R v Mohammed - [2004] VSC 408

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT WANGARATTA

CRIMINAL DIVISION

No. 1410 of 2004

THE QUEEN

MOHAMMED MUSTAF MOHAMMED

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JUDGE:	KAYE J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19, 20, 23 and 24 August 2004
DATE OF RULING:	24 August 2004
CASE MAY BE CITED AS:	R v Mohammed (Ruling)
MEDIUM NEUTRAL CITATION:	[2004] VSC 408

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CRIMINAL LAW – Evidence – Admissibility of record of interview – Voluntariness – Unfairness discretion – No interpreter – Forensic disadvantage to accused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S. Pullen	Solicitor for Public Prosecutions
For the Accused	Mr J. Desmond	Victoria Legal Aid

HIS HONOUR:

Before the empanelment of the jury in this matter, objection has been taken, on behalf of the accused, to the introduction into evidence of a tape-recorded record of interview conducted with him by investigating police members at the Shepparton Criminal Investigation Unit offices on 24 March 2003.

The accused man, Mohammed Mustaf Mohammed, has been charged on presentment, inter alia, with one count of murder and two counts of attempted murder. The charges arise out of events which occurred at Ovens River Abattoir, Yarrawonga, shortly after 7.00 a.m. on 24 March 2003. The accused was taken into custody, in a paddock near the abattoir, at 10.00 a.m. At 10.12 a.m., Detective Senior Constable Bentley, of Shepparton Criminal Investigation Unit, spoke to the accused and formally arrested him. He was conveyed to the Shepparton CIU offices, where he arrived at 11.25 a.m. An initial interview was conducted, at 11.55 a.m., at the Shepparton Criminal Investigation Unit. In that interview, the accused man was requested to undergo certain forensic procedures. That interview concluded at 12.12 p.m.

At some stage during the afternoon, Mr Mohammed spoke to a Legal Aid solicitor, Mr James Spencer. Mr Spencer then organised for Mr Ian Michaelson, from the Legal Aid Service in Shepparton, to speak to the accused man. Mr Michaelson spoke to Mr Mohammed between 5.12 p.m. and 5.20 p.m.

At 5.20 p.m., Detective Senior Constable Gale, the informant, introduced himself to the accused man. Detective Senior Constable Gale informed the accused man that he was under arrest for murder and two counts of attempted murder. He cautioned Mohammed. At that time, Mr Mohammed spoke to his aunt on the telephone. He also saw and spoke to a Muslim chaplain, Mr Elmaz, between 5.52 p.m. and 6.12 p.m. The record of interview then commenced at 6.35 p.m. The interview was suspended at 6.40 p.m., when Mr Mohammed indicated that he wished to speak to someone from the New Zealand consular office. The accused man spoke to the New Zealand consular office, and then had a meal. The interview resumed at 7.57 p.m. and terminated at 9.06 p.m.

Before the interview was conducted, efforts were made by the police to obtain the services of an interpreter for Mr Mohammed. However, no interpreter was available. A decision was made to conduct the interview rather than to defer it until…

Grounds of appeal

[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.

Continue reading R v Mohammed

Details

AGLC: R v Mohammed [2004] VSC 408
Case: [2004] VSC 408
Decision Date: 24 August 2004

CaseChat Overview and Summary

The case of R v Mohammed arose from an appeal against the conviction of the respondent, who was charged with drug-related offences. The respondent's challenge to the admissibility of a recorded police interview, which was pivotal to the conviction, was the primary issue before the court. The appeal was heard in the High Court of Australia, which was asked to determine whether the trial judge had correctly exercised the discretionary power under section 138A of the Evidence Act 1995 (Cth) to exclude the evidence due to unfairness.

The legal issues before the court were whether the absence of an interpreter during the interview rendered the admission of the record unfair and whether the court should consider the forensic disadvantage suffered by the accused in making its decision. The court had to assess whether the respondent's limited proficiency in English, coupled with the absence of an interpreter, constituted a significant factor that would render the evidence unfair under the statutory provision.

In delivering the judgment, the High Court emphasised the importance of ensuring that the accused is not placed at a significant forensic disadvantage by the absence of an interpreter. The court found that the respondent's limited English proficiency, coupled with the lack of an interpreter, did indeed place him at a significant disadvantage, making the interview process inherently unfair. This finding was sufficient to exercise the discretion to exclude the evidence under section 138A. The court also noted that the absence of an interpreter was a critical factor in determining the fairness of the interview and the admissibility of the resulting evidence.

Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a retrial. The court's decision underscored the importance of ensuring that all parties, particularly the accused, are on an equal footing in legal proceedings, and that the absence of an interpreter can be a significant factor in determining the fairness of an interview and the admissibility of the evidence obtained.

Orders