R v Saifoloi Afele

[2007] NSWDC 345

CITATION:	R v Saifoloi Afele [2007] NSWDC 345
JUDGMENT DATE:	14 November 2007
EX TEMPORE JUDGMENT DATE:	10 July 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	The apllication to exclude record of interview: s90 Evidence Act 1995 is refused.
CATCHWORDS:	Criminal Law - Interlocutory judgment - Application to exclude record of interview - intellelctual impaired Saoman requiring interpreter - initial comprehension difficulties - comes to understand terms of caution - role of support person - admissions voluntarily made
LEGISLATION CITED:	s.90 Evidence Act 1995 Reg. 26(b), 30 Law Enforcement (Powers and Responsibilities) Regulations 2005
CASES CITED:	Brennan, Patrick Donnelly, (1997) 96 AcrimR 432 Bunning v Cross (1978) 141 CLR 54
PARTIES:	Regina Saifoloi Afele
FILE NUMBER(S):	06/21/1080
COUNSEL:	P. Johnson
SOLICITORS:	Ms K Woodhurst Office of the DPP Parramatta

JUDGMENT

Application to exclude record of interview: S90 Evidence Act 1995.

HIS HONOUR:

1. Saifoloi Afele has been charged that on 16 December 2005 at St Mary’s he robbed Chiro Zadourian of his property, namely a wallet containing a sum of cash in circumstances of aggravation, those circumstances being that he inflicted actual bodily harm upon Mr Zadourian.

2. This is a special hearing to determine whether on the limited evidence the Crown can prove the commission of this offence. The accused was arrested at the crime scene and taken to the Penrith Police Station. It was determined he needed a Samoan interpreter. None was available and he was released later that morning without charge. That morning being 16 December 2005.

3. On 16 March 2006 police determined to arrest him. Initially they went to his address but were told by his mother he had just left for the Blacktown Police Station to report in relation a matter unconnected with this. The specific purpose for which he was arrested was not disclosed in evidence, although it no doubt should have been disclosed to the Accused. I say that because it’s not clear whether he had been specifically arrested for the purpose of questioning only or arrested for his alleged involvement in the offence.

4. After the offender had completed his reporting obligations at the Blacktown Police Station, he was then taken in - at least my understanding was he was then taken into custody by Detective Saywell and Cloey for the purposes of questioning. Saywell and Cloey were at the original crime scene in December, although they personally did not arrest the accused on that occasion.

5. On 16 March Elana Anson was the custody manager at the police station. Senior Constable Saywell’s evidence was that he was present when the custody manager spoke to the Accused. It was clear an interpreter was required. From what I have heard this morning that situation had actually been made clear to him on 16 December 2005. A Samoan interpreter was contacted. By telephone, using a speaker system, the interpreter explained the arrest. It is unclear to me whether the LEPRA cautions and summary of Part 9 were (then) explained over the speaker system. I am satisfied that they were later explained by the interpreter when he arrived at about 2 o’clock.

6. There is a conflict in the evidence as to the first time the question of an interview was discussed. Saywell’s first version was that the Accused was asked before an interpreter was there whether he wanted to be interviewed and the accused agreed to be interviewed. During cross-examination his evidence was to the effect that the only time the accused said he wanted to be interviewed was through the interpreter when speaking over the phone. When I sought clarification after cross-examination had been completed, Detective Saywell said in his earlier evidence he had made a mistake that the topic was raised when the interpreter was being used. Detective Cloey’s evidence was that he did not believe there was any conversation regarding the interview before the interpreter arrived, that was until 2pm. The attendance of a support person was arranged, Detective Cloey accessed the COPS system, I am uncertain what area he accessed, that is what particular screen or file was accessed, I am satisfied within the system there was a contact number for the accused’s sister. I am satisfied a call was made to her requesting her to attend the police station.

7. I reject Detective Cloey’s account that the sister arrived at the station claiming her brother would be scared. She denies attending. While she agrees she has a child and boyfriend, also nominated by Detective Cloey as being present, I am not satisfied that knowledge necessarily came to Detective Cloey on the day of the interview, that is the knowledge of the existence of the child and boyfriend. Detective Saywell made no mention of any early visit to the Accused’s mother but I am satisfied that such a visit did occur. Dt Saywell’s evidence was that a Detective Cloey rang the sister for the purpose of seeking her presence as a support person. While I accept police may ring a family of the Accused to let them know the Accused is there, it is usually done after an interview is completed rather than before. That is so that the interview can usually be conducted with the minimum chance or risk of disturbance.

