R v Okoli
[2018] WASC 116
•13 APRIL 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: R -v- OKOLI [2018] WASC 116
CORAM: HALL J
HEARD: 3 APRIL 2018
DELIVERED : 3 APRIL 2018
PUBLISHED : 13 APRIL 2018
FILE NO/S: INS 240 of 2017
BETWEEN: THE QUEEN
Prosecutor
AND
EMEKA PAUL OKOLI
Accused
Catchwords:
Criminal law - Evidence - Expert evidence - Whether witness suitably qualified to give evidence of translations of telephone calls in Igbo language - Whether translations sufficiently reliable - Turns on own facts
Legislation:
Nil
Result:
The evidence is admissible
Category: B
Representation:
Counsel:
| Prosecutor | : | Mr S W O'Sullivan |
| Accused | : | Mr S D Freitag SC |
Solicitors:
| Prosecutor | : | Commonwealth Director of Public Prosecutions |
| Accused | : | DG Price & Co |
Case(s) referred to in decision(s):
Anderson v The Queen (1992) 60 SASR 90; (1992) 64 A Crim R 312
Bennett and Vaughan v The Queen (1998) 100 A Crim R 228
Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486
Weal v Bottom (1966) 40 ALJR 436
HALL J:
The accused is charged that on or about 17 May 2016, he imported a commercial quantity of a border controlled drug, namely methamphetamine, contrary to s 307.1(1) of the Criminal Code (Cth). His trial on that charge commenced on 3 April 2018.
At the commencement of the trial, the accused sought a ruling that evidence from a prosecution witness as to the meaning of telephone conversations in the Igbo language was inadmissible. A hearing was conducted to determine that issue. At the end of the hearing I ruled that the evidence was admissible and said that reasons for that decision would be published at a later date.
The prosecution case
The prosecution case is that on 17 May 2016, a sea container arrived in Sydney from Nigeria and was redirected to Perth. The container was addressed to a Kate M Stone at an address in Baldivis. The container was examined by Australian Border Force officers and Australian Federal Police (AFP) and found to contain lengths of timbers, some of which had been hollowed out. The hollows contained a number of packets of methamphetamine. The total weight of the drug was 45.636 kg with an average purity of 65.71%.
The AFP substituted the drug with an inert substance and allowed it to be delivered under covert surveillance. The container arrived at the Baldivis address on 24 June 2016. On the evening of 26 June 2016, two men arrived with a truck and started to unload the container. Police arrested the men and they were charged. They have been dealt with for their role.
In the meantime, investigations had continued and the police obtained a warrant to intercept telephone calls to and from a mobile telephone with a number ending in 606. It is alleged that the accused was the user of that mobile telephone. The mobile telephone with that number was subsequently seized by police during a search warrant at the accused's Melbourne premises. A laptop computer was also seized which contained copies of documents relating to the imported container.
A large number of telephone calls made to or from the 606 number were recorded prior to the mobile telephone being seized. It was established that those calls were in Igbo, a language spoken in Nigeria. A police officer who spoke that language was able to identify a number of calls that appeared to be relevant to the investigation. Recordings of those calls were then provided to Mr EA in order to provide an English interpretation. Mr EA subsequently provided English language transcripts of 178 intercepted calls. The prosecution relies on 40 of these transcripts.
An alleged co‑offender, HE, has pleaded guilty and cooperated with the prosecution. Mr HE will give evidence that he can identify his own voice and that of the accused in the intercepted telephone calls. If the evidence of Mr EA and Mr HE is accepted, the telephone calls represent a significant component of the prosecution case. This is because the person identified as the accused appears to make arrangements regarding examining and unloading the container, engage in discussions regarding the value of the contents and his own role in the importation, and make statements which could be interpreted as indicating knowledge that the contents include prohibited drugs.
The application to exclude
The accused sought a ruling that Mr EA's evidence and the English language transcripts he has produced are inadmissible. There are two bases for this application. First, it is submitted that Mr EA is not qualified to a suitable level to perform the task which he has undertaken. Secondly, that the transcripts prepared by Mr EA are unreliable.
On behalf of the accused, another interpreter was commissioned by the defence to interpret and prepare transcripts of seven of the 40 calls that the prosecution relies on. This interpreter, Mr BA, was called as a witness at the directions hearing. His evidence will be summarised later in these reasons.
The Crown called Mr EA on the directions hearing. He gave evidence as to his experience, qualifications and the process he followed in preparing his English language transcripts. A summary of his evidence will also be referred to later in these reasons.
