R v Masina (No 2)

[2020] ACTSC 152

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 Deng [2001] NSWCCA 153
R v Ireland (1970) 126 CLR 321
R v Taleb [2019] NSWSC 241; 344 FLR 82

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

1. 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.

1. 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.

1. 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

1. 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”. 

1. 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…