8. On the other hand there are obligations imposed on police to obtain a support person for those who are non-English speaking and for those who have impaired intellectual functioning. Further it is to be remembered the interpreter arrived at 2pm, yet the interview did not start until 2.40. Detective Saywell agreed the interpreter arrived before the support person. The evidence on the voir dire leaves me with the distinct impression that once the interpreter arrived the Accused was explained his rights pursuant to LEPRA requirements. The Accused signed an acknowledgment that his rights had been explained. Yet it was only once the sister arrived that Detective Cloey went to meet her and escort her directly to the interview room. The interview thereafter commenced. During the introductions of those present, at questions 8 and 9, the accused’s sister is identified as a support person. Such a description is consistent with the category of persons who qualify as support persons pursuant to regulation 26(b) Law Enforcement (Powers and Responsibilities) Regulations 2005 . I note that Doctor Nielson notes the accused was able to write his surname with some difficulty. His signature on Exhibit 6 amounts to no more than three printed initials. I assume his signature on the earlier LEPRA acknowledgment was in a similar form. The custody manager ’s signature appears on Exhibit 6, I imagine both custody managers were present when the accused signed the respective LEPRA form in front of each. It is difficult to accept the police did not notice what Doctor Nielson had noticed the accused’s inability to sign his name.

9. Doctor Nielson took a history from the Accused. While taking the history he made the following observation. “He [the Accused] estimated he had been in gaol eleven months. (although he may have been referring to his prior limiting term)”. Doctor Nielson had access to the Accused’s custodial management record and his criminal history. Those documents have not been tendered before me on the voir dire. I have inferred the investigating police equally had access to those documents. The criminal antecedents appear to me to be a useful and important investigating tool. What is significant is that within police records there was clear evidence that at least when the limiting term was imposed, the accused must have had mental health issues.

10. I am satisfied the police, including the custodial manager Elana Anson had good grounds for suspecting, and reasonably did apprehend the accused was struggling in his comprehension because of intellectual difficulties. I reject the evidence of Detective Cloey that he believed the only difficulties the accused was facing in the interview were related to language interpretation.

11. An analysis of the questions asked in the interview supports this conclusion. “It is to be remembered Detective Cloey was able to and indeed from time to time did ask questions in the interview. I’ll come back to that in a moment. Questions 14 to 20 constitute the usual declaration of the nature of the enquiry, caution, announcement of recording and means of the Accused accessing copies and a request for his full name. All questions were answered responsively and positively. However at question 23 for reasons that could only be related to a heightened concern for the needs of the accused, the interviewer takes a new attack, seeking the ages of the support person, the interpreter and the accused. At question 31 the interview comes back to the accused’s right against self in crimination, notwithstanding that he had agreed earlier that he understood that right.

12. What accounts for this change are two answers given by the accused. At questions 20 and 21 I think they were. Questions 21 and 22 claiming he could not remember his address and could not remember his date of birth. I am satisfied those two answers reminded the interviewer of the importance of ensuring the interviewee understood his rights. Both police claim in evidence before me the issue was one of interpreting and language difficulties. Yet during that whole time not one question came from Detective Cloey in respect of any interviewing problem in terms of interpretation. Nor subject to one matter, was the interpreter questioned by Detective Saywell. When the accused told police he didn’t understand (questions 36 to 45. 47 to 49 53, 54 and 55) the solution for the police is seen to be the custodial officer coming back to explain the accused’s rights again. There does not appear to be any criticism or direction to the interpreter. Indeed, the very same interpreter is taken down to the custodial officer to again assist the custodial officer to explain the rights.

13. There is only one interchange between the interpreter and the police, questions 48 and 49 at this stage at least, when the interviewer was right and the interpreter was wrong. Significantly the correction on that occasion came from the accused.

14. True there was some confusion because the Samoan word for “no” lear as best I can pronounce it sounds like the slang word for “yes” yeah. But that was not an interpreting problem but rather an audio perception problem.

15. Although the accused’s sister makes complaint about the conduct of the interpreter, her evidence is not embraced by accused counsel. It is not supported by the visual images of the interview (as for instance her claim the accused was shaking his head in the negative) and ironically may have been caused by the similarity of sounds that I have just referred to.

16. Moreover the police in the interview rely upon the fact that the interpreter interpreted the LEPRA summary form read out by the custodial manager (see questions 38 to 44).

