R v Rostom

Case [2007] SASC 210

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v ROSTOM

[2007] SASC 210

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice White)

12 June 2007

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - MATTERS CONNECTED WITH CONDUCT OF DEFENCE

Defendant and appellant convicted by jury verdict following a trial in the District Court - appellant was unrepresented - appellant was unable to read English - appellant provided with interpreter during the trial, but witness statements, the prosecutor's brief and the draft opening were not translated into Arabic - appellant attempted to point out inconsistencies between the witnesses' evidence and statements they had given to police, but was unable to identify or point to specific passages in their statements as he was unable to read the statements - Court informed him that it could not help him with the cost of translating the statements - whether the appellant was denied a fair trial - Held: allowing the appeal and ordering a retrial: the Judge needed to ensure that the appellant had an appropriate opportunity to consider translated written material, including in particular the witness statements - it cannot be said that no substantial miscarriage of justice has occurred.

Criminal Law Consolidated Act 1935 (SA) s 19(1), s 170(2), referred to.
MacPherson v The Queen (1981) 147 CLR 512; R v Gidley [1984] 3 NSWLR 168; R v Zorad (1990) 19 NSWLR 91; R v White (2003) 7 VR 442; Hitmann v Police (1999) 202 LSJS 132; Gould v Police [2005] SASC 297; Pezos v Police [2005] SASC 500; Friedricks v Police [2007] SASC 6; Tsakonakos v Police [2007] SASC 149; R v Lee Kun [1916] 1 KB 337; Kunnath v The State [1993] 4 All ER 30; Ebatarinja & Anor v Deland & Ors (1998) 194 CLR 444; Johnson v R (1987) 25 A Crim R 433; De La Espriella-Velasco v The Queen [2006] WASCA 31; Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438, considered.

R v ROSTOM
[2007] SASC 210

GRAY and SULAN JJ:

  1. This is an appeal against conviction.

  2. On 20 October 2006, the defendant and appellant, Mohammed Salahedd Rostom, was convicted by jury verdict following a trial in the District Court of aggravated serious criminal trespass in a place of residence, contrary to section 170(2) of the Criminal Law Consolidation Act 1935 (SA) (“CLCA”), and three counts of threatening life, contrary to section 19(1) of the CLCA. He was acquitted on a further charge of damaging property.

  3. This appeal raises for consideration the right of an accused to have access to, and a proper understanding of, documents relevant to his trial.  The issue is to be decided in circumstances where the appellant was unrepresented, and unable to read English. 

    The Respective Cases at Trial

  4. The appellant and his wife separated in 2001 and divorced in 2006. 

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AGLC
R v Rostom [2007] SASC 210
Case
[2007] SASC 210
Decision Date

CaseChat Overview and Summary

The case of R v Rostom involved the defendant, an appellant, who was convicted by a jury verdict following a trial in the District Court. The appellant was unrepresented during the trial and unable to read English. Although an interpreter was provided during the trial, the witness statements, the prosecutor's brief, and the draft opening were not translated into Arabic, the appellant's first language. This limitation hindered the appellant's ability to point out inconsistencies in the evidence presented by the witnesses. The court was informed that it could not help with the cost of translating the statements, raising the issue of whether the appellant was denied a fair trial.

The legal issues in this case centered on whether the appellant's inability to read English and access translated documents resulted in a miscarriage of justice, thereby requiring the setting aside of his convictions. The principles governing the conduct of a trial for an unrepresented accused, and the obligations of a judge in such cases, were well established and recently reviewed by Debelle J in Pezos v Police. The core issue was whether the appellant's lack of access to translated prosecution declaration statements led to material unfairness.

