, his address and his date of birth, the applicant is able to give Senior Constable Cognet prompt and coherent responses. However, when Senior Constable Cognet attempts to explain to the applicant that he is not under arrest and asks whether he came to the police station of his own free will, the applicant clearly demonstrates that he does not understand. He expresses surprise that he is not under arrest and does not apparently understand that he is free to leave.
It is quite apparent that the applicant does not understand what is meant by a “threat or a promise” in the context of whether any promise or threat has been made to him to induce him to take part in the interview, and that he is free to leave.
The applicant displays particular difficulty understanding the concept of his right to silence. In this regard, the following exchange takes place:
“SNR CONST COGNET: Okay I need to tell you that you have the right to remain silent.
KARALASINGHAM: Yeah.
SNR CONST COGNET: Do you know what that means?
KARALASINGHAM: Yeah.
SNR CONST COGNET: What’s that mean?
KARALASINGHAM: I want to sil-, keep silence.
SNR CONST COGNET: Y–, okay. So you can remain silent and not say anything--
KARALASINGHAM: Yeah.
SNR CONST COGNET: If you want to. It’s your choice.
KARALASINGHAM: Yeah.
SNR CONST COGNET: Do you understand that?
KARALASINGHAM: Yeah.
SNR CONST COGNET: Alright. So you don’t have to answer my questions.
KARALASINGHAM: Yeah.
SNR CONST COGNET: If I ask you a question, you don’t have to answer it unless you want to answer it.
KARALASINGHAM: Yeah.
SNR CONST COGNET: Alright. You don’t have to say anything at all--
KARALASINGHAM: Yeah.
SNR CONST COGNET: Unless you want to say something.
KARALASINGHAM: Yeah.
SNR CONST COGNET: Right. And you don’t have to make any statement to the police--
KARALASINGHAM: Yeah.
SNR CONST COGNET: Unless you want to.
KARALASINGHAM: Yeah.
SNR CONST COGNET: Do you understand all that?
KARALASINGHAM: Yeah.
SNR CONST COGNET: Okay. So explain that back to me in your own words.
KARALASINGHAM: You are telling I am not, I am not, I can answer, I can ah [indistinct] asking any question.
SNR CONST COGNET: No. I, I’m telling you that if you want to answer a question, you can answer a question.
KARALASINGHAM: Yeah.
SNR CONST COGNET: It’s your choice.
KARALASINGHAM: Okay.
SNR CONST COGNET: Okay. So if I ask you--
KARALASINGHAM: Yeah.
SNR CONST COGNET: Tell me what you did earlier today--
KARALASINGHAM: Yeah.
SNR CONST COGNET: You can, then you can say, you can think for yourself, do I want to answer that question, yes I do or no I don’t. That’s your choice.
KARALASINGHAM: Yeah [indistinct].
SNR CONST COGNET: Do you understand that?
KARALASINGHAM: Yeah yeah.
SNR CONST COGNET: Okay. So explain that to me.
KARALASINGHAM: Yeah.
SNR CONST COGNET: Explain it to me so I know that you um-,understand it.
KARALASINGHAM: I, I, I understand. You ask question--
SNR CONST COGNET: Yeah.
KARALASINGHAM: Yeah.
SNR CONST COGNET: So if I ask you a question then?
KARALASINGHAM: I answer or not.
SNR CONST COGNET: You answer or not. And whose choice is it whether you answer or not?
KARALASINGHAM: Answer.
SNR CONST COGNET: No.
KARALASINGHAM: [indistinct]
SNR CONST COGNET: But if you decide, who, who decides whether you answer or don’t answer?
KARALASINGHAM: You.
SNR CONST COGNET: No, you decide.
KARALASINGHAM: Ah yeah, I decide.
SNR CONST COGNET: Yeah. I ans – I ask the question. And then you decide um if you want to answer the question--
KARALASINGHAM: [indistinct]
SNR CONST COGNET: Or you don’t want to enter the, answer the question.
KARALASINGHAM: I want to answer the question.
SNR CONST COGNET: Okay. Alright. I, I just need you to understand that it’s your choice to decide--
KARALASINGHAM: Yeah.
SNR CONST COGNET: Yes or no--
KARALASINGHAM: Yeah.
SNR CONST COGNET: To whether or not you answer the question.
KARALASINGHAM: Yeah.
SNR CONST COGNET: Do you understand that?
KARALASINGHAM: Yeah.
SNR CONST COGNET: Okay. So, so if I ask you a question, if I say to you, tell me what you did last week, um wh-, what,, what, what do you do then? You decide, you will decide whether you want to answer the question--
KARALASINGHAM: Yeah.
