The State of Western Australia v Nardi
[2018] WADC 30
•1 MARCH 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- NARDI [2018] WADC 30
CORAM: LEVY DCJ
HEARD: 15 FEBRUARY 2018
DELIVERED : 1 MARCH 2018
FILE NO/S: IND KAR 19 of 2017
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
SPENCER MICHAEL NARDI
Catchwords:
Criminal law - Admissibility of evidence - Admissions made by accused during electronically recorded interview - Objections to evidence - Voluntariness - Breaches of s 137 and s 138 of Criminal Investigation Act 2006 (WA) - Fairness discretion
Legislation:
Criminal Investigation Act 2006 (WA)
Result:
Evidence excluded
Representation:
Counsel:
The State of Western Australia : Ms L J Avey
Accused: Mr A E Eyers
Solicitors:
The State of Western Australia : State Director of Public Prosecutions
Accused: A E Eyers
Case(s) referred to in judgment(s):
Collins v The Queen [1980] FCA 72; (1980) 31 ALR 257
McDermott v The King (1948) 76 CLR 501
R v Lee [1950] HCA 25; (1950) 82 CLR 133
R v Swaffield [1998] HCA 1; (1998) 192 CLR 159
The Queen v Anunga (1976) 11 ALR 412
The State of Western Australia v Gibson [2014] WASC 240; (2014) 243 A Crim R 68
Van der Meer v The Queen [1988] HCA 56; (1988) 82 ALR 10
Wendo v The Queen [1963] HCA 19; (1963) 109 CLR 559
Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1; (2010) 203 A Crim R 339
LEVY DCJ:
Introduction
The accused, Spencer Michael Nardi, stands charged on Karratha Indictment 19 of 2017 that on 27 August 2016 at Nickol he unlawfully did grievous bodily harm to Melisha Rose Alice Jones in circumstances where he was in a family and domestic relationship with her. The offence is alleged to have occurred at about 1:30 am on that day.
The accused was arrested and subsequently interviewed by police officers that same day. The interview was conducted by Detective Sergeant Simon Harrison (Det Sgt Harrison) and Detective First Class Constable Christopher Poore (Det F/C/C Poore) at Karratha Detectives Office. The interview commenced at 10:13 am and concluded 14 minutes later at 10:27 am. The interview was electronically recorded (the EROI).
The accused now challenges the admissibility of that interview. The accused's objection to the admission of the EROI is founded on the following grounds:
1.the admissions were not voluntarily made; and/or
2.the interviewing police officers breached one or more of the requirements set out pursuant to s 10, s 137(3) and s 138(2) of the Criminal Investigation Act 2006 (WA) (CIA) rendering the answers given by the accused inadmissible under s 154 of the CIA; and/or
3. the court should exercise its discretion to exclude the EROI on the basis that it would be unfair to the accused to admit the evidence.
Outline of the State's case against the accused
Broadly speaking, the State's case is that at the time of the alleged offence the accused and the complainant were living in a domestic relationship. They had been together for approximately six years. They ordinarily resided at 5A Simpson Street, Nickol. The complainant's mother, June Oliver, also resided at that address.
At about 1:30 am on 27 August 2016, the complainant was sitting in a chair outside the front of the house. She was talking to her cousin Carmen Melissa Hill. The accused walked out of the house and came over to where they were seated. He punched the complainant to the face with a clenched fist. The accused went back inside and went to sleep.
At approximately 2.00 am, the complainant was taken to Nickol Bay Hospital where she was seen by medical practitioners. Following an X‑ray and CT scan, the complainant was found to have undisplaced fractures to both sides of her face. There was a fracture in the left side of the body of the mandible, as well as one in the right mandibular condyle. She was also found to have suffered mildly displaced fractures in her nasal bones, as well as a laceration between her lower fourth and sixth teeth.
