Sesay v The State of Western Australia
[2007] WASCA 268
•7 DECEMBER 2007
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SESAY -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 268
CORAM: WHEELER JA
PULLIN JA
LE MIERE AJA
HEARD: 17 OCTOBER 2007
DELIVERED : 7 DECEMBER 2007
FILE NO/S: CACR 25 of 2006
BETWEEN: ROBBINSON UMARU SESAY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :HASLUCK J
File No :INS 68 of 2006
Catchwords:
Appeal - Conviction - Wilful murder - Absence of an interpreter - Self defence - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: Ms C Barbagallo
Solicitors:
Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
De la Espriella‑Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
WHEELER JA:
The trial
In February 2006, after a trial, the appellant was convicted of wilfully murdering Hannah Rebecca Sesay, his estranged wife. It was common ground that the deceased died of blood loss occasioned by a number of penetrative knife wounds to either side of her neck. She had received a total of 46 wounds, approximately 21 of them being stab wounds to the neck and the remaining wounds being either stabs or cuts variously to the left arm and shoulder, hands and abdomen. It was also common ground that the appellant had been present at the deceased's home on the morning of the day on which she died and that he had been present when at least one of her injuries was incurred. The issue at trial was whether he had deliberately caused any of the wounds to the deceased and, if he had, whether he had acted in self‑defence and the intention with which he had stabbed her.
The appellant and the deceased had been married and immigrated to Australia from Sierra Leone, together with their two sons and one of the deceased's sons from a previous relationship, who was called Darlington. The appellant was the father of two of the children. By the time of the deceased's death, the appellant and the deceased had separated. The deceased had applied for a violence restraining order, and an interim order was served on the appellant on 1 August 2004. It was later negotiated, by consent, to a misconduct restraining order. That final misconduct restraining order was served on the appellant on 4 November 2004. Witnesses gave evidence at trial of the violent nature of the relationship between the appellant and the deceased.
On the morning of 11 November 2004, the two children of the deceased and the appellant left for school. The deceased's son, Darlington, was asleep. The appellant rang one of his children when that child was on his way to the bus stop and asked him where he and the others were. It was Darlington's evidence that, shortly after 8 am, he was woken by a phone call. While he was on the telephone, he heard screaming from outside in the back garden. He looked out of the bedroom window and could see his mother lying on the ground from the waist down, but could not see anything else. He ran downstairs and saw a person dressed in black and wearing a black mask kneeling on his mother's back, forcing her head into the ground with one of his arms near her throat. He saw a knife poking out the side of her hair. Darlington grabbed the person from behind and tried to pull him off his mother. The mask came off and Darlington recognised the appellant. The appellant was wearing black gloves and had a knife in his hand. Darlington ran to the neighbours for help. He called the police and returned with his neighbour. The appellant was still in the backyard.
The neighbour who accompanied Darlington gave evidence at trial that Darlington seemed frightened and upset, rather than angry, and that the appellant was calm, did not raise his voice and carried a bag with him. Knives were located at the scene, and there was evidence from all of the children about whether or not they recognised the knives and in whose possession they had previously seen them.
The appellant's account was that there had been no domestic violence between himself and the deceased except for one incident in Australia in April 2002. On 11 November 2004, he said that he went to her house to thank her for lifting the restraining order which, he said, she had told him she would do. When he got there, she was in the backyard. However, after some initial conversation, she started screaming at him, "speaking words of jealousy" about another woman. She accused him of disgracing the family and was pointing a knife at his face. He attempted to pull the knife from her and suffered a stab wound to his palm and she then pulled it in a way which "got" his finger. She was still upset. He grabbed her wrist, with the knife in her hand, and shook her hand so that she would drop it. As they grappled, they fell down. He said he did not even know the knife stabbed her at that time.
After he managed to get up, he saw the blood coming from her neck. He tried to put pressure on the cut where the blood was coming out. He called out to Darlington, who came out and met him. He told Darlington to go inside and call an ambulance. He maintained pressure on the deceased's wound until he thought the ambulance had arrived, at which point he left. In his evidence, he said that the last words he spoke to her were, "Darling, the ambulance are here now. They are professionals. They will look after you". He kissed her and left. He was not responsible for any of the other wounds. He did not know where they came from. It was, however, his evidence that the deceased and Darlington had not been getting on.