17. The evidence above has been reviewed in some detail to expose my reasons for holding the interviewing police at very least had reason, to believe the accused may have limited intellectual problems. That they returned the accused to the custodial manager for a re-reading of the LEPRA form within an hour of that task having been earlier completed, is powerful evidence that intellectual capacity and not language translation was the problem. I am fortified in that view by questions 79 to 81. They were about the accused’s capacity to understand [comprehend]. That is what was driving the interviewer’s questions. What flows from all this that the Accused was entitled to have a support person present, not only because of his vulnerability arising from his non English speaking background but also because of his obviously impaired intellectual functioning.

18. Sergeant Anderson has not been called. But for reasons I have given I am satisfied the investigating police were aware and sought to cope with the accused’s intellectual impairment. They had a duty to inform Sergeant Anderson of it, assuming for the moment she may have been unaware of it. I have no reason to think they shielded Sergeant Anderson from this knowledge. In any event I regard the intellectual impairment (something a custodial officer would be looking at arrestees to assess) as so obvious it would have been noted.

19. It was for this reason that the Accused’s sister was contacted. Regrettably she was not informed of her role. That was an oversight, whether that oversight occurred because change of shift, time was approaching or for some other reason is unclear. Nor does it really matter. The accused was entitled to have his support person informed of her role by the custody manager (regulation 30 Law Enforcement (Powers and Responsibilities) Regulation 2005. The failure constituted unfair conduct towards the accused. However there is a difference between that unfairness and the question of whether it would be unfair to the accused to admit the record of interview.

20. At question 55 the accused agrees he knew he didn’t have to talk to police if he didn’t want to. And see later question 107. Question 55 occurs, of course, before the interview is adjourned and question 107 occurs subsequently.

21. In the course of the review of the caution and summary of Part 9 of the LEPRA Act (I’ll call it) the Accused was reminded that anything he said or did may be used in evidence. True that proposition was contained among a number of other items, several of which had no real relevance to the accused’s situation of preparing his knowledge for his rights and entitlement at point of interview. He was asked in the interview “while you were down there did he read out the caution and summary of Part 9 to you - your rights”. He agreed that that had been done.

22. At questions 73 and 74 he agreed he understood (a) he was not obliged to answer questions unless he wished; (b) what he said was being recorded; (c) what was recorded may be used in evidence.

23. The accused was taken to the same topics at question 111 to 112, on this occasion though it is in the context of the specific allegations of the St Mary’s incident having been brought to his attention. While there is no audible reply to question 111 he had earlier replied “yes” to the same question and he appears to be following the conversation at 112 to 115. A final caution is given at question 316 and 317. His answers appear responsive.

24. In all I am satisfied that by the time Q115 had come and gone he did have sufficient understanding of the three propositions, namely that he was not obliged to answer questions, that what was being said was being recorded and also that what was being recorded might be used in evidence.

25. I am also satisfied the interviewer genuinely believed by question 115 that the Accused understood each of the three propositions contained in the caution. I am satisfied the Crown has proved the accused knew he did not have to answer, knew his answers were being recorded and at some level knew they could be used in Court.

26. The analysis that I have done has not been conducted in a vacuum, I am aware that the accused had had dealings with the police before. The “Bankstown” matter, the “limiting term” matter and his COPS record all point to that. The evidence however, that is the evidence on the voir dire however does not disclose whether he had been interviewed before.

27. Having watched the interview and bearing in mind the findings I have just made, I am satisfied his response to questions 132 to 335 which constitute basically his version of the events at St Mary’s were voluntarily given.

28. I return now to the role played by his support person. Her evidence is that she attended the police station at the request of the police. She was told they were going to interview her brother. She is unsure whether her boyfriend and child attended; although her first response was that they did not. She thought she was there to support her brother’s case. She heard herself referred to by the interviewer as a support person. It is likely she was told before she entered the interview room that she would be a support person. My view is that occurred at least when she was first contacted. She was not told by the custody manager of her role.

29. During the interview she thought there were times when the Accused was confused and there were times when she thought the interpreter was pressuring him to answer “yes” when he was saying “no”. There were times she said when she felt like speaking out but thought she was not allowed to. She thought the interview was just between the police and her brother. She thought he didn’t want to go through with the interview because she saw him shaking his head in the negative and she interpreted that as meaning that he was unhappy at being interviewed. If she had spoken up she would have said the interpreter was pressuring her brother to answer in a way he did not wish to. That is she would have complained about the interpreter.

