R v Masina (No 2)
[2020] ACTSC 152
•10 June 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Masina (No 2) |
Citation: | [2020] ACTSC 152 |
Hearing Date: | 9 June 2020 |
DecisionDate: | 10 June 2020 |
Before: | Mossop J |
Decision: | See [31] |
Catchwords: | CRIMINAL LAW – EVIDENCE – Cautions – admissions – requirement to translate caution – police interview with accused – accused fluent in Samoan but not English – telephone interpreter used – Samoan conversations with interpreter subsequently translated – accused did not understand caution – accused’s later conduct in interview consistent with understanding – portion of transcript prior to point of understanding inadmissible – subsequent portion not inadmissible because police asked multiple questions after gaining accused’s permission to ask “one more question”. |
Legislation Cited: | Evidence Act 2011 (ACT), ss 85, 90, 138, 139, 189 |
Cases Cited: | Em v The Queen [2007] HCA 46; 232 CLR 67 R v Braun (Unreported, New South Wales Supreme Court, Hidden J, 24 October 1997) R v Taylor [1999] ACTSC 47 |
Parties: | Alofa Masina (Applicant) The Queen (Respondent) |
Representation: | Counsel G Urbas (Applicant) S Jerome (Respondent) |
| Solicitors McKenna Taylor (Applicant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCC 196 of 2019 |
MOSSOP J:
Introduction
The accused is charged with one count of sexual intercourse without consent and three counts of committing an act of indecency without consent. In summary, the Crown case is that on or about 2 February 2018 the accused, who was a minister in a Baptist Church, met with the complainant at her house in Canberra to perform a “prayer of deliverance”. The accused stated that the prayer of deliverance involved the pair performing sexual acts with each other. The accused stated that the complainant and her family would be cursed if she did not participate. The complainant complied on the basis that she believed that otherwise she would be cursed. The sexual acts performed give rise to the four counts on the indictment.
The application was for orders that:
The record of interview between First Constable Benjamin Stuart and the Accused Alofa Talouli Masina of 26 October 2018 not be admitted at trial.
Yesterday I ruled that a transcript of the interview was admissible at the trial of the accused except for questions 3 to 100 in the transcript. These are my reasons for making that order.
Evidence
On the application, the accused read the affidavit of Adrian John McKenna of 4 June 2020. That annexed the original transcript of the interview with police. The accused is fluent in Samoan but not apparently fluent in English. For the purposes of the interview a telephone interpreter was used, and the transcript simply recorded when the interpreter or the accused were speaking in Samoan as “Foreign language spoken”.
Subsequently, a translator reviewed the audio of the interview and prepared a further transcript (the revised transcript), which recorded the Samoan language spoken and English translations of what was spoken in Samoan. That allowed for any discrepancies arising from the manner in which either English or Samoan was translated to be identified. The Crown accepted that this translation was accurate.
Some brief oral evidence was called by the accused from the translator. She gave evidence that the accused was fluent in Samoan but that his English was poor. The audiovisual recording of the interview with police was also played and tendered.
The Crown called evidence from Steve Bartlett, the Director of Ministries for the NSW and ACT Baptist Association. He gave evidence about the process by which the accused had applied to become a recognised minister in the Baptist Church. This evidence was largely in the form of unobjected to hearsay, and related to the fact that this process was conducted in English without the aid of an interpreter.
In cross-examination the limits of this evidence were demonstrated in that the witness could not give evidence about what assistance was received by the accused with his applications, with email communications or at the one week training course that he was required to undertake as part the process. Mr Bartlett was not present during the interview conducted in order to assess his suitability for becoming a recognised minister. Ultimately, his evidence was not of significance for the purposes of the present application.
Submissions
The accused contended that the evidence in the transcript of the interview should not be admitted because up until at least question 100 the accused had not effectively understood the caution that he had been given.
Section 139 of the Evidence Act 2011 (ACT) relates to the giving of cautions. It provides that a statement is taken to have been obtained improperly for the purposes of s 138 if before starting the questioning the investigating official did not caution the person. Section 139(3) requires that the caution be translated into a language in which the person is able to communicate with reasonable fluency. Section 139(5)(a) provides that the provision applies when a person is not actually under arrest if the investigating official believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of questioning. Counsel referred to the statements in R v Deng [2001] NSWCCA 153 at [17] and R v Taylor [1999] ACTSC 47 at [19]-[20] as to the purposive nature of the s 139(3) and the requirement for the caution to have been understood.