The absence of an interpreter
The sole ground upon which leave has been granted is the following:
The learned trial judge's discretion miscarried when he refused an application by the appellant to have an interpreter present throughout the trial to translate proceedings to him, such that he did not receive a fair trial and, as a result, there was a miscarriage of justice.
Particulars
1.The appellant was born and educated in Sierra Leone.
2.His native tongue was Creole from Sierra Leone.
3.The appellant could only converse in English in ordinary, everyday terms and conversation.
4.The appellant could not understand and follow the higher level language present in the Court proceedings.
Precisely what "Creole" was is not entirely clear. His Honour the learned trial judge sought to clarify, during pre‑trial submissions, whether it was a form of French or a form of English. Counsel for the appellant, having taken instructions, responded, "He tells me French is - he comes from a neighbouring country and I would assume that that might be the previous Congo, but there's a mixture of English as well, so at the end of the day it's just a mixture" (green AB 4).
The impression given by the ground of appeal is that it is asserted that his Honour the learned trial judge applied the wrong test in relation to the application for an interpreter to be available. That is, it seemed to this court, on a first reading of the ground, that the point which was attempted to be made by the particulars was that a person who could converse in English in "ordinary everyday terms", might, nevertheless, not be able to follow the language to be used at trial. As that point was developed in submissions, I understood it to be suggested that it was necessary for the appellant to be able to follow not only the evidence, but any exchanges between the bench and counsel, which might involve quite complex legal concepts. However, although the court tried to clarify it with counsel a number of times, it is still unclear to me whether this is what counsel for the appellant really wished to assert. At other points in the submissions, he suggested that his Honour applied the correct test, but made errors of fact which overstated the appellant's ability to understand English. At yet other points, counsel sought to refer to the transcript of the trial. That transcript would not assist in establishing whether his Honour had erred in making his preliminary ruling at the voir dire about the lack of need, as his Honour perceived it, for an interpreter; rather, that would go to a proposition that the trial miscarried because, whatever his Honour's view at the voir dire, the course of the trial demonstrated that the appellant in fact was unable adequately to understand the proceedings and to express himself.
It is perhaps fair to observe that the difficulty of clarifying the ground illustrates the problems which can be encountered, even by those for whom English is their first language, and even for those familiar with sophisticated legal concepts, in communicating in areas of subtlety and complexity. In order to avoid any doubt, I will deal, albeit briefly, with each of the three possible alternative contentions.
The reason why an accused person who has an inadequate command of English requires an interpreter, and the ways in which an absence of an interpreter, where required, or inadequate interpretation, may cause a miscarriage of justice were considered in some detail in this court in De la Espriella‑Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291. The important principles which seem to emerge from that case are as follows. The right to an interpreter is necessary so that an accused person can hear the case against him or her and has an adequate opportunity to answer it. In "answering" the case made against an accused, an ability to use everyday English, sufficient for making purchases in a supermarket or catching a bus, may not be adequate. That may, in some cases, be because the concepts involved in a trial will be more complex and sophisticated, and it may also be, on occasion, because it is more difficult to recall and to cope with the subtleties of a relatively unfamiliar language in situations of particular stress. The demeanour of an accused person, and the precise language used by an accused person, will generally be a less reliable guide to honesty and accuracy where that person is speaking in a language which is not the person's first language, or a language with which the person is not particularly familiar. However, those considerations cannot be excluded as matters which a jury may take into account, so that, although of less importance, demeanour and language will retain some significance. For that reason, it is desirable that the jury should be able to hear the accused first‑hand, rather than through an interpreter, if that can be done without interfering with the ability of the accused to answer fully and in his or her own words the State case.
In short, it is clear that there is no universal rule or simple test which will establish whether an interpreter is required in any particular case. It will be a matter for the assessment of the trial judge, having regard to the issues in the case, whether the accused is represented or not, and the judge's assessment of the ability of the accused both to understand and to speak in English. I would add that it is plain from reading transcripts of many trials, and from hearing the submissions of those convicted persons who wish to (or have to) conduct their appeals in person, that many persons accused of criminal offences, whose first language is English, have difficulty in expressing themselves with clarity and in understanding sentence structures of any complexity or sentences which involve unfamiliar concepts, including legal concepts. If an ability to understand high level and complex language were a prerequisite for a fair trial, many accused persons could never be tried at all.