The complainant was transferred to Royal Perth Hospital. On 30 August 2016 she underwent surgery in relation to one of the fractures to her mandible. Multiple teeth were also extracted. According to one of the medical practitioners, the injuries were of such a nature that, if left untreated, was likely to have caused permanent injury.
The evidence relevant to the s 98 hearing
For the purposes of determining the issues raised by the accused, the State called three witnesses at the hearing. Those witnesses were:
•Det Sgt Harrison - interviewing police officer;
•Det F/C/C Poore - interviewing police officer; and
•Ms June Oliver - the complainant's mother.
The State also tendered the following evidence:
•DVD of the EROI (exhibit 1)
•Prosecution Brief (exhibit 2)
•Accused's Criminal History (exhibit 3).
Detective Sergeant Simon Harrison
Detective Sgt Harrison has been a police officer in Western Australia for more than 20 years. Of those 20 years, he had spent approximately 16 years policing in regional areas of Western Australia. Some of the places he had worked as a police officer, both in uniform and as a detective, include: Bunbury; Geraldton, Mullewa; Yalgoo; Mount Magnet; Meekatharra; Karratha; Roebourne and Tom Price. His past policing experience also involved interacting with Aboriginal community members in places such as Cheeditha and Bellary Springs.
He was very experienced in dealing with people from different cultural and linguistic backgrounds. He had significant experience in interviewing suspects and witnesses.
According to Det Sgt Harrison, the majority of his work was in relation to the Aboriginal population. He estimated that he spent about 70% of his working life dealing with Aboriginal people.
Det Sgt Harrison was acutely aware of the provisions set out under s 137 and s 138 of the CIA. He was also very familiar with the Anunga Rules. He said that he followed the Anunga guidelines when he dealt with people from different cultural backgrounds. His focus was always to ensure that 'everything's done voluntary [sic] and fairly' (ts 62).
His experience had also taught him, particularly when dealing with Aboriginal people, that when speaking with police they might be embarrassed about their alleged behaviour. His focus was to 'break down the barriers' before interviewing them. He tried to use colloquialisms or words commonly used by Aboriginal people to simplify the process when speaking to Aboriginal people.
Prior to becoming involved in this investigation, he had utilised the services of a Korean interpreter with respect to the interview of a Korean national who was a person of interest in relation to a serious criminal offence.
Surprisingly, despite the fact that he had spent 16 years working in regional Western Australia predominantly with Aboriginal people, he had never used the services of an Aboriginal language interpreter.
Detective First Class Constable Christopher Barry Poore
Like Det Sgt Harrison, Det F/C/C Poore was stationed in Karratha at the relevant time. He had 10 years' experience as a police officer, including as a detective. Between 2008 and 2011, he was stationed at Newman Police Station in the Pilbara. There he gained experience in policing in the surrounding communities, including the Jigalong community where he had relieved for up to five months at a time. Jigalong was responsible for the whole Western Desert community.
He too was well versed in the Anunga guidelines which he applied when dealing with Aboriginal people. He was acutely aware of the need to provide an interpreter if one was required.
As a police officer, he had only once employed the services of an Aboriginal interpreter. This was when he had dealt with a juvenile, who he could tell 'wasn't understanding things due to a bit of a language barrier' (ts 78). This caused him to resort to the assistance of an interpreter.
June Oliver
Ms Oliver is the complainant's mother. During the course of her evidence, she referred to the accused as her 'son-in-law'. She had known him for more than 10 years. The accused had lived with her in Karratha.
Ms Oliver, only spoke English. Obviously, she only communicated with the accused in English.
She was aware that the accused spoke another language, but was not aware what language it was. She had heard him speaking the other language when he was with his own family.
The accused
The accused did not give evidence at the hearing. No evidence was called or tendered on his behalf. All of the information gleaned about him comes from the evidence that I have referred to above, particularly the EROI and the evidence of Ms June Oliver. Ultimately, I have limited information about the accused's background.