Relevant principles
There was no question that without the benefit of evidence from a witness proficient in both the Igbo and English languages, the jury would be unable to understand the telephone calls. The primary issue was whether Mr EA was sufficiently qualified to give such evidence.
A person may be viewed as an expert in an area of skill or knowledge by virtue of nothing more than his or her practical experience in a given field.[1] In Weal v Bottom, the High Court held that a long course of actual experience in the use of a vehicle and observation of its behaviour in relevant circumstances could qualify a person to give evidence as to such behaviour. In Anderson, Olsson J said, at 325, that:
The basic principle involved is that the person must, through knowledge, however acquired, have reliable knowledge and/or skill reaching beyond that in possession of the trier of fact.
[1] Weal v Bottom (1966) 40 ALJR 436; Anderson v The Queen (1992) 60 SASR 90; (1992) 64 A Crim R 312; and Bennett and Vaughan v The Queen (1998) 100 A Crim R 228.
Whether expertise can be obtained through experience may depend upon the nature of the particular field of knowledge. In some cases, the necessary knowledge may be obtained by experiment and observation, in others this may not be possible.[2] It is for the judge to determine whether the witness has undergone such a course of special study or experience as will render the witness an expert in a particular subject. It is not necessary for the expertise to have been acquired professionally.[3]
[2] Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486.
[3] Clark v Ryan, and see Cross on Evidence [29,060].
The evidence of Mr EA
Mr EA gave two statements which were tendered at the directions hearing. He also gave oral evidence and was cross‑examined. The following is a summary of the evidence that he gave.
Mr EA was born in Nigeria and is a member of the Igbo tribal group. Igbo was his parents' language and the first language that he learnt as a child. Igbo is one of the three main languages spoken in Nigeria, in addition to English. It is spoken predominantly in the east of the country. There are 256 dialects within Igbo, though they are similar and speakers of each dialect can understand each other.[4]
[4] Trial ts 100 - 102.
Mr EA also learnt to speak English as a child. His parents spoke English. English is used as a general language in Nigeria. In primary school, Igbo was predominantly used, in secondary school there was a mix of Igbo and English, and in university English was the main language used. Mr EA's primary, secondary and tertiary education was undertaken in Nigeria.[5]
[5] Trial ts 103 - 104.
At university in Nigeria, Mr EA studied law. That course of study was undertaken in English. He graduated, was called to the bar and practised law in Nigeria. The courts in Nigeria use the English language and interpreters are used for other languages. He was called to the bar in Nigeria in February 1998 and continued to practise there until 2002.[6]
[6] Trial ts 104 - 150.
In 2002, Mr EA migrated to Australia. He undertook further study with the College of Law in Sydney in order to obtain admission as a lawyer. Those further studies were undertaken in English. He successfully completed those studies and was called to the bar in New South Wales in 2007.[7]
[7] Trial ts 105.
Mr EA is not presently practising law. He is now employed with Woolworths. His present employment requires him to use English. However, he continues to use Igbo when speaking to his children and other Nigerians living in Australia. He is a high chief and is called on to mediate disputes between ex‑patriot Nigerians living in Australia.[8]
[8] Trial ts 105 - 107.
Mr EA has done interpreting work for the AFP and the Department of Immigration. He is aware of the National Australian Association of Translators and Interpreters (NAATI). However, he has never applied for accreditation or recognition from that organisation because he does not want to do interpreting as a job.[9]
[9] Trial ts 106 - 107.
Mr EA was approached by the AFP in relation to this matter to undertake the interpretation of 178 recorded calls. He was given a compact disc containing the calls. He used the disc, together with a computer and headphones, to prepare English transcriptions. He said he listened to some parts up to 10 times. Sometimes the participants in the telephone calls used some English words in addition to Igbo.[10]
[10] Trial ts 108 - 109.
Mr EA became familiar with the participants of the telephone calls and assigned letters A through to E in respect of those participants. He used the same letter whenever the same person was speaking.[11]
[11] Trial ts 110 - 111.
Some of the participants were identified by their names in the course of the conversations, however, a person designated as A never identified himself.[12]
[12] Trial ts 111.
Mr EA said that in preparing his English transcriptions he listened to the recordings and interpreted what was said into English on a word by word basis. He did, however, accept that in some calls there was repetition and he had not included all of the repeated words in his transcription. He maintained that in this respect his transcriptions were a complete and accurate account of what was said in the calls.[13]
[13] Trial ts 111.
