R v Rostom
[2007] SASC 210
•12 June 2007
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 210GRAY and SULAN JJ:
This is an appeal against conviction.
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.
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
The appellant and his wife separated in 2001 and divorced in 2006.
The charges arose out of an incident said to have occurred on 1 October 2004 at the home of a daughter of the appellant. The prosecution case was that the appellant’s former wife visited their daughter on 1 October 2004 with her four other daughters. The appellant, it was said, arrived between 6:00 pm and 6:30 pm. The appellant was holding a knife when he alighted from his car. He had a verbal altercation with his former wife. She ran inside and locked herself in the toilet.
The prosecution alleged that the appellant entered the house and approached the toilet. He threatened to kill his former wife. The appellant was then confronted by one of his daughters.
Another daughter gave evidence of seeing the appellant stop his car on the front lawn at about 6:00 pm to 6:30 pm. She ran inside the house. She recounted that the appellant alighted from the car. He had a machete in his hand and he said that the day before he got married he had to kill [herself], [her mother] and [her sister]. The appellant followed her inside. She went to her sister’s room. She gave evidence that the appellant said, “Open the door, open the door. I want to kill you”.
Another daughter gave evidence that she was at the doorway of the house when she saw the appellant. She recounted that he was holding a long knife with a wooden handle. He said, “Youse have to die before the night I get married”. She ran to her sister’s room. She heard the appellant say, “Get out. I want to kill you”.
As earlier observed, the appellant was unrepresented. His first language was Arabic. He could speak and understand English reasonably well but could not read or write English. An interpreter was provided for his assistance during the trial. However, witness statements, the prosecutor’s brief and the draft opening were not translated into Arabic.
The appellant’s case was that he saw his family at about 2:30 pm to 2:45 pm at a cemetery next to a mosque. He denied being at his daughter’s house at about 6:45 pm on 1 October 2004. He said that later that evening he went to the daughter’s house. When he knocked on the door, no-one came. He went to the back and then returned to the front of the house, at which point the police arrived and arrested him.
It was the appellant’s case that his former wife and daughters fabricated their evidence about the alleged incident that gave rise to the charges. As a result, their credibility and reliability and the consistency of their evidence was a critical aspect of the trial.
The Appeal
The Failure to Translate
At the hearing of the appeal, the appellant was represented by counsel. The Court admitted affidavits of the appellant and of his solicitor. Counsel for the Crown raised no objection and did not seek to cross-examine either deponent.
The appellant deposed that he was born in 1946 in Iraq. He came to Australia in 1984. He explained that he can speak English reasonably well but cannot read or write English. He deposed that he was unable to read the witness statements that were used in the trial and were provided to him in English. During the trial he informed the Judge that he could not read or write English.
The appellant was aware that there were inconsistencies between the witnesses’ evidence and statements they had given to police. A solicitor, prior to the trial, had read some of the statements to him. However, the appellant was unable to read the statements himself. As a result, he was unable to identify or point to specific passages in their statements.
The appellant deposed that, during the trial, he was informed by a court officer that he could have the witness statements translated and he was given the name of an agency. He went to the Lebanese Women’s Association and the Muslim Women’s Association, but they were both closed. He then went to the Migrant Resource Centre, but was told that they could not translate the papers for him. He then attended the agency that the court had referred him to and was told that the cost would approximate $2.50 per word.
The appellant recounted that he returned to the registry at the District Court and spoke to a member of staff. He explained that he could not afford to have the statements translated. A member of the Judge’s staff then attended. She informed him that the Court could not help him with the cost of translation.
The appellant’s present solicitor confirmed the accuracy of these matters with the Deputy Registrar of the Court.
The Trial Process
The appellant’s trial in the District Court commenced on 5 October 2006. Prior to the empanelment of the jury, the Judge explained, through an interpreter, the trial processes to the appellant. The Judge noted that the appellant had been provided with a copy of the prosecutor’s brief and a copy of the prosecutor’s draft opening address to the jury. However the Judge did not inquire whether the appellant could read English.
After addressing preliminary matters, the Judge asked the appellant if there was anything he wished to ask. The appellant raised a number of matters and then the following exchange occurred:
Interpreter: He is asking the lawyer for translator to translate his documents that were handed to him, all the documents he has.
His Honour: We will see about that. I’m not sure I can do that but we will do my best endeavours. I’ll have my associate speak to [the appellant] in a moment. Any other matters?