The accused is now 27 years old. He was 26 at the time of the EROI. He is an Aboriginal man. At the time of the alleged offence he was living with the complainant and Ms Oliver in Bidyadanga. He had also previously lived in Carnarvon.
He spoke both English and Kriol. Generally speaking, he spoke more Kriol than English. I am unable to determine whether his primary language is something other than Kriol. On the available evidence, English is, at best, his second language. According to Ms Oliver, she spoke to him exclusively in English.
It is of note that the interviewing officers did not ask the accused any questions about the level of his education. Nor did they ask him any questions about any employment that he may have had. Given some of the questions they asked him, for example what he may do if he went to Centrelink in Carnarvon (see page 5 of the transcript of the EROI), it seems that the police officers assumed that he was unemployed.
Questions directed to an interviewees level of education and employment are commonly asked by interviewing police officers. These sorts of questions are commonly designed to establish whether or not the person being interviewed is not only capable of understanding English, but potentially difficult questions or concepts that might arise during the interview.
I also note that the learned prosecutor submitted that the accused's criminal history was relevant on the basis that I could infer, given the number of criminal convictions recorded, that he was familiar with being cautioned by police and being provided with his rights. In the absence of actual evidence of what occurred on each occasion that he was dealt with by the criminal justice system, I am of the view that the only inferences I can draw from his criminal history is that he has previously been charged and convicted of criminal offences. No other inferences are reasonably available on the evidence.
The evidence of the lead up to the electronic record of interview
Although the accused was arrested shortly after the alleged assault, he was not formally interviewed until approximately 8 hours later. This delay was entirely appropriate given the accused's apparent intoxication at the time of his arrest.
Neither Det Sgt Harrison nor Det F/C/C Poore had met the accused prior to 27 August 2017. At approximately 7.30 am that day, Det Sgt Harrison introduced himself to the accused. He was conscious of complying with the Anunga guidelines. Consequently, he ensured that the accused was well rested, had eaten and spoke to him to 'gauge his understanding of the English language' (ts 64).
Det F/C/C Poore was introduced to the accused about 15 minutes before the interview commenced. He sat with the accused in the interview room whilst Det Sgt Harrison was arranging food for the accused. Detective F/C/C Poore spoke to the accused about general matters. They discussed the fact that the accused was from Bidyadanga, which was a place that Det F/C/C Poore was familiar with.
As a result of their discussion, Det F/C/C Poore formed the belief that the accused was 'quite fluent in English' (ts 79). In fact, he was of the view that the accused was as fluent in English as the average Australian who spoke English, and no other language. I note that although the EROI runs for less than 15 minutes, it is patently obvious that the accused's command of the English language is below the standard of an Australian native English speaker. Detective Sgt Harrison's opinion of the accused's English language ability was different to that of Det F/F/C Poore. He candidly accepted that his command of English was lower than that of the average Australian native English speaker.
Nonetheless, both Det Sgt Harrison and Det F/C/C Poore both believed that the accused had no difficulty in understanding not only the questions they asked of him, but more importantly, his fundamental rights as well as those rights set out under the CIA.
THE EROI
The accused answered every question asked of him during the interview. At no time during the EROI did he tell the police officers that he did not understand what they had told him or asked him. In fact, he positively indicated that he did understand. Nonetheless, for the reasons that follow, I am not satisfied on the balance of probabilities that he did understand the fundamental rights that he had at the time of the interview. I have come to this conclusion after considering the interview as a whole, rather than merely focussing on individual answers given by the accused.
The introduction and preliminary questions
At the start of the EROI, having introduced both himself and Det F/C/C Poore, Det Sgt Harrison informed the accused that the interview was being recorded. Before explaining the accused's rights to him and cautioning him, Det Sgt Harrison properly established that the accused was sober enough to be interviewed.