In cross‑examination, Mr EA accepted that in his first witness statement he had attributed a name to the person designated as A. He said that the name was merely used by him to assist his memory and because the voice of A was similar to that of a friend who had the name that he used. He said that the inclusion of the name in his statement was an error and that he had drawn this error to the attention of the prosecutor before the trial.[14]
[14] Trial ts 116 - 118.
Mr EA said that he had done interpreting work for the Ethnic Interpreter and Translation Service of New South Wales. He produced a letter from that service confirming that he has worked as an interpreter in the Igbo language on approximately 30 jobs for a total of 195 hours. The letter stated that Mr EA had provided a very reliable, honest and professional service.[15]
[15] Trial ts 121 - 122.
Mr EA was asked to compare his English transcriptions of some of the calls with those prepared by Mr BA. For the purpose of this comparison he was also played the recordings of some of the calls. He accepted that there were differences between his interpretations and those of Mr BA but maintained his belief that his own were accurate. He did accept, as he had in evidence‑in‑chief, that some repetitions were not included in his transcriptions. He also said that Mr BA had left some things out.[16]
[16] Trial ts 123 - 128, 141 - 142.
The evidence of Mr BA
Mr BA gave evidence by video‑link from Hong Kong where he resides. He was born in Imo State in South East Nigeria. The Igbo language is predominantly spoken in Imo State. He did his primary and secondary education in Nigeria before leaving that country to work overseas in 1997.[17]
[17] Trial ts 68 - 69.
Mr BA grew up speaking Igbo at home with his family. He also learnt to speak English and his primary and secondary education was in both languages.[18]
[18] Trial ts 69.
Mr BA moved to Hong Kong in 1997 where he worked for a charity organisation. He spoke English in that position. He came to Australia in 2000 to undertake some study. He studied for a Bachelor of Theology at the Southern Cross Bible College in Parramatta. That course took four years. He then returned to Hong Kong and subsequently to Nigeria. In Nigeria he established a church and a school and worked as the senior pastor of the church. He spoke to members of his congregation in both English and Igbo.[19]
[19] Trial ts 69 - 71.
Whilst in Australia Mr BA did some work as an interpreter and translator for the Australian Federal Police. That work started in 2001. He obtained recognition from NAATI as an Igbo interpreter. One of the jobs for the AFP involved travelling to Argentina for about a month as a member of a team. This job involved interpreting recorded telephone conversations from Igbo into English. He prepared written transcriptions of those interpretations. He has also given evidence in court on two occasions. Those occasions also involved providing written transcripts in English of telephone calls in the Igbo language.[20]
[20] Trial ts 71 - 74.
Mr BA was provided by the defence with a disc containing recordings of the telephone calls and asked to prepare interpretations of seven of them. He prepared written transcripts of his interpretation. He said that he listened to the calls and translated them from Igbo into English verbatim. He explained that he tried 'as much as possible to cut short the translation word to word'. He said that there was some repetition but he estimated that he had interpreted 98% of the words used. He said that sometimes English words were used amongst Igbo words.[21]
[21] Trial ts 74 - 76.
A number of the recorded calls were played to Mr BA and he confirmed his belief that his written transcriptions were correct. It was put to him that he had used the word 'box' whereas Mr EA had used the word 'container'. He said that in his view the word that was used meant box and that the word for container was not used.[22]
[22] Trial ts 77 - 79.
In one recorded conversation one of the callers refers to an address, apparently in Malaysia. Mr EA stated in his transcript that the words used were 'citia work', whereas Mr BA stated that the words used were 'citia warf'. The relevant part of the recording was played to Mr BA and it was apparent that these words were not in the Igbo language and that both interpreters had merely transcribed in phonetic terms what they thought they had heard.[23]
[23] Trial ts 80.
In another call, Mr EA had transcribed part of the conversation as including the words 'we will be sharing the proceeds amongst the three of us'. These words did not appear in Mr BA's transcription. However, when played the recorded call, Mr BA said that those words were spoken. He could not explain why they were not included in his transcription.[24]
[24] Trial ts 81, 89 - 90.
In cross‑examination, Mr BA said that he had used his laptop computer to listen to the telephone calls and that he did not have earphones. He accepted that there was some repetition in the conversations that he did not transcribe word for word. An example of this was when the address 'citia warf' was given. The address was repeated a number of times but Mr BA only put it down once in his transcription.[25] He accepted that in some of the calls he had used the word 'container' rather than 'box'. He said that the word for container and the word for box are different in Igbo and that the word box was used in the early calls. He said that the words used meant the same thing but varied in meaning according to the context. He said he had interpreted the words as he heard them.[26]
[25] Trial ts 92 - 93.