Later, the interpreter informed the Court that the appellant was able to speak English but unable to read English at all.
The appellant attempted to conduct his defence with the assistance of the interpreter. The Judge assisted the appellant to phrase questions and to put propositions to the witnesses. However, it is apparent from a reading of the transcript that the appellant was having great difficulty in putting his case to the prosecution witnesses.
The interpreter informed the Judge that the appellant had inquired whether it was possible to provide the jury with a copy of a his former wife’s witness statement, because that statement was different from her evidence. The Judge responded that he would arrange for a copy of the transcript of evidence to be made available to the appellant. The Judge pointed out that as the appellant already had copies of the original statements of the witnesses he could ask questions about inconsistencies between the statement and the evidence. The trial Judge informed the appellant that it was important for him to prepare those questions. The Judge then adjourned the proceedings to the following day.
The issue of the difficulties confronting the appellant arose later when the interpreter informed the Judge that the appellant was asserting that one of his daughters’ evidence was different from the earlier statement. The Judge then commented:
Thank you for that, Mr Rostom, but insofar as you say that something is different from what was said in the statements, you should be saying to her, reading out to her what’s in the statement. Why do you say it is different?
The interpreter responded:
Your Honour, he is saying that he asked the court to provide him with a transcript of the documents for him but did not get any answer to that.
The appellant’s inability to read in English was raised again on 10 October 2006:
His Honour: … Just so I understand, you can understand some English, can’t you Mr Rostom?
[The appellant] Your Honour I have many problems with translating the documents and being able to understand the prosecutor.
His Honour: Firstly about the documents, if you need – as I think you have been told a couple of times by the court staff, we don’t and can’t order documents to be translated but there is – you might be able to write down for Mr Rostom – there is that service at 24 Flinders Street … there is an interpreting and translating service, so you can go there and have documents translated for you. I understand from [the prosecutor] we will only have the one witness today so there will be plenty of time for you to go around there and see the people and take any documents you want translated. If at any time during the trial you need a break to have documents translated you let me know and we will do our best to assist you, but as I say, we don’t interpret documents or translate them for you, you need to go to that place, 24 Flinders Street; you understand?
On the following day, the trial proceeded. The Judge made no inquiry of the appellant about whether he had been able to obtain translations of the documents.
The topic of an inconsistency between a prior statement and evidence arose during the appellant’s cross-examination of his former wife:
His HonourI want you to think very carefully over the next 10 minutes or so about the questions that you want to ask of the witness, what things you want her to answer. Are they related to what occurred on the particular day? You think carefully about the questions you want to ask and try and write them out in advance so you know what you are going to ask.
Interpreter He is saying that he didn’t have any objection about the prosecutor’s way of questioning but he has – the prosecutor has all the papers and his papers are contradictory to each others. You, your Honour, are the one who gave him these papers which are from the victims. And he knows nothing about that.
His HonourWhat you are talking about is the statements of witnesses who are to be called. You might want to ask those witnesses when they are called, if they say something different when giving evidence to what is in the statement. I’ve said to you so many times before that you are at a disadvantage. You need to have a lawyer because you may be making your case worse by asking questions that you should not be asking.
The difficulties confronting the appellant are further demonstrated by the following interchange:
Interpreter: … He is saying that the prosecutor is trying to question you in a way that you say things and these things are different from the papers that he has. You say something different and you are saying everything different.
His Honour: Mr Rostom, I think it is important, you must ask questions, not make statements, ask questions of the witness. If you say you want to put to the witness that she has said something today different to what’s in her statement you say this “In the statement you said so and so, do you agree with that?”.
The appellant shortly after attempted to raise a further inconsistency:
Interpreter: …He said that [his wife] said that she was with her daughters, all of them in the house at the same time. How come they were all in the house at the same time but in the paper that the prosecutor has each and every single one of the daughters are saying different things from each other despite that they were all at the same time in the house? They are saying different things.
His Honour: I think certainly [the appellant] will be able to ask each of the daughters about the different statements when they come along to give evidence but does [the appellant] want to put a question about whether a knife was taken off him or otherwise? What question does he want me to ask of the witness?
The appellant also attempted to raise an inconsistency between an out of court statement and the oral evidence of one of his daughters. This related to the position in which the appellant was alleged to have been carrying a knife. The transcript reveals considerable confusion:
His Honour: I am terribly sorry, which papers are you asking about, Mr Rostom? Are you talking about a statement or the evidence which the witness has given? What are you speaking about?