The accused's rights as an arrested suspect (s 137 and s 138 of the CIA) and the administration of the police caution
Whilst Det Sgt Harrison's speech is clear during the EROI, his delivery is fairly quick. The following exchange occurred after about a third of the way into the interview:
Det Sgt Harrison: So when the police spoke to you yesterday they woulda [sic] given you rights as an arrested suspect, and I'll go through those now, Spencer. So as an arrested suspect, um, you are entitled to the following. To any necessary medical treatment. So if you said I need to go to the hospital then I, I, you know, I'd look at taking you to hospital. Any reasonable degree of privacy from the mass media. So I'm not gonna [sic] parade you in front of anyone. To a reasonable opportunity to communicate, um, to communicate with a relative or friend to inform that person of your whereabouts. Now, you're, ah, people know where you are. So if you have a reasonable, if for any reason you are unable to understand or communicate in spoken English sufficiently, you will be assisted in doing so by an interpreter or qualified person. So, ah, a-, and again we'll talk about you're from an Aboriginal background. You've come from Badgingarra.
Accused: Bidyadanga.
Det Sgt Harrison: Bid –, Bidyadanga. Sorry, sorry. And then you, but you also live in Carnarvon, unna (Aboriginal colloquialism meaning 'Do you understand?')
Accused: Yeah.
It is obvious from the above that Det Sgt Harrison was doing no more than reading, almost verbatim, the wording of s 137(3) of the CIA. What Det Sgt Harrison did not do however, was to make clear to the accused that, if he (the accused) for any reason was unable to understand or communicate in spoken English sufficiently he was entitled to be assisted by an interpreter. Instead, the way in which it was left may have left the impression that the decision as to whether an interpreter was needed was a decision for Det Sgt Harrison to make.
Detective Sgt Harrison then went on to discuss what languages the accused spoke, and asked questions that did no more than establish that the accused was capable of conversing with people in English in his everyday life. The questions fell a long way short of establishing that the accused understood his important legal rights.
Detective Sgt Harrison then went on to deal with the accused's rights under s 138(2) of the CIA as follows:
Det Sgt Harrison: And, ah, and, ah, and if I see that you're not, you don't understand, I'm not gonna trick you, mate. It's all, that's all it is, Spencer. And you're to be informed of the offence which you have been arrested, sorry. I, I'll just go through that. So, spoken English sufficiently, you will be assisted in doing so by a fol-, interpreter or qualified person. So if I see that you, you, you don't understand what I'm saying, mate then we can organise an interpreter, but I think at the minute you're, you're spot on. You're to be informed of the offence which you've been arrested and any other fences that you are suspected of having committed, and go through that again shortly. You should be cautioned before being interviewed. Again, I'll go through that in a sec. And you have a reasonable opportunity to communicate or attempt to communicate with a lawyer. So those thi-, those rights are always there. Now, I wanna speak to you about something that happened last night. Obviously the police came to the house. It was at 5A Simpson Street. It happened about 1:30. Um, it's, it's an assault on your partner Melisha Rose Alice Jones. You been going out with her for six years. Now, she's ma-, she's told us something and that's why we wanna have a speak to you. But before I do that I've gotta caution you and say you're not obliged to say anything or participate in a record of interview unless you wish to do so. That anything you say or do, Spencer, will be recorded and may be given in evidence. Do you understand that? What does that mean to you? That sort of long, oh, that caution, what does it mean? When I say to you that you don't have to tell me anything, what, what does that mean? In your own words what does it mean?
The first half of the very long passage above, amounts to nothing more than informing the accused of those parts of s 138(2)(a), s 138(2)(b) and s 138(2)(d) of the CIA. Importantly, the language employed by Det Sgt Harrison was not only formal, but lacked the important quality of making it clear to the accused that what he was being told about were the rights that he had. Phrases such as: 'you're to be informed of the offence which you have been arrested' and 'spoken English sufficiently, you will be assisted in doing so by a … interpreter or qualified person' are not only confusing, but on their face tended to create an impression that what was to occur was that he would be provided with the assistance of an interpreter. Of course that did not occur.