SNR CONST COGNET: Or don’t answer the question.
KARALASINGHAM: Answer the question.
SNR CONST COGNET: Okay. But, but it’s your decision to decide, to decide whether you want to answer the question or not. Do you understand that?
KARALASINGHAM: Yeah.”
The above is the extent of the exchange between Senior Constable Cognet and the applicant regarding the applicant’s right to silence and the applicant’s understanding of that concept. A viewing of the interview illustrates that many of the apparent agreements by the applicant to the questions or concepts put to him are most likely gratuitous and do not display any actual understanding of the questions or concepts. In fact many of the questions are met with blank stares and hesitant responses.
Quite clearly, English is not the first language of the applicant, but it is not until p 33 of the transcript (or approximately one-third of the way into the interview) that Senior Constable Cognet asks the applicant if he has any difficulty reading or writing English. To that question, the applicant replied, “[a]h, I can’t reading and writing English but I can’t understand hundred per cent. I can understand 60 per cent.”
Senior Constable Cognet at this point gives the applicant a notice to read out loud. The applicant is able to read the document quite well, but when asked if he understands what he has read, he replies, “[n]o”.
The applicant says that he can speak English better than he can read and write English, and when asked if he has any trouble understanding what Senior Constable Cognet is saying to him, he says, “[n]o, I can understand 80 per cent”. At no stage does Senior Constable Cognet offer to obtain an interpreter for the applicant.
In addition to the applicant’s patent inability to understand what Senior Constable Cognet is saying to him with respect to his rights, particularly his right to silence, and the purpose of the interview, the applicant is clearly quite emotional and upset during the interview. He expresses fear as to the consequences of his being charged, particularly from an immigration point of view, and does not appear to understand the purpose of the interview. The applicant appears to believe that there will be some sort of meeting with “the lady” (the complainant) so that they can talk and sort out the issue.
When the applicant is asked to give his version of the events, he clearly has great difficulty expressing himself.
Certainly by about p 15 or 16 of the transcript (approximately one-eighth of the way into the interview) Senior Constable Cognet must have had significant reservations about whether the applicant could understand his rights.
Senior Constable Cognet understood that the applicant was very scared of the consequences of criminal legal action given his status in Australia, but at that point he did not again raise the opportunity for the applicant to obtain legal advice.
Testimony given during the application
In an affidavit, the applicant states that he was born on 30 January 1984 in Sri Lanka. In 2011 he was the driver of a vehicle involved in a single vehicle accident which resulted in the death of a passenger, who was a military officer. He was accused of deliberately causing the crash and killing the officer. On the day of the accident he was taken into custody by military officers and tortured in an attempt to have him confess. This resulted in burst eardrums and multiple fractures and cuts.
The applicant was convicted of careless driving and ordered to pay compensation to the deceased’s family, but received threats after the conviction and decided to flee the country.
The applicant states that he was very upset and confused when interviewed by police on 7 October 2013 and thought that he had no choice but to have an interview as he was so scared the police would send him back to Sri Lanka if he did not have an interview. He did not understand that he did not have to answer any questions or that he could call a lawyer. He felt that he was being forced to answer questions and he did not understand what all the questions meant.
The applicant gave oral evidence through a Tamil interpreter that at the time of the interview he was very confused and he cannot now remember what questions were asked of him or what his answers were. His evidence was that whilst he is now learning English at the Villawood Detention Centre and he is the only Tamil speaking person at the centre, he is incapable of having a basic conversation in English and only speaks English if he has to. He did learn a small amount of English at school but could not recall much when he arrived in Australia.
He is not sure if he asked police for an interpreter or if he was offered one. He believed that the terms of his visa meant that “if you go to the police station you would immediately be sent back to Sri Lanka”. When the police officer spoke to him in a “raised tone” he “remembered immediately what happened in Sri Lanka … if he don’t speak he’ll be tied back, beaten up, all the tortures will be done. So he remembered that so he gave some answers.”[1]
[1] Applicant speaking through interpreter at hearing.
Senior Constable Cognet’s evidence was that he met the applicant for the first time in the Goodna police station and before the recorded interview he had a preliminary conversation with him to establish his name, where he was from, where he lived and who with, and he told him he wanted to conduct an interview. It was obvious to him that English was not the applicant’s native language. He believed however that the applicant understood what he was saying and could speak English well enough to take part in an interview. He saw that the applicant’s mouth appeared very dry and he obtained a drink of water for him.