Interpreter: He is saying that it is about the papers of her first statement and then the affidavit for the court here.
His Honour: Well, I think perhaps the best thing to do is, if you say that something different was said in a statement, perhaps the best thing to do is to get the statement out and read out to [the witness] what you say she said and ask her to comment about that.
Interpreter: He is saying that he already wrote those papers and he knows what is written in those papers.
His Honour: I think you have got to be fair to the witness and put to her what was said. Do you have the statement with you that you say she said certain things?
[The appellant]: Yes.
Interpreter: He is saying that first we had better cross-examine her and then he said you will have a copy of that statement.
His Honour: Yes, but it is important that if you are going to suggest to [the witness] that she has changed her story, you put to her what she said in the previous statement. You have her statement there, do you?
[The appellant]: Yes
…
His Honour: …What page of the transcript do you say that she said something different Mr Rostom?
Interpreter: He is saying he doesn’t remember which paper is that, but he repeat again that she said that he was holding his hand upright and in the papers she said he was holding his hand behind his back.
His Honour: Can you find the piece of paper where you say that [the witness] said that he had the knife behind his back; which piece of paper are you talking about?
Interpreter: The first time they give their statement to the police.
His Honour: I see. Is that a statement dated 6 November? Perhaps we might show that to [the appellant]. Is that the document, Mr Rostom?
Interpreter: Sorry, are you asking me to search for the –
His Honour: No, I am asking him, is that the document he is talking about where he says something was said differently?
Interpreter: Yes.
His Honour: Can you have a look at that document and you see if you can see there something which is different. And, if it is, then we can read that out to [the witness] for her comment.
Interpreter: Do you want me to look at it and search which part is that? I am not sure if this is my role actually.
His Honour: It is not your role, it is his role to have a look at the document. He says he has seen a document where something different was said. I am just asking him if he can identify the document so that [the witness] can comment about it.
Interpreter: Your Honour, he is saying that he doesn’t read English and he is saying that those people who read the document for him, they are the ones who told him about this part of his daughter’s –
His Honour: I see. What do you want to ask [the witness] again?
[emphasis added]
Further examples of the difficulties that confronted the appellant are to be found in the following interchanges:
Interpreter: He is saying that this witness was always – all he is saying is wrong and is lie and he is asking you and the prosecutor to take the – that what she is saying now is absolutely not the same as what is written in her statements.
His Honour: Thank you for that, Mr Rostom, but insofar as you say that something is different from what was said in the statements, you should be saying to her, reading out to her what’s in the statement. Why do you say it is different?
Interpreter: Your Honour, he is saying that he asked the court to provide him with a transcript of the documents for him but did not get any answer to that.
His Honour: I see. Do you have any further questions of the witness?
...
Interpreter: …He is saying that how come that he is going to ask her more questions as long as what she is saying is totally different from what’s in the statement.
His Honour: Mr Rostom, I ask you again: insofar as you say [the witness] is saying something different from a statement, you produce the statement and we will read it out to her.
Interpreter: Again, I might be able to speak English very well but I don’t read English at all. And he is saying that the prosecutor, the way he is cross-examining the witness, as if he wants to present Mr Rostom’s – if he wants not only to kill his family but all the entire Australian people.
His Honour: Thank you again for that but the question I’m asking you is: do you have any questions to ask of your daughter?
The above examples demonstrate the difficulties that the appellant encountered during the trial. The appellant was aware of the importance of the inconsistencies. However, without representation and without a translation of the document he was hampered, and materially so, in the presentation of his defence.
Issues Arising
As earlier observed, counsel for the appellant emphasised that it was the defence case that the prosecution witnesses had conspired against the appellant. It was said that the witnesses were unreliable as they had given differing accounts of the events in prior witness statements. In order for the appellant to adequately present his defence and to demonstrate that the prosecution witnesses were unreliable, he needed to challenge those witnesses in cross-examination.
Counsel for the appellant emphasised that the appellant could not read English. As a consequence it was said that the appellant was unable to adequately cross-examine the prosecution witnesses. In these circumstances it was submitted that the trial was unfair.
Counsel for the appellant highlighted alleged inconsistencies between evidence given by crucial prosecution witnesses, and their prior statements. Counsel submitted that the appellant was unable to adequately or effectively cross-examine the witnesses about these inconsistencies. Counsel submitted that the Judge failed to adequately assist the appellant once informed that the appellant could not read English. Counsel contended that the appellant suffered material prejudice as a result.