The revised transcript provides a proper basis for the submission that the caution was not understood. The Crown did not oppose the editing of the transcript so as to exclude that part of the transcript up to the point where it is clear that the accused does understand his entitlement to not answer questions which are put to him. At question 101 it becomes clear that the accused did not previously understand his entitlement to not answer questions and that from that point he does understand:
Ok, well, I didn’t understand that aspect, but now I understand, like it is, if I can’t answer, well ok.
In my view, questions 3 to 100 are not admissible.
The balance of the transcript was objected to under ss 138, 85 and 90 of the Evidence Act.
Section 85 relates to evidence of admissions made by an accused person in the presence of an investigating official. Section 85(2) provides:
Evidence of the admission is not admissible unless the circumstances in which the admission was made make it unlikely that the truth of the admission was adversely affected.
Section 85(3) provides a non-exhaustive list of matters which may be taken into account, including any relevant condition or characteristic of the person: s 85(3)(a). It is also relevant to take into account the nature of the questions and the manner in which they were put and the nature of any threat, promise or other inducement made to the person questioned: s 85(3)(b).
Section 90 provides a discretionary exclusion of evidence of an admission if the evidence is presented by the prosecution and “having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence”. The relationship between s 90 and the other exclusionary provisions relating to admissions was considered in Em v The Queen [2007] HCA 46; 232 CLR 67.
Section 189(3) provides that in the hearing of any preliminary question about whether an admission by an accused should be admitted into evidence in a criminal proceeding, the issue of the truth or untruth of the admission is to be disregarded unless the issue is raised by the defence. In this case, the issue was not raised by the defence.
The submissions of the accused were that there had been an emphatic refusal on his part to continue to answer questions and that the officers persisted to question him after that. In answer to a number of subsequent questions, the accused indicated that he was not going to answer them. The accused characterised the questioning that occurred subsequent to this as involving undue pressure or persistent questioning after the suspect had attempted to assert his right to silence. He submitted that the persistence of the police officers in their questioning amounted to an impropriety, namely something that was unacceptable having regard to contemporary community standards.
Further, there was a point at which Constable Stuart proposed to suspend the interview so that the accused could have a discussion with his solicitor. Before that occurred the other officer, Constable Harman, said “I just have one further question, if that’s all right with you to ask?” and the solicitor replies in the affirmative. The officer then asked approximately 30 more questions before the interview was suspended so as to permit the accused to have a discussion with his solicitor. It is said that the “one more question” technique was an inducement to answer the question because it was implicit that if this one question was answered then the interview would end.
The accused submitted that the provisions of s 138 were enlivened and that, having regard to the factors in subs 138(3), it was appropriate as a matter of discretion to exclude the material.
He also submitted that insofar as the answers given subsequently involved admissions, they were required to be excluded under s 85 or should be excluded under s 90.
Consideration
In my view, the submissions of the accused should not be accepted because the facts do not support the contention that there was an impropriety or other circumstance which would require the evidence to be excluded. Clearly, the overall effect of the questioning is only properly appreciated by reference to the revised transcript and the video of the interview which was tendered. However, it is possible to explain why the submissions should not be accepted.
The submission that there was persistent questioning after a refusal to answer any further questions was based upon the submission in relation to question 103. In answer to the question (as translated by the telephone interpreter) “Is there anything you want to tell them about what happened so they could gain some understanding about your charges or how it is affecting you?” the accused is recorded in the original transcript as saying “No. No. No.” While that is what is recorded in the original transcript, the revised transcript indicates that what was said in Samoan was “no, nothing happened, no”. Therefore, what was said was a denial that anything happened, rather than an emphatic refusal to answer any more questions. The revised transcript and the audiovisual recording does not indicate that there was a refusal to answer questions or any expression of a desire to terminate the interview.
In the questioning that followed the accused answers some questions and declines to answer others. He demonstrates by this approach an understanding of his entitlement to not answer questions if he does not wish to. The case is not analogous with R v Ireland (1970) 126 CLR 321, or R v Taleb [2019] NSWSC 241; 344 FLR 82 (Taleb), where there was an indication that the person being questioned did not wish to answer any more questions. Taleb was a case where the interview with police was excluded under s 138. It involved Mr Taleb indicating that he did not wish to answer any questions, and then repeating that on at least six occasions over 17 pages of transcript. Nothing similar occurred in the present case.