He spoke to the applicant in a “normal tone of voice” and he did not ever raise his voice to the applicant. The applicant appeared nervous. There was no discussion about interpreters. He was of the opinion the applicant was able to be interviewed without one. He said he understood his obligations under the Police Powers and Responsibilities Act 2000 (“PPRA”) in relation to interpreters but he didn’t believe the applicant needed an interpreter “[b]ecause when I spoke with him, he was able to answer the questions that I was asking him, and he seemed to understand English and be able to speak English well enough to carry out a conversation”. He knew the applicant had come to Australia “semi-recently” and that he had been at a detention centre, but he did not know he was a refugee.
Senior Constable Cognet admitted that initially it was clear the applicant did not understand that he was not under arrest or his right to silence, but he was ultimately satisfied that the applicant did understand his rights. He did establish that the applicant’s first language is Tamil and he agreed it would not have been difficult to contact an interpreter service to ask for an interpreter.
Requirements of PPRA and QPS Policy
Section 433 of the PPRA provides:
(1) This section applies if a police officer reasonably suspects a relevant person is unable, because of inadequate knowledge of the English language or a physical disability to speak with reasonable fluency in English
(2) Before starting to question the person, the police officer must arrange for the presence of an interpreter and delay the questioning or investigation until the interpreter is present.
(3) In this section—
investigation means the process of using investigative methodologies, other than fingerprinting, searching or taking photos of the person, that involve interaction by a police officer with the person, for example, an examination or the taking of samples from the person.
Section 7 of the PPRA notes that it is parliament’s intention that police officers should comply with the Act.
Schedule 9 of the Police Powers and Responsibilities Regulations 2012 is the Responsibilities Code.
(1) This section applies, for section 433 of the Act, to a police officer for—
(a) forming a reasonable suspicion about whether a relevant person is able to speak with reasonable fluency in English; and
(b) arranging for the presence of an interpreter during questioning of a relevant person.
(2) The police officer may ask the relevant person questions, other than a question related to the person’s involvement in the offence for which the person is to be questioned, that will help the police officer form the reasonable suspicion.
(3) In particular, the police officer may ask questions that may help the police officer decide whether or not the relevant person—
(a) is capable of understanding the questions; and
(b) is capable of understanding what is happening; and
(c) is capable of understanding the person’s rights at law;
(d) is capable of effectively communicating answers to the questions; and
(e) is aware of the reason the questions are being asked.
The QPS Operations and Procedures Manual at section 6.3 details QPS policy with respect to people with special needs. Persons who are unable because of an inadequate knowledge of the English language to speak with reasonable fluency in English or because of cultural, ethnic or religious factors including those relating to gender attitudes, may have a special need. The policy is that
“[w]hen an officer intends to interview a person with a special need, the officer should take whatever action is needed to compensate for that special need or to comply with the relevant legislative requirements.” It is ordered that “Officers are to ensure interviews are conducted under conditions where the person being interviewed is not oppressed or overborne by any condition, circumstance or person.”
The law
Section 10 of the Criminal Law Amendment Act 1894 provides:
No confession which is tendered in evidence on any criminal proceeding shall be received which has been induced by any threat or promise by some person in authority, and every confession made after any such threat or promise shall be deemed to have been induced thereby unless the contrary be shown.
A confession is made voluntarily if it is made in the exercise of a free choice to speak or to remain silent.[2] The onus is on the prosecution to prove on the balance of probabilities that the confession has been made voluntarily.
[2]McDermott v The King (1948) 76 CLR 501; R v Lee (1950) 82 CLR 133; Cleland v R (1982) 1251 CLR 1
Additionally, a court has a discretion to exclude a confession if it has been unfairly obtained or if it is contrary to public policy to admit it.[3] The onus to establish that such a discretion should be exercised is on the defence.
[3]R v Swaffield; Pavic v R (1998) 129 CLR 159; R v Ireland (1970) 126 CLR 321
Consideration
It is clear from the extract from the transcript of the interview set out above that the applicant did not understand that he had a right to refuse to answer questions. He did not answer Senior Constable Cognet’s questions in the exercise of a free choice to speak or to remain silent. This is because he simply could not adequately understand what was being said to him. This should have been obvious to Senior Constable Cognet. The matter could have been addressed with relative ease by the obtaining of an interpreter for the applicant before he was interviewed.
Additionally, Senior Constable Cognet, should have recognised the applicant as a person with special needs and should have obtained an interpreter for him. His failure to do so would make the admission of the recorded interview unfair. There have to be grave doubts as to whether any statements about the offending by the applicant are accurate or even sensible given his very limited ability to express himself in English. The reliability of any statements against interest is questionable.
Order
I order that the recorded interview between the applicant and Senior Constable Cognet conducted on 7 October 2013 be excluded as evidence at the applicant’s trial.
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