Against that background, I turn first to the way in which his Honour directed himself about the issue of the need for an interpreter. His Honour considered whether the trial was one in which a good deal would turn on technical matters (perhaps about the use of a firearm or implement of some kind), or whether the narrative was "fairly straightforward" with evidence of a "fairly uncomplicated kind". His Honour noted that the basic obligation was to ensure that the accused received a fair trial and that one factor in the question of whether a trial was fair was the factor of comprehension. He considered that his discretion concerning whether or not an interpreter should be ordered was to be exercised by "erring on the side of caution" (that is, as I understand it, by ordering an interpreter if he had a doubt on the subject). However, in circumstances where an accused was represented, had some basic understanding of English, and where, if necessary, the trial was interrupted or adjourned in order to ensure that he comprehended what had taken place, or would take place, an interpreter might well be unnecessary. His Honour noted that it was the experience of many judges that often when an interpreter was provided, the interpreter was referred to at the beginning, but that as the trial proceeded it became relatively clear that the accused did not require one. Neither counsel took issue with these remarks made by his Honour during the course of pre‑trial argument, which later formed the basis of his Honour's ruling concerning an interpreter. In my view, there is nothing in any of the matters to which I have referred to suggest that his Honour misunderstood his function or failed to have regard to any relevant consideration.
Turning to the facts, it seems to me to be plain that it was established at the voir dire that the appellant had a reasonable command of English and would have been able to follow the proceedings in this particular trial quite adequately. First, it is clear that the appellant had been communicating with his counsel in English without the benefit of an interpreter. His counsel's view was that the appellant's English was "not bad" (green AB 12). He quite properly advised his Honour that "he understands me and I understand him". He advised his Honour that the appellant was coherent and could tell his story (green AB 26). After his Honour had spoken to the appellant directly, counsel confirmed that position, and noted that the appellant's wish for an interpreter stemmed in part from advice given to him by others who had spoken to him while he was on remand.
His Honour examined the appellant, on oath, about his ability to speak English and about the reason for his wishing to have an interpreter. Counsel on the appeal referred to a number of responses by the appellant which, in his submission, demonstrated that he did not have a good command of English. However, it seems to me that, when that examination is read as a whole, it amply justified his Honour's conclusion. The appellant, in response to questions, explained his family circumstances, where he grew up and went to school, and whether he had spoken English at school. It was clear that he had spoken Creole "most time". He was in the army for 20 years in Sierra Leone, working in the library doing documentation, keeping records and so on. Some of those records were in Creole, some were in English. He was asked whether, by the time he left school, he could read English and he agreed that he could. His supervisor in the army spoke English. He spoke to senior officers in Creole, but it appears that they would speak English, at least some of the time. He explained why he left Sierra Leone and that when he came to Australia, he started working as a security officer and that in that job, he did not have problems in talking in English to his boss or understanding what he was required to do. He did not speak much to members of the public, although he did speak to them on occasion.
His Honour made this observation to the appellant: "As I sit here, you and I seem to be talking quite well. I have a feeling you understand what I am saying and you think about your response and you answer my questions. So I understand that you can talk quite freely in English. Is that correct?" The response of the appellant was: "The English, the way you talk to me now, I understand." The appellant was able not only to answer questions in the literal sense, but to understand the point of the question and respond to that. For example, his Honour asked if he were to ask what the appellant did yesterday in terms of where he went, what time he had meals and so on, would the appellant be able to tell him in English in some detail. The response was, "Small. Small I be able to tell you. The English - what my friend tell me, the English, the trial English is different from the English I talk to you. So they say if I make mistakes I would get big gaol".
His Honour's view, in effect, was that the appellant had a command of day‑to‑day English and that his command of English would be sufficient for him to comprehend what was being said by other witnesses about the central events under consideration and to tell his own story, should he wish to do so. There is nothing from the materials in the voir dire which suggests that his Honour was in error in that respect.
Finally, I turn to the matters referred to by the appellant's written submissions, supplemented by certain references in the oral submissions, which it is suggested demonstrate that the appellant, in fact, lacked the ability which his Honour had attributed to him, so that the trial miscarried. In relation to the majority of them, it appears that they may reflect points in the trial at which either the appellant or counsel was speaking softly or indistinctly, so that they were not able to hear each other properly, rather than that they were not able to understand each other. At some points, it is not clear whether the difficulty is one of hearing or of understanding, but at those points it appears that the appellant understood the question put to him once it was either repeated or replaced with a different question aimed at the same issue. I deal here only with those page references which do not appear to me to be explained by a difficulty in hearing or comprehension of that kind.