So far as the caution administered by Det Sgt Harrison is concerned, it is of note that at the end of the long passage above, he asked the accused:
Det Sgt Harrison: When I say to you that you don't have to tell me anything, what, what does that mean? In your own words what does it mean?
In answer to the above question, the accused says:
Accused: [indistinct] you don't wanna tell people that.
Detective Sgt Harrison then attempted to explore the issue further with the accused as follows:
Det Sgt Harrison: If I ask you ten questions, Spencer, how many do you have to answer?
Accused:Not all of them.
Det Sgt Harrison: That's right. So, and whose right, i-, if you answer the question, whose choice is it to answer question?
Accused: Myself.
Det Sgt Harrison: That, yeah. Yeah, that's exactly it. Yeah. Now if Christopher asked you 10 questions how media have to answer?
Accused:Not all of it, yeah
Det Sgt Harrison: Yeah. But, um, it's your choice to answer the questions. You …
Accused:Yeah
Det Sgt Harrison: That's it, mate. Now, do you understand what the courts for, who is in a court? Who would be in a courtroom?
Accused:Ah, me.
Det Sgt Harrison: Yeah. And who else would be in there? Maybe a judge or something like that? Or - -
Accused:Judge, yeah.
Det Sgt Harrison: Yeah.
Accused: And a lawyer.
Det Sgt Harrison: Well, that's it. Yep, yet. You're spot on. Well, you don't have to answer no questions. That's, that's all it is …
Firstly, in answer to two separate questions about how many questions he was required to answer, the accused says 'not all'. No attempt was made by the officers to clarify what he meant. On their face, the answers the accused gave tends to suggest that he believed that he was required to answer some questions, but not all.
Secondly, there was no attempt to ascertain whether the accused understood that his answers to questions could be used in evidence against him. The fact that he may have understood that his conversation with the police officers was being recorded falls a long way short of establishing that he understood the privilege against self-incrimination. The fact that he understood that court proceedings may involve him, a judge and lawyer does not cure that defect.
The relevant admissions made by the accused in the interview
During the EROI, Det Sgt Harrison asked the accused fairly broad questions to the effect of what had occurred the previous evening. The answers given by the accused were essentially to the following effect:
•He had spent some time the previous evening looking for the complainant, but could not find her.
•He had gone to sleep at home.
•He awoke to the voices of the complainant and her cousin talking outside his window. This made him wild.
•He walked over to where the complainant was sitting and punched her complainant. He punched her once with a closed right fist.
•The complainant said nothing to him before he punched her. She swore at him afterwards.
The relevant law
Voluntariness
It is well established that admissions made out of court are not admissible in evidence unless they are made voluntarily: McDermott v The King (1948) 76 CLR 501, 511 (Dixon J). The prosecution bears the onus of establishing, on the balance of probabilities, that a confession has been made voluntarily: Wendo v The Queen [1963] HCA 19; (1963) 109 CLR 559, 572 and 573.
The word 'voluntary' does not mean volunteered. It means made in the exercise of a free choice to speak or be silent: R v Lee [1950] HCA 25; (1950) 82 CLR 133, 149. The question of whether an admission was made voluntarily necessarily focusses on the will of the accused. It requires an examination of all the circumstances in which the alleged admission is said to have been made, including the accused's personal circumstances such as age, background and psychological condition, as well as the general circumstances in which it is said to have been made. Voluntariness is not an issue to be determined by reference to a hypothetical standard. It requires a careful assessment of the effects of the actual circumstances upon the will of the particular accused: Collins v The Queen [1980] FCA 72; (1980) 31 ALR 257, 307 (Brennan J).