[26] Trial ts 95 - 97.
Other evidence
A letter from NAATI dated 17 October 2017 was tendered on the directions hearing (exhibit 1). This letter stated that there are no Igbo interpreters who are certified by NAATI. There is another category of interpreters who are 'recognised' by NAATI. There are four Igbo interpreters who fall into this category including Mr BA. Mr EA is not a NAATI recognised Igbo interpreter.
An information booklet from NAATI explaining recognition was tendered as exhibit 2. Recognition is an acknowledgement that the applicant had recent and regular experience as a translator and/or interpreter with no defined skill level. Recognition is only granted for languages for which NAATI does not offer accreditation testing. Recognition is provided on application and subject to the applicant providing details of experience as an interpreter in that language, evidence of proficiency in English and evidence of completion of a short training course (NAATI's online Introduction to Interpreting course or an equivalent). Recognition does not require the existence of any qualifications and is not subject to any proficiency testing.
Defence counsel also relied upon Consolidated Practice Direction 9.13. That practice direction sets out the usual requirements for a person to act as a court interpreter. It refers to accreditation by NAATI, amongst other things. That practice direction is relevant where an interpreter is required to provide simultaneous interpretation services for an accused person or a witness as part of the trial. Counsel accepted that it did not have direct application to this case because both witnesses had had the opportunity to listen to recordings and to prepare transcriptions which they could then check against those recordings for accuracy. However, defence counsel suggested that the practice direction could provide assistance in a more general way.[27]
[27] Trial ts 143 - 146.
Application of the principles to this case
The first question is whether Mr EA is qualified to give evidence as to the meaning of the telephone calls. There was no suggestion that anything said by Mr EA regarding his education and experience was incorrect. Igbo is Mr EA's first language and he was educated in both that language and English. He has continued to speak that language in Australia, including in the capacity as an interpreter. It is also clear that he is proficient in the English language, including that he studied in that language both in Nigeria and Australia at a tertiary level.
The fact that Mr EA has provided interpreter services for the Australian Federal Police, the Department of Immigration and the Ethnic Interpreter and Translation Service of New South Wales was not challenged. Whilst there was little detail as to the nature of that work, there was no reason to doubt Mr EA's ability to undertake it. Whilst Mr EA has no specific qualifications in interpreting, his experience in using both English and Igbo is evident. This was also apparent when he was giving evidence on the directions hearing.
The fact that Mr EA is not certified or recognised as an interpreter by NAATI is not determinative of his ability to give evidence in this case. A person can be qualified by their experience rather than by a professional course of study. In my view Mr EA's experience sufficiently qualifies him to give evidence of the contents of the recorded calls. The fact that he has no professional qualifications, does not work on a full‑time basis as an interpreter and has not previously given evidence in a court are matters which can be properly put in cross‑examination and may be relevant to what weight the jury gives to the evidence, but they do not lead me to a conclusion that this evidence should be excluded.
As to the reliability of the transcriptions prepared by Mr EA, it was not established that there were any clear errors or omissions in those transcripts. Under cross‑examination, Mr EA maintained that, other than in respect of repetitions, his transcripts were accurate and complete.
It is obvious that the written transcripts prepared by Mr BA differ from those prepared by Mr EA. However, bearing in mind that there are rarely equivalent words in two languages, there must always be room for interpreters to produce different versions of what is said. Whether this is significant depends upon the number and extent of the differences. Many of the differences are not significant as, when compared, the meaning is substantially the same in the two transcripts. Where it was suggested that there were differences of significance, a number of those differences fell away during the course of evidence and with others (including the use of the word container) there appeared to be room for an honest difference of opinion. It was not established that Mr EA's transcripts were unreliable in any significant respect.
In any event, differences of opinion between suitably qualified experts is not in itself a basis for concluding that the evidence of one of them should be excluded. Provided the witnesses are properly qualified, any conflict between them is properly a matter for the jury to take into account in considering the credibility of those witnesses and the weight which they will give to the evidence. A ruling that Mr EA's evidence is admissible does not preclude the defence from testing that evidence in cross‑examination and from calling Mr BA as a witness in the trial.
Conclusion
For the reasons given above at the conclusion of the directions hearing I dismissed the application by the accused to exclude Mr EA's evidence and ruled that that evidence is admissible at the trial.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AM
ASSOCIATE TO JUSTICE HALL13 APRIL 2018
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