Counsel for the appellant further complained that the prosecutor made remarks during his final address to the jury that were both inappropriate and inaccurate. Counsel complained that this was exacerbated due to the appellant being unrepresented and not understanding the proper limits of a prosecution address. He could not, it was said, in the circumstances, have been reasonably expected to respond.
Counsel for the appellant further submitted that the appellant during cross-examination asked questions in a form that allowed witnesses to introduce highly prejudicial material into evidence. The Judge, it was said, failed to adequately warn the appellant of the potential consequences of his questions. Counsel complained that the Judge did not inform the appellant that such evidence would not usually be received because of its prejudicial nature.
Counsel for the Crown agreed that the appellant had been deprived of an opportunity to use a legitimate forensic technique in establishing inconsistent statements. Counsel conceded that the Judge had erred in not inquiring of the appellant about his inability to have the statements translated and his inability to adequately cross-examine.
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 Appeal
The 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.
Brennan J referred to the distinction between the judge becoming involved as an advocate for an accused and informing the accused about “the rules of the game”. He observed that it was the duty of the judge to ensure that an accused was fully informed of the procedures of the court and about how to conduct his or her defence. The judge had a duty to ensure that an accused was not convicted on any but admissible evidence, and was not to be convicted unless able to adequately present their defence to a jury.
Brennan J commented:[4]
[A]n accused who elects to defend himself forfeits none of his rights thereby. If he has not had a trial according to law, his intransigent refusal to accept legal representation is no ground for dismissing his appeal either under the proviso or otherwise. The absence of legal representation imposes a heavier burden upon the trial judge and denies an accused the assistance of an advocate who can usually present an accused’s case more effectively than the accused himself; but it is a circumstance which is entirely neutral on appeal except in so far as it is relevant to the fairness of the trial. In this connexion, with respect, I should not accept the view … that the categories of advice which a trial judge should give to an unrepresented accused are limited to his rights to challenge jurors, to give evidence, to make an unsworn statement or to remain silent. Whether any and what advice should be given to an accused depends upon the circumstances of the particular case and of the particular accused. What can be said is that if it is necessary to give any advice, the necessity arises from the judge’s duty to ensure that the trial is fair. That duty does not require, indeed it is inconsistent with, advising an accused how to conduct his case; but it may require advice to an accused as to his rights in order that he may determine how to conduct his case.
Examples of the application of these principles can be found in many authorities.[5]
[4] MacPherson v The Queen (1981) 147 CLR 512 at 546-547.
[5] For example see: R v Gidley [1984] 3 NSWLR 168 at 181 (Hunt J); R v Zorad (1990) 19 NSWLR 91 at 99; R v White (2003) 7 VR 442 at [33]-[34] (Chernov JA); Hitmann v Police (1999) 202 LSJS 132; Gould v Police [2005] SASC 297 and Pezos v Police [2005] SASC 500; Friedricks v Police [2007] SASC 6; Tsakonakos v Police [2007] SASC 149.
In most cases it will be fundamental to a fair trial that an unrepresented accused be informed of their right to cross-examine. It may be necessary for a judge to explain that the defence case must be put to the prosecution witnesses. An accused who challenges a witness’ evidence is required to put his case to the witness, in order to challenge the witness in respect of evidence that is contested. Some explanation about how to deal with prior inconsistent statements may be required.
It is not a judge’s role to conduct the case for the defence. On the other hand, the judge must ensure that the accused knows the rules and is given some assistance as to the conduct of the defence. It may be difficult for the judge to balance the requirement to ensure that an accused is sufficiently informed to conduct the defence with the need to maintain the appearance of impartiality. However, at the end of the process there must have been a fair trial.
The assistance that a judge should provide an unrepresented defendant cannot be defined. The extent of the need for assistance will depend on the nature of the proceedings, the circumstances of the accused, and in particular the accused’s understanding of the proceedings.