In The State of Western Australia v Gibson [2014] WASC 240; (2014) 243 A Crim R 68, Hall J at [162] noted that whilst the Anunga Rules are not law in Western Australia, 'they do give a very good indication of what ordinarily would be regarded as a fair interrogation: Webb v The Queen(1994) 74 A Crim R 436, 438 (Malcolm CJ). It is no doubt for this reason that they have been adopted in the COPs manual. Breaches of the Anunga Rules may be relevant to an assessment of the voluntariness of confessional evidence by an Aboriginal person in this State'.
In The Queen v Anunga(1976) 11 ALR 412 (from which the Anunga Rules have derived) Forster J made observations that remain relevant. I note that of the nine matters stipulated by Forster J, at least the first three were not complied with by the interviewing officers, either fully or in part. They are:
1.When an Aboriginal person is being interrogated as a suspect, unless he is as fluent in English as the average white man of English descent, an interpreter able to interpret in and from the Aboriginal person's language should be present, and his assistance should be utilized whenever necessary to ensure complete and mutual understanding.
2.When an Aboriginal is being interrogated it is desirable where practicable that a 'prisoner's friend' (who may also be the interpreter) be present. The 'prisoner's friend' should be someone in whom the Aboriginal has apparent confidence.
3.Great care should be taken in administering the caution when it is appropriate to do so. It is simply not adequate to administer it in the usual terms and say, 'Do you understand that?' or 'Do you understand you do not have to answer questions?' Interrogating police officers, having explained the caution in simple terms, should ask the Aboriginal to tell them what is meant by the caution, phrase by phrase, and should not proceed with the interrogation until it is clear the Aboriginal has apparent understanding of his right to remain silent.
I will return to the Anunga Rules later.
The Western Australian police Commissioner's orders and procedures manual (COPs Manual) incorporates much of what Forster J said in The Queen v Anunga. In particular, the COPs Manual specifically sets out what is considered to be best practice for police officers dealing with aboriginal suspects. It includes that police officers should not assume that Australian people speak English fluently or fully comprehend conversations in English especially in a policing context. This is particularly relevant when dealing with complex legal rights and principles.
Neither the COPs Manual nor Anunga Rules are law in Western Australia. They are not universally applicable to every case in which an Aboriginal person is being interviewed. The particular circumstances of each case needs to be considered on its merits.
Relevant law - CIA breaches
The relevant sections of the CIA referring to the need for an interpreter to be provided and a suspect's right to have an interpreter present during interview are as follows:
10.Informing people who do not understand English
If under this Act an officer is required to inform a person about any matter and the person is for any reason unable to understand or communicate in spoken English sufficiently, the officer must, if it is practicable to do so in the circumstances, use an interpreter or other qualified person or other means to inform the person about the matter.
137.Arrested people, rights of
(3)The arrested person is entitled -
(d)if he or she is for any reason unable to understand or communicate in spoken English sufficiently, to be assisted in doing so by an interpreter or other qualified person.
138.Arrested suspects, rights of
(2)In addition to the rights in section 137 an arrested suspect is entitled -
(d)if he or she is for any reason unable to understand or communicate in spoken English sufficiently, not to be interviewed until the services of an interpreter or other qualified person are available.
Section 10, s 137(3)(d) and s 138(2)(d) refer to the person being 'unable to understand or communicate in spoken English sufficiently'. The use of the word 'sufficiently' focusses on the degree of understanding held by the person. It needs to be considered in the context of what is actually being said at the time. Furthermore, it is important that it is made clear to a suspect that he or she has the right not to be interviewed until an interpreter is made available. Since it is a right that attaches to the suspect, it is not sufficient if the interviewing officer believes that the suspect's understanding of English is of sufficient level.
Having viewed the EROI carefully, I am not satisfied that:
1.the accused's English proficiency was of a sufficient standard that he did understand the fundamental rights he had, including the privilege against self-incrimination; or
2.that his right to an interpreter was sufficiently explained to him leading to him understand that he had the right to an interpreter in the circumstances.
In the circumstances, I am not satisfied that the accused made an informed decision to exercise his choice to answer questions. I am not satisfied that the answers he gave were voluntary.