At ts 567, at point D, it does not seem to me that there was a difficulty of comprehension on the part of the appellant; rather, as is often necessary in trials, it was necessary for his Honour to clarify for the transcript what was being indicated by the appellant when he was pointing to something on an exhibit. At ts 568, at point A, it is true that the appellant does not answer the question asked of him in a literal sense. Rather, as many witnesses do, he attempts to answer what he perceives is the point of the question. The relevant exchange is:
You agree with me that Hannah [the deceased] is shown in those photographs?‑‑‑Pardon?
You agree with me that Hannah is shown lying down, face down, in those photographs?‑‑‑Not laying down - I never leave her lying down. She was not laying down.
At ts 570, at about point A and following, it appears that the appellant did not quite understand what was being put to him. However, neither do I. It is not entirely clear whether what is being put is a summary of his earlier evidence, or a question about his state of mind. The relevant question is: "According to you, you have got no idea of how that wire mesh came to be there?" The appellant's response was that he understood from the prosecution brief that one of the police officers had removed the mesh. That seems to me to be a sensible attempt to grapple with the question. At ts 556, at point A, the appellant did break into his native tongue in attempting to describe his clothing, and precisely what he was saying could not be clarified. However, it seems reasonably clear that his difficulty was not that he was unable to communicate in English as a general rule, but simply that there was no English word for the relevant items of clothing, there being no items of clothing usually worn by men in Australia which corresponded to the clothing he was describing.
The only clearly idiosyncratic use of English which has been pointed to by the appellant's counsel is that which appears at ts 559. During the course of a long and uninterrupted account of what had occurred when he alleged that he encountered the deceased and she began speaking jealously to him and threatening him with the knife (which account extends over several pages of transcript), the appellant said this:
Well, she become - locked hand. She was still holding the knife. Then I said to her, "You really want to kill me because of your boyfriend or what?" It was a fun; it was a fun.
No‑one appears to have asked the appellant to clarify the expression "a fun". In context, it may be that the appellant was indicating that he was attempting to defuse a difficult situation by attempting to make a joke with the deceased. It does not appear to me, whatever the appellant meant at that point, that that single instance of apparently inadequate communication was such that the trial miscarried.
This ground of appeal must fail.
Self-defence issue
Proposed ground 1 of the appeal, in respect of which leave has not been granted, has been referred to this court to determine the question of leave, together with, if leave is granted, the appeal. That ground asserts that his Honour erred when he told the jury that there was insufficient evidence to support the defence of self‑defence.
The short answer to that ground is that his Honour did not tell the jury there was insufficient evidence to support the defence of self‑defence. In any event, had he done so, he would arguably have been correct. That is because, although the appellant said that he was threatened by the deceased, and although his account was of a struggle in which he was attempting, in his own defence, to disarm her, it does not seem at any point to have been his evidence that he deliberately stabbed or attacked her in an attempt to defend himself. Rather, it was his evidence that,
during the course of that struggle, either he had accidentally stabbed her, or she had somehow accidentally stabbed herself. That evidence, of course, related only to the one stab wound of which he claimed to be aware, and not to the other 45 which he said were in no way connected with him.
However, whether or not self‑defence was fairly open, his Honour left it to the jury. The cause of the complaint in proposed ground 1 is a comment by his Honour that (ts 651):
Now, I pause here to remind you that the evidence as to what the accused believed is very scant. His evidence is open to the interpretation even if you accept his account of what took place that when his wife pointed the knife he moved to restrain her, not in the belief that he had to defend or preserve himself from an attack but in the belief that she needed calming down. Moreover, he did not say in evidence directly that he got control of the knife. Thus it might be hard to find that a fatal wound was caused by an act of self‑defence; that is, if the deceased remained in possession of the knife throughout.
That comment was open on the evidence.
His Honour gave the usual directions to the jury about the comments which he made concerning evidence being only to assist them, if they found those comments of assistance. He told them that the jury themselves were the judges of fact and that the jury was not bound by his Honour's comments. It is not suggested that his Honour's direction in relation to the law of self‑defence was in any way inadequate.
I would refuse leave in relation to this ground.
I would therefore dismiss this appeal.
PULLIN JA: I agree with Wheeler JA.
LE MIERE AJA: I agree with Wheeler JA.
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