The Authorities
In Lee Kun,[6] the Court of Criminal Appeal in the United Kingdom reviewed a trial in which an accused with no knowledge of English was convicted of murder. Lord Reading CJ, after referring to divergent practices of judges in relation to the translation of evidence, observed:
We have come to the conclusion that the safer, and therefore the wiser, course, when the foreigner accused is defended by counsel, is that the evidence should be interpreted to him except when he or counsel on his behalf expresses a wish to dispense with the translation and the judge thinks fit to permit the omission; the judge should not permit it unless he is of opinion that because of what has passed before the trial the accused substantially understands the evidence to be given and the case to be made against him at the trial. To follow this practice may be inconvenient in some cases and may cause some further expenditure of time; but such a procedure is more in consonance with that scrupulous care of the interests of the accused which has distinguished the administration of justice in our criminal Courts, and therefore it is better to adopt it. No injustice will be caused by permitting the exception above mentioned. Speaking generally, police court proceedings will have taken place and the evidence will there have been translated to the accused before he has to stand his trial on the indictment, so that at the trial he knows the case to be made against him. He can instruct his counsel upon it and he may leave his defence in counsel’s hands without having the evidence again translated to explain to him that which he already knows, and there seems no reasonable objection to such a course. If there should be a substantial departure from the evidence recorded in the depositions the judge would take care, even if counsel omitted to ask it, that the variation or addition should be translated to the accused, so that he might throw any further light upon the case. The importance of the translation of any new or additional evidence cannot be doubted.
[emphasis added]
[6] R v Lee Kun [1916] 1 KB 337.
In Kunnath,[7] the appellant, an uneducated man who did not understand English, faced a trial conducted in English. The evidence was not translated at the trial. The accused did not understand what the witnesses said. Lord Jauncey observed:[8]
It is an essential principle of the criminal law that a trial for an indictable offence should be conducted in the presence of the accused. … As their Lordships have already recorded, the basis of this principle is not simply that there should be corporeal presence but that the accused, by reason of his presence, should be able to understand the proceedings and decide what witnesses he wishes to call, whether or not to give evidence and, if so, upon what matters relevant to the case against him. … An accused who has not understood the conduct of proceedings against him cannot, in the absence of express consent, be said to have had a fair trial.
…
Their Lordships have no doubt that the course advocated by Lord Reading CJ in R v Lee Kun is a highly desirable one and should be followed wherever a foreign accused, not fully conversant with the language of the proceedings, is represented by counsel. If it is not followed, the risk will be great of a substantial miscarriage of justice occurring. In the present case there was no preliminary hearing, as in R v Lee Kun, and the appellant had therefore no prior knowledge of the evidence to be given by the prosecution. He did not understand the evidence when it was given with the result that the trial was for all practical purposes conducted outwith his presence. The appellant was accordingly deprived of the opportunity of a fair trial and a substantial miscarriage of justice occurred. The miscarriage would have been avoided if the trial judge had ensured that the evidence was translated to the appellant. Even if he had failed to take this step he should on any view have ordered a retrial as soon as the appellant made clear his lack of understanding in his statement from the dock.
[7] Kunnath v The State [1993] 4 All ER 30.
[8] Kunnath v The State [1993] 4 All ER 30 at 35-36.
In Ebatarinja v Deland,[9] the High Court determined that an Aboriginal man who was deaf and mute could not be committed for trial, as he did not understand that he was charged with murder. In reaching that conclusion, the Court observed:[10]
On a trial for a criminal offence, it is well established that the defendant should not only be physically present but should also be able to understand the proceedings and the nature of the evidence against him or her. …
If the defendant does not speak the language in which the proceedings are being conducted, the absence of an interpreter will result in an unfair trial. In R v Willie, Cooper J is reported to have ordered four Aboriginal prisoners to be discharged on a charge of murder when no interpreter could be found competent to communicate the charge to them.
Lee Kun was cited with approval by the High Court in Ebatarinja, and has been considered and applied in other Australian decisions.[11]
[9] Ebatarinja & Anor v Deland & Ors (1998) 194 CLR 444. (Gaudron, McHugh, Gummow, Hayne and Callinan JJ).
[10] Ebatarinja & Anor v Deland & Ors (1998) 194 CLR 444 at [26]-[27] (footnotes omitted).
[11] Johnson v R (1987) 25 A Crim R 433; De La Espriella-Velasco v The Queen [2006] WASCA 31.
While these authorities addressed concerns in the context of the translation of oral evidence, the underlying principle extends to the translation of relevant documents to an unrepresented accused who cannot read English. This is particularly so when one considers that the right to an interpreter is to ensure that an accused is not only physically present, but is also able to understand the proceedings and the nature of the evidence, so as to receive a fair trial.