Section 154 of the CIA
Section 154 of the CIA deals with evidence which is improperly obtained. Relevantly, s 154 of the CIA provides as follows:
(2)If in the purported exercise of a power conferred by this Act or by an authorisation issued or purportedly issued under this Act -
(a)a thing relevant to an offence is seized or obtained; and
(b)a requirement of this Act in relation to exercising the power or issuing the authorisation, including a requirement that arises before or after the exercise of the power or the issue of the authorisation, is contravened, any evidence derived from the thing referred to in paragraph (a) or from the exercise of the power is not admissible in any criminal proceedings against a person in a court unless -
(c)the person does not object to the admission of the evidence; or
(d)the court decides otherwise under section 155;
(e)…
In Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1; (2010) 203 A Crim R 339, McLure P (with whom Buss JA agreed) considered the proper construction of s 154(2) of the Act and broke down its constituent elements as follows:
•if in the purported exercise of a power conferred by the Act;
•a thing relevant to an offence is obtained;
•and a requirement of the Act in relation to the exercise of the power (including a requirement that arises before or after the exercise of the power) is contravened;
•any evidence derived from the thing or from the exercise of the power is not admissible; and
•unless the person does not object to the admission of the evidence or the court decides otherwise under s 155.
Following Wright v The State of Western Australia [20], an 'interview and the record thereof are "things" obtained in the purported exercise of a power under the CIA (namely the detention of a suspect for the purpose of interviewing them ‑ s 139(2)(c)]. Consequently, the admissions and the record of the interview are "things" obtained in the purported exercise of the police officers' power to interview the accused.
The second issue is whether s 154 renders the evidence inadmissible by the officers' failure to either afford the accused an interpreter or to properly caution him before he made the alleged admissions.
As already noted above, there is no doubt that during the EROI Det Sgt Harrison read to the accused information that included his rights pursuant to s 137(3)(d) and s 138(2)(d) of the CIA.
I have already found that I am not only satisfied that the accused did not understand his rights, but also that they were not properly conveyed to him in a manner that he could understand. I am satisfied that the police officers did not properly comply with s 137(3)(d) and s 138(2)(d) of the CIA. The failure to provide the accused with the assistance of an interpreter in this case renders the EROI conducted with him, whilst detained pursuant to s 139(2)(c) of the CIA, prima facie inadmissible.
Section 155 of the CIA
The CIA provides that the court has a discretion in some cases to admit evidence that would otherwise be inadmissible pursuant to a particular section of the Act. Section 155 provides as follows:
(1)This section applies if under another section a court may make a decision under this section in relation to evidence that is not admissible in proceedings in the court.
(2)The court may nevertheless decide to admit the evidence if it is satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.
(3)In making a decision under subsection (2) the court must take into account -
(a)any objection to the evidence being admitted by the person against whom the evidence may be given;
(b)the seriousness of the offence in respect of which the evidence is relevant;
(c)the seriousness of any contravention of this Act in obtaining the evidence;
(d)whether any contravention of this Act in obtaining the evidence -
(i)was intentional or reckless; or
(ii)arose from an honest and reasonable mistake of fact;
(e)the probative value of the evidence;
(f)any other matter the court thinks fit.
(4)The probative value of the evidence does not by itself justify its admission.
The issue here is whether the discretion under s 155 to admit the evidence, notwithstanding the breach, should be exercised.
It seems to clear to me that the police officers' failure to afford the accused an interpreter arose from their honest and reasonable mistake of fact, namely that the accused's understanding of English was sufficient and that he understood the caution. Their mistake was neither deliberate nor reckless. Nonetheless, the failure to properly explain the accused's rights to him and the consequences of that failure do amount to significant contraventions of the CIA. The accused was a particularly vulnerable person by virtue of his cultural background. It would not be appropriate in this case to exercise the discretion available under s 155 of the CIA.