The court held that the appellant was denied a fair trial due to the absence of translated documents, leading to a miscarriage of justice. The judge's primary obligation in such cases is to ensure the trial's fairness, which includes providing necessary assistance to an unrepresented accused while maintaining neutrality. The appellant's age, inability to read or write English, and the complexity of the trial due to language barriers and the use of interpreters created significant challenges. The court concluded that the appellant's lack of access to translated materials had indeed resulted in relevant unfairness, and therefore, the appeal was allowed. The convictions were set aside, and a retrial was ordered.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The further grounds of appeal were only faintly addressed during oral submissions to this Court. As there is to be a retrial, there is little point in further canvassing these grounds.Conclusion The appeal should be allowed. The convictions should be set aside and a re-trial ordered. WHITE J: The circumstances giving rise to this appeal are set out in the joint reasons. The question on the appeal is whether a miscarriage of justice requiring the setting aside of the convictions occurred by reason of the appellant’s inability to cross-examine adequately. That inability arose because the appellant, who was unrepresented, did not have translations of the prosecution declaration statements. The principles relating to the conduct of a trial of an unrepresented accused, and in particular, the obligations of a judge in such trial, are well established. They were reviewed recently by Debelle J in Pezos v Police.[13] Although Pezos concerned the obligations of a magistrate, the principles reviewed by Debelle J are equally applicable in the case of a trial conducted by a judge with a jury. I respectfully agree with the review of the authorities by Debelle J in Pezos. [13] [2005] SASC 500; (2005) 94 SASR 154. The overriding aim of a trial judge is to ensure that the trial is fair and just. This will usually require that the judge provide some assistance to an unrepresented accused, while, at the same time, preserving both the appearance and reality of neutrality in the discharge of his/her role. The content of the judge’s obligations with respect to assistance to an unrepresented litigant varies according to the nature of the case and the circumstances of the litigant.[14] Likewise, the circumstances in which it may be concluded that material unfairness occurred in the course of a trial will vary according to the nature of the case, the issues which arise in it, and the circumstances of the accused.[14] Minogue v Human Rights and Equal Opportunity Commission [1994] FCA 85; (1999) 84 FCR 438 at [27]. In this case, as I have said, the issue is whether the appellant’s lack of access to translations of the prosecution declaration statements has resulted in relevant unfairness. The appellant is aged 60 years. He was born in Lebanon but moved to Australia in 1984. He does speak English reasonably well but it was not disputed on the hearing of the appeal that he is unable to read or write English. The appellant did have legal representation through the interlocutory stages. It seems that he decided (as he was entitled to), shortly before the scheduled date of commencement of the trial, to withdraw his instructions to his then advisers and to proceed while unrepresented. This decision created a number of difficulties in the trial, not only because the accused was unrepresented, but also because English is not his first language. Further, English was not the first language of the appellant’s wife, who was a principal prosecution witness. This meant that other difficulties arose through evidence being taken via the medium of closed circuit television and with the assistance of an interpreter in the Courtroom, as well as another interpreter in the room in which the witness was located. The impression from the transcript of the trial is that some of the oral translations may not have been as clear at the time that they were given as they now appear in the written transcript. It is evident that there were a number of misunderstandings.

Ratio Decidendi

Legal Principle Established

Counsel for the Crown submitted, however, that this was a case in which, notwithstanding that the Court may be of the opinion that the point raised in the appeal might be decided in favour of the appellant, the Court should conclude that no substantial miscarriage of justice occurred, and dismiss the appeal. Consideration of the Issues on AppealThe Unrepresented Accused An accused has a fundamental right to self representation. A person who cannot afford legal advice or legal representation must generally rely on the Legal Aid Commission to provide representation. If no such representation is provided, the person must represent themselves. On occasions this can lead to an unsatisfactory situation, particularly as trials in the District Court and Supreme Court often involve difficult questions of fact and law. When a person is unrepresented, an additional burden is placed on the judge to ensure that the accused receives a fair trial. In MacPherson,[1] the accused was unrepresented. Evidence had been given by police officers of confessions that they alleged the accused had made. The accused put to the police officer in cross-examination that he had made no confession. He also contended that the police had made threats to induce a confession. The trial Judge did not inform the accused of his right to ask for the question of voluntariness to be determined on a voir dire hearing in the absence of the jury. No voir dire was conducted. [1] MacPherson v The Queen (1981) 147 CLR 512. The members of the High Court discussed the responsibility of a trial judge, when an accused is unrepresented. The Court recognised that a judge faces difficulties in those circumstances. Whilst a judge cannot become an advocate for the accused, the judge must ensure that the accused is fully informed of his rights, and that the trial is conducted fairly. As Gibbs CJ and Wilson J observed:[2]There is no limited category of matters regarding which a judge must advise an unrepresented accused – the judge must give an unrepresented accused such information as is necessary to enable him to have a fair trial. And although no doubt some accused persons refuse the offer of legal representation for tactical reasons, an accused does not become disentitled to a fair trial because he has declined, and even perversely declined, an offer of legal assistance.[2] MacPherson v The Queen (1981) 147 CLR 512 at 524-525. Mason J similarly observed:[3]Giving full weight to the adversary character of a criminal trial and the difficulties of advising an accused who is not represented, I nevertheless consider that the trial judge is bound to ensure that an accused person has a fair trial. To that end he is under a duty to give the accused such information and advice as is necessary to ensure that he has a fair trial. … A trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as “fair”.[3] MacPherson v The Queen (1981) 147 CLR 512 at 534.