The “presence” of an accused extends to an understanding of both oral testimony and written material relevant to the proceedings. As was observed in Ebatarinja:[12]
Given the modern purpose of committal proceedings, the words ‘in the presence or hearing of the defendant’ should not be treated as having only a formal significance. When regard is had to the purpose of committal proceedings and the context of the Justices Act, particularly s 110, those words are to be construed as meaning that the defendant is able to understand what ‘facts and circumstances’ are being alleged against him or her. The text of ss 106 and 110 and the nature of the proceedings indicate that it is insufficient that the evidence is given in the physical presence or hearing of the defendant.
Rather it is necessary “that the defendant, by reason of his presence, should be able to understand the proceedings and decide what witnesses he wishes to call, whether or not to give evidence and, if so, upon what matters relevant to the case against him.”
[12] Ebatarinja & Anor v Deland & Ors (1998) 194 CLR 444 at [28] (footnotes omitted).
Where an accused is represented, the necessary understanding will be generally achieved through the assistance of an interpreter and counsel. However, where an accused is unrepresented, as in the present case, in order for the accused to “understand the proceedings and decide what witnesses he wishes to call, whether or not to give evidence, and if so, upon what matters relevant to the case against him”, it is necessary for a judge to ensure that the accused can read and consider relevant written material in a language that he can understand.
An even greater difficulty arises, as in the present case, when an accused wishes to challenge the reliability of a witness’ evidence and put prior inconsistent statements to the witness. Before a witness can be cross-examined effectively upon a prior inconsistent statement, it is necessary to identify the statement, the occasion upon which it was made and the circumstances in which it was made; that is, whether it was written or whether it was an oral statement. If the statement is in writing, signed by the witness, it is necessary to identify the written statement, the occasion upon which it was signed, and to put that clearly to the witness.
The cross-examination on such statements can be difficult, even for an experienced advocate. Witnesses may become confused or obfuscate. It can be difficult to have a witness focus on a question, and often difficult to obtain responsive answers to cross-examination about prior inconsistent statements.
The Present Case
From the outset of the trial it was apparent that the appellant, despite his ability to speak and understand English reasonably well, required an interpreter to ensure that he fully understood the oral testimony so as to ensure that he received a fair trial. The appellant required assistance from the Judge as an unrepresented accused not fully fluent in English. The Court recognised that the appellant required an interpreter to ensure he fully understood the oral proceedings. However, adequate measures were not taken to ensure that the appellant could understand the documents relevant to the trial.
There were a number of prior inconsistencies upon which the appellant wished to cross-examine the witnesses. He was unable to read the statements which contained the alleged inconsistencies. He was relying upon his memory of what had been read to him by his solicitor, prior to the trial. He was unable to put the purported inconsistencies accurately to the witnesses.
The Judge was aware of the difficulty having been informed on more than one occasion, by the appellant and by the interpreter, of the problem. The Judge allowed the appellant time to have the statements translated. However, time did not resolve the problem. The Judge failed to follow up with the appellant whether the statements had been translated, and whether the appellant was able to read and understand what was in the statements.
Having given the appellant an opportunity to have the statements translated, the Judge should have made further inquiries of the appellant when the trial resumed. The appellant was entitled to assume the Judge was aware of the difficulties that he had experienced in attempting to have the statements translated. As earlier observed, the appellant had advised court staff of his problems.
No adequate assistance was provided to the appellant once the court was informed that he could not read English. While the appellant received the address of a translating service, the Judge did not make any further inquires as to whether the required translations had been made.
It should be noted that the trial Judge faced a particularly difficult task. The Judge was confronted with an accused who had an inadequate understanding of English requiring the use of an interpreter, and who was highly emotional. This was no doubt compounded by witnesses who also had an incomplete understanding of English, who also required the assistance of interpreters. This was then further compounded by the accused being unrepresented.
As a result of the appellant’s inability to read English, and the witness statements not being translated, the appellant was unable to adequately cross-examine witnesses as to prior inconsistent statements. This was particularly important as the appellant’s case was that witnesses had fabricated their evidence and had “set him up”. Inconsistent versions about aspects of the incident were important to an assessment of the witnesses’ credibility and reliability. The appellant suffered material prejudice as a result of his inability to read English. He did not receive a fair trial.
The appellant was charged with serious offences, he was unrepresented, and it clear that he struggled to understand the court processes. He could not read the witness statements. He was ill equipped to cross-examine about alleged prior inconsistent statements. The Judge needed to ensure that the appellant had an appropriate opportunity to consider translated written material, including in particular the witness statements.