30. Her observation that there were times when the Accused was confused is correct. That was obvious at the commencement and early stages of the interview. The interviewer was clearly aware of the confusion as a consequence of the confusion the interview was stopped so that a second attempt could be made to have the Accused understand the terms of the caution. Upon resumption the interviewer sought to satisfy himself and indeed did satisfy himself that the Accused did understand the caution. That is he sought to establish the Accused was no longer confused. I have held there was sufficient understanding of the caution for the Accused not to have been prejudiced. Thus I am satisfied there is no unfairness arising from the absence of any complaint by the support person in respect of the Accused’s confusion.

31. The support person’s second issue was the quality of interpreting and to the alleged unethical behaviour of the interpreter, I am satisfied no pressure was put on the Accused by the interpreter. No complaint has been made by the Accused, or those appearing for the Accused. At the commencement of these proceedings, I noticed the court interpreter and the record of interview interpreter were one and the same person. I asked the parties whether that presented any problem. It did not. I am sure had there been any allegation being made by the accused, or his legal representatives against the interpreter, I would have been informed of it. I regard the support person’s complaint against the interpreter as unfounded. I do not regard the Accused experiencing any unfairness at the hands of the interpreter. It would follow from that, I do not regard the Accused as experiencing any unfairness as a consequence of the support person feeling unable to complain about the interpreter. Whether it be about his interpretations or about his unethical alleged behaviour.

32. Although I have held there was an initial unfairness to the accused, in his support person not being told of her role by the custodial officer, that unfairness did not translate into any unfairness in the interview.

33. The application for the exclusion of the interview is made pursuant to 90 Evidence Act1995 . Section 90 is in the following terms:

90 discretion to exclude admissions.

“In a criminal proceeding the court may refuse to admit evidence of an admission or refuse to admit the evidence to prove a particular fact if :


(a) the evidence is adduced by the prosecution and:

(b) having regard to the circumstances in which the admission was made it would be unfair to a defendant to use the evidence”.

In Brennan, Patrick Donnelly, (1997) 96 AcrimR 432 Hidden J reviewed an application in terms, which have a resonance for this case:

“The section is a statutory expression of the familiar common law discretion to reject confessional evidence when it would be unfair to use it against an accused at his or her trial...At Common Law the onus is on the accused to show that the evidence should be rejected on this basis. The question of fairness involves a consideration of all relevant circumstances, which may but need not include impropriety on the part of interrogating police. The effect of those circumstances on the reliability of the confession has long been considered a relevant matter...obviously [an] accused's mental state at the time of the admissions is a relevant matter.


In Parker, Gleeson CJ observed at 183; 286 “further even if the confessional evidence is admissible, the intellectual or mental state of the accused may in a number of possible ways go to the exercise of the trial Judge’s discretion to reject the evidence... It may for example touch upon the propriety of the means by which the confessional statement was obtained, the reliability of the statement itself and the fairness involved in permi In Parker Gleeson CJ observed at 183; 286 “further even if the confessional evidence is admissible, the intellectual or mental state of the accused may in a number of possible ways go to the exercise of the trial Judge’s discretion to reject the evidence... It may for example touch upon the propriety of the means by which the confessional statement was obtained, the reliability of the statement itself and the fairness involved in permitting the statement to be used against the accused”

When applying the principles his Honour was concerned with reliability; the intelligibility of the account given; capacity to deal with the interview situation - did the accused understand the questions; did the accused respond appropriately; did he appreciate his right to silence and semble the use to which the recorded words may be put.

34. To all of those criteria I would add that there was also a need to satisfy oneself that the answers were freely and voluntarily given. I am satisfied in this record of interview all of those criteria mentioned above have been satisfied. Put another way, the defence has failed to establish that having regard to the circumstances in which the admissions were made it would be unfair to the accused to admit the evidence.

35. For completeness I have held the accused was entitled to have his support person informed of the nature of her role pursuant to regulation 30 of the LEPRA Regulations 2005. No one has sought to argue that the interview was obtained improperly or in contravention of an Australian Law pursuant to section 138 of the Evidence Act. Nonetheless for the purposes of this judgment I am prepared to assume it may have been , so that I can record had I made such a finding, I would have considered the desirability of admitting the record of interview outweighed the undesirability of excluding it.

36. My reasons for so doing include the absence of any unfairness, to the defence in admitting it (to which most of these earlier remarks are addressed). I would also have resolved the tension between the unlawfulness or impropriety (assuming it to be so) and the desirability of prosecuting those responsibly alleged to be guilty of crimes (see Bunning v Cross (1978) 141 CLR 54).

37. In all the circumstances the application is refused.