The “one more question” portion of transcript does involve asking more than one more question. It occurred after, by a series of answers, it became clear to Constable Stuart that the accused would not answer questions going directly to the circumstances of the allegations. At that point Constable Stuart has a discussion with the solicitor for the accused. He enquired whether it is correct that the accused did not wish to talk about the particular allegation. The solicitor suggested that he talk with his client and “that would shorten everything”. It is at this point that Constable Harman is asked by Constable Stuart whether she has anything to add and it is then that she says that she has “just one more question if that’s all right”. Constable Harman then asks a series of questions relating to peripheral matters, that is, not directly relating to the particular allegations. No objection was taken by the accused or his solicitor to the asking of those questions. When she then returns to matters more directly associated with the allegations the accused declined to answer them. During the course of the 30 or so questions the accused has a discussion with his solicitor and continues answering questions. After he has declined to answer two out of three questions (questions 158-162), which relate to the circumstances giving rise to the allegations, Constable Stuart returns to the issue of suspending the interview so that the accused can get some further advice from his solicitor and the interview is suspended.
After the two minute suspension neither the accused nor the solicitor indicated that the accused did not wish to answer any more questions. He is asked why the complainant might have made the allegations. He declined to answer that. He is asked whether he is sure that there is nothing else he wants to tell the police and he says that there is not. That is the end of the substance of the interview. There are then some formal questions about whether or not he has answered under his own free will, whether he was forced or threatened to answer any question and whether any bribe or promise was made in order to get into answer the questions. He answers those questions appropriately and the interview was terminated.
So far as s 138 is concerned, I am not satisfied that there was any impropriety on the part of police in questioning him as they did after he gave the answer at question 103. Further, I am not satisfied that the questioning by Constable Harman at question 127 up until the suspension of the interview at question 162 involved an impropriety. At no point did the accused or his solicitor indicate that he did not wish to answer any further questions. It was only as a result of Constable Stuart making the suggestion that the accused was taking an approach of not answering questions about the particular allegation that the issue of a possible suspension arose. The video demonstrates that there was nothing in the manner of questioning or the attitude of police which indicated that any pressure was being applied to the accused. Constable Stuart renewed the suggestion of a suspension of the interview when Constable Harman returned to the particular allegations and the accused answered questions indicating that he did not wish to provide an answer. This course was entirely consistent with the police permitting the accused an opportunity to explain the events if he wished to and explain his response to the allegations but to not waste the officers’ or the accused’s time going through an exercise of putting to him questions on subject matters which he did not wish to answer.
In relation to s 85, there were a number of matters which constitute admissions in the interview after question 100. A number of statements made by the accused to the police constitute admissions. In particular, he makes admissions that he knows the complainant (question 130), that he visited Canberra on three occasions (question 144) and that he performed a prayer of deliverance with her (question 147). While there are other matters that may constitute admissions, the submissions that were made were made at a very high level of generality and it is in those circumstances not essential to identify each relevant admission. In my view, the circumstances in which any admissions made after question 100 were made are such that it is unlikely that the truth of the admissions was adversely affected. That is principally because after question 100 it is clear that the accused was aware of his entitlement not to answer the questions. Further, given the benefit now of an accurate translation of the questions that were put to the accused by the interpreter and an accurate translation of his answers, there is no potential for a discontinuity between what he was asked and what he answered. The asking and answering in the revised transcript is all done in Samoan, a language which the accused is fluent in. Those circumstances mean that there is no general circumstance attending the making of the admissions which would adversely affect the truth of the admission. No submissions were directed to particular answers as to why their reliability would be adversely affected. No evidence was led suggesting any other personal circumstances of the accused which might mean that circumstances unknown to police gave rise to an issue about the reliability (cf R v Braun (Unreported, New South Wales Supreme Court, Hidden J, 24 October 1997)).
In relation to s 90 I am not satisfied that the evidence establishes circumstances beyond those already discussed which would make it unfair to the accused to use the admissions in the interview after question 100. In particular, I am not satisfied that the "one more question” portion of the transcript involved any inducement which detracted from the voluntariness of the answers that were given in that portion of the transcript.
Orders
Both parties considered that it would be useful, if it was possible, to make a ruling as to the admissibility of the transcript at this stage. As the only objections to the admission of the transcript in its revised form were those which were addressed by the parties on the application it is appropriate that I rule that it be admitted. The form of the transcript that the Crown sought to rely upon is that in the revised transcript. Questions 1 and 2 in the transcript were not objectionable.
The order that I made yesterday was:
1. The record of interview between the accused and Ben Stuart and Sarah Harman conducted at the Narellan Police Station on 26 October 2018, which is the Exhibit AM2 to the affidavit of Adrian John McKenna dated 4 June 2020, is admissible at the trial of the accused except that questions 3 to 100 are not admissible.
| I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 23 June 2020 |
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