It was clear to the Judge that the appellant could not read English and despite numerous attempts by the Judge to have him present prior statements to the witnesses the appellant was unable to do so apparently due to being unable to read the statements. It was self evident that there was a need for cross-examination with respect to prior inconsistent statements. This was important to the defence case.
The Judge was under an obligation to ensure that the appellant had the opportunity to understand the statements so as to be able to adequately question the witnesses and conduct his defence. The Judge failed to do so. The appellant did not receive a fair trial.
It would be a rare occasion in which a court would not set aside a conviction when the court determined that an accused person had not received a fair trial. This was a case in which the credibility of the witnesses was an important issue. Fundamental to the jury’s consideration of the case was whether the evidence of the witnesses was reliable. The appellant could not adequately cross-examine the witnesses. The Judge’s failure to ensure that the appellant was “present” in that he could understand the proceedings and the nature of the evidence against him has resulted in the risk of a miscarriage of justice. It cannot be said that no substantial miscarriage of justice has occurred.
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.
A review of the transcript as a whole indicates that the judge was alert to the obligations which the appellant’s unrepresented status created. It is also apparent that the judge took a number of steps with a view to addressing the disadvantages to which the appellant was subject in the course of the trial. The judge reminded the appellant on several occasions of the desirability for him to be legally represented. Before empanelling the jury, the judge took care to explain to the appellant, with the assistance of the interpreter, the charges, their seriousness, the prosecution’s burden of proof, procedural aspects of the trial and the facilities available within the Courtroom which were available to the appellant. The judge also explained clearly the limitations on his own ability to provide assistance to the appellant in the conduct of his case, ie, that he could not offer advice to the appellant about the way in which he should conduct his case, but that he would assist with procedural aspects. The judge told the appellant that if he (the appellant) was in any doubt about the legal consequences of a decision which he may have to make in the course of the trial, he should apply for an adjournment in order to obtain legal advice concerning that matter. The judge gave an outline of the accused’s rights and obligations with respect to the cross-examination of prosecution witnesses. In relation to possible prior inconsistent statements, the judge said:
If you think a witness is saying something that has been said different from what they said before, again, you should put that to the witness to give them an opportunity to agree or disagree.
The judge quite properly did not inquire of the appellant as to the nature of his defence. Accordingly, at this stage of the trial, the advice concerning the appellant’s obligations in that respect could be given in only general terms.
At the conclusion of those introductory remarks, the judge inquired of the appellant whether he had any questions. The transcript shows the following exchange then occurred:
Intrepreter: He is asking the prosecutor if his lawyer has many papers that belongs to him, if the prosecutor has these documents. He is saying that the prosecutor has to have every single copy of all the papers that the lawyer has.
His Honour: I don’t know what documents the lawyer has but certainly at the end of – at lunch time perhaps Mr – in fact the jury won’t be here until 11.30. Mr Rostom should try and ring his lawyers between now and 11.30 to try and get that file back. If the file is not handed to him then he can let me know at 11.30.
Later, the transcript records:
Interpreter: He is asking the lawyer for translator to translate his documents that were handed to him, all the documents he has.
His Honour: We will see about that. I’m not sure I can do that but we will do [our] best endeavours. I’ll have my associate speak to Mr Rostom in a moment.
In hindsight, one can see in these passages the appellant raising with the judge his wish to have available to him the prosecution declaration statements and to have a translation of those statements. It seems that the judge may not have understood the full effect of what the appellant was raising. The judge seems to have understood the appellant’s request as being more limited, ie, simply for access to the prosecution declaration statements. Other aspects of the transcript confirm that impression.
Once the trial commenced, the judge was solicitous of the appellant’s position. He inquired from time to time whether the appellant understood what had been said by the prosecution. He ensured that the interpreter assisting the appellant had sufficient pauses so as to be able to make his translations. He explained procedural aspects as they arose. The judge assisted the appellant in framing questions and, on occasion, asked on the appellant’s behalf the questions which he understood the appellant to be attempting to put. The judge allowed the appellant adjournments for the purpose of considering and formulating questions.
There were, however, further misunderstandings. The judge misunderstood a request by the appellant that the jury be given the prosecution declaration statement of his former wife (because it contained a statement inconsistent with her oral evidence) as a request that he himself be provided with the transcript of her evidence. The judge made arrangements to ensure that the appellant was provided with a copy of the transcript. In doing so, the judge must have proceeded on the basis that the appellant could read the transcript.