Relevant law - unfairness discretion
If I am wrong about either the question of voluntariness or the breaches of the CIA rendering the evidence inadmissible, I would in any event need to consider whether the EROI should be excluded pursuant to the unfairness discretion. In these circumstances the onus is on the accused to establish on the balance of probabilities that there is a substantial reason why the confession should be excluded in the exercise of the court's discretion.
Generally, there are three possible bases to exclude evidence pursuant to the unfairness discretion. In R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 [51], the High Court said these are:
1.that it is unfair to the accused to admit the confession;
2.that public policy considerations render the admission of the evidence unacceptable; or
3.that the prejudicial effect of the evidence outweighs its probative value.
The unfairness discretion is not concerned with whether the police acted fairly or unfairly. The concern is whether it would be unfair to the accused to use his confession or admissions against him: R v Lee (154), Van der Meer v The Queen [1988] HCA 56; (1988) 82 ALR 10, 26. Whilst the prime concern is the unreliability of the confession, the discretion is not confined to this issue. As here, the real concern is whether the admissions would have been made at all if the interview had been conducted properly: Van der Meer v The Queen (20), R v Swaffield (71).
The question of unfairness and public policy concerns are sometimes interwoven. The question of unfairness is often taken into account in considering public policy and vice versa. There is a strong public policy to ensure that vulnerable suspects are properly afforded their rights.
In this case the accused has satisfied me that it would be unfair to admit the EROI in circumstances where he did not understand the caution and was not provided with an interpreter. There is a real issue whether he would have made the admissions if he properly understood the privilege against self-incrimination.
Conclusion
In relation to the accused's objection to the admissibility of the Electronic Record of Interview (EROI) conducted with the accused by Det Sgt Harrison and Det F/C/C Poore on Saturday 27 August 2016, it is excluded for the following reasons:
Voluntariness
I am not satisfied on the balance of probabilities that the accused's participation and the answers he gave in the police interview were voluntary. I come to that conclusion for the following reasons:
1.as an arrested suspect he should have been provided with an interpreter as his understanding of English, when viewed objectively, was not sufficient to understand the rights as read to him by the police officer.
2.It was not made clear to him that he had the right to an interpreter.
3.The caution, particularly the fact that if he chose to answer questions that may be used in evidence against at a later stage, was not properly explained to him.
4.He did not understand that he did not have to answer every question put to him by the police officers, nor understood by him.
Consequently, the conclusion that the accused's participation in the recorded interview was not voluntary means that the whole of the interview is inadmissible.
Breaches of the CIA – s 154 and s 155 of the CIA
The interviewing police officers' failure to ensure that the accused was assisted by a qualified interpreter as required by s 137(3)(d) and s 138(2)(d) renders the whole of the EROI inadmissible.
Upon any objective assessment of the answers given by the accused, it was clear that he did not understand his right to silence and that his command and understanding of English was not sufficient in the circumstances. There is no evidence to suggest that a suitably qualified interpreter could not have been located at that time or shortly thereafter.
Whilst I am satisfied that the breaches of s 137 and s 138 of the CIA were not deliberate or reckless and that the admissions do constitute probative evidence, I am not satisfied that the desirability of admitting the evidence outweighs the undesirability of doing so (s 155(2) of the CIA).
Unfairness Discretion
Even if I am wrong in regards to the issues of voluntariness and breaches of the CIA, I would exclude the interview on fairness grounds. In my view, it would be unfair to the accused to admit evidence of the EROI for the following reasons:
1.the accused should not have been interviewed without an interpreter;
2.he did not have sufficient English speaking ability to understand the fundamental rights given to him in the formal language adopted by Det Sgt Harrison;
3.the efforts by the police to determine whether the accused had a sufficient understanding of English and whether an interpreter was required were inadequate;
4.the accused did not have an interview friend; and
5.the police did not properly explain to him that any answers he gave to questions asked by them might be relied upon in court as evidence against him.
The entire EROI is excluded.
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