On the third day of the trial (and during the cross-examination of the second prosecution witness) the judge explained again to the appellant the process by which a prior inconsistent statement should be put to the witness. He endeavoured to help the appellant by ascertaining the inconsistency to which the appellant was then referring. The following exchange occurred:
His Honour: Thank you, alright. What page of the transcript do you say that she said something different, Mr Rostom?
Interpreter: He’s saying he doesn’t remember which paper is that, but he repeat again that she said that he was holding his hand upright and in the papers she said he was holding his hand behind his back.
His Honour: Can you find the piece of paper where you say that Ms Rostom said that he had the knife behind his back; which piece of paper are you talking about?
Interpreter: The first time they give their statement to the police.
…
His Honour: Can you have a look at that document and you see if you can see there something which is different. And, if it is, then we can read that out to Ms Rostom for her comment.
Interpreter: Do you want me to look at it and search which part is that? I am not sure if this is my role actually.
His Honour: It is not your role, it his role to have a look at the document. He says he has seen a document where something different was said. I am just asking him if he can identify the document so that Ms Rostom can comment about it.
Interpreter: Your Honour, he is saying that he doesn’t read English and he is saying that those people who read the document for him, they are the ones who told him about this part of his daughter’s –
His Honour: I see. What do you want to ask Ms Rostom again?
In this exchange, the appellant explains clearly enough his inability to read English. The difficulties which this presented for him in cross-examining by reference to prior inconsistent statements then became apparent. However, the judge permitted the trial to proceed. Later that same morning, and again on the morning of the following day, the appellant repeated his inability to read English.
There are some suggestions in the transcript indicating that the judge may have thought that the appellant had been directed by the Court staff, outside the Court itself, as to means of having documents translated. In any event, on the morning of the fourth day the judge himself told the appellant of the availability of an interpreting and translating service. At the conclusion of that day’s evidence (which was mid morning) the judge again advised the appellant to go to a translating service. By this time, however, the appellant’s former wife and four of his daughters had completed their evidence. It is evident that the appellant had wished to put prior inconsistent statements to each of them.
After the adjournment on the fourth day, the appellant went to various centres to have the declaration statements translated. He was unsuccessful in doing so, either because the services were not open, or because in one case, he could not afford the cost involved.
When the trial resumed, the judge did not inquire whether the appellant had been able to have the documents translated. Nor did the appellant raise his difficulties with the judge. Again, it seems that a misunderstanding may be the explanation. The appellant had told the Court Registry staff of his difficulties. The judge’s associate had been present at that time. The appellant appears to have thought that a communication to the judge’s associate was, in effect, a communication to the judge. In any event, without any further discussion about translation of documents, the trial proceeded on the fifth day and another daughter gave evidence. The transcript shows difficulties by the appellant in putting to her a prior statement said by him to be inconsistent with her oral evidence.
A comparison of the prosecution declaration statements and the oral testimony shows that there was a reasonable basis in some instances for the appellant’s claim of inconsistencies between the prosecution declaration statements and the oral testimony of the prosecution witnesses. The witnesses were never tested by reference to those prior statements. Had they been so tested, they may have accepted the accuracy of what they had previously said. Their answers would, in any event, have been relevant to an assessment of the credibility and reliability of their evidence.
In summary, the accused could not read or write English. He did have some awareness of the content of the prosecution declaration statements as they had been read to him by his former legal adviser. He considered, on hearing the oral evidence, that his wife and daughters had made statements which were inconsistent with their declaration statements. He had a reasonable basis for that belief. The appellant attempted to confront his wife and daughters with their prior statements but his inability to do so properly and precisely was impaired. Although the judge was attempting to assist, he appears to have misunderstood the initial statements by the appellant of his inability to read the documents. When the point was later clarified, the judge attempted to assist the appellant to obtain translations. However, by that stage unfairness in the trial had already occurred. In fact, it continued because the trial proceeded to its conclusion without the appellant having a translation of the prosecution declaration statements or the transcript which had been provided to him. He was accordingly unable to put the inconsistencies upon which he relied to the prosecution witnesses. The prior inconsistent statements were important in the context of his trial. The appellant was raising issues about the credibility and reliability of his former wife and his daughters. The existence of prior inconsistent statements was directly relevant to those claims.
In these circumstances, it is evident that a miscarriage of justice has occurred. That miscarriage has occurred despite the endeavours of the judge to assist the appellant during the course of the trial.
The appeal should be allowed and the conviction set aside. A retrial should be ordered. This makes it unnecessary to address the remaining grounds of appeal.
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