The State of Western Australia v Talib
[2015] WADC 85
•24 JULY 2015
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- TALIB [2015] WADC 85
CORAM: HERRON DCJ
HEARD: 18 JUNE 2015
DELIVERED : 24 JULY 2015
FILE NO/S: IND 1660 of 2014
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
ABDUL RAHMAN TALIB
Catchwords:
Criminal law - Admissibility of police interview with accused - Whether Criminal Investigation Act 2006 (WA) breached - Whether evidence should be excluded in exercise of unfairness discretion - Malay language of accused - Imperfect English language - Failure to use interpreter
Legislation:
Criminal Investigation Act 2006 (WA) s 137, s 138, s 154, s 155
Result:
Record of interview admissible
Representation:
Counsel:
The State of Western Australia : Mr T W Karunaratne
Accused: Mr B Meshgin
Solicitors:
The State of Western Australia : State Director of Public Prosecutions
Accused: Legal Aid Commission of Western
Australia
Case(s) referred to in judgment(s):
The State of Western Australia v Gibson [2014] WASC 240
HERRON DCJ: By indictment dated 27 February 2015 the accused Abdul Rahman Talib is charged with one count of unlawfully causing grievous bodily harm to Higino Maria Jose Chaves on 21 March 2014 at Perth. It is alleged the accused punched Mr Chaves in the face during an altercation at their place of work. They worked together at Casey's Linen Services. After the accused punched Mr Chaves he fell backwards striking his head as a result of which he sustained a serious head or brain injury.
On 3 April 2014 the accused participated in a record of interview with police in which he made both admissions against interest and exculpatory statements.
The accused challenges the admissibility of the video record of interview on the basis he did not participate in the video voluntarily because he was not provided with his full rights in accordance with s 137 and s 138 of the Criminal Investigation Act 2006 (the CIA), essentially because the interviewing police officers did not inform him of his right pursuant to s 138(2)(d) of the CIA not to be interviewed without the services of an interpreter or afford him the right to have an interpreter present.
The State submits the accused was provided with his full rights pursuant to the CIA and that he freely participated in the record of interview, understanding he was not required to participate and understanding the questions asked of him.
Background
Soon after the incident on 21 March 2013 police attended the accused's workplace where the incident occurred, where he was spoken to by police, cautioned and then placed under arrest for an alleged offence of assault occasioning bodily harm.
After he was arrested the accused was further cautioned by police. The accused advised police that English was his second language, in response to which the accused was advised of his arrested suspect rights under the CIA and in particular not to be interviewed until an interpreter was available. Having been advised of those rights the accused requested that he receive the assistance of a Malay interpreter before being interviewed further.
The accused was then taken to the Perth Police Station where police made inquiries regarding the availability of a Malay interpreter but they were advised no interpreters were available at that time. The police then decided not to proceed to interview the accused and released him intending to interview him at a later date when an interpreter was able to be arranged.
On 3 April 2014 Police Officers Millard and Venn attended the accused's home and again arrested him for the offence of assault occasioning bodily harm. As the police officers were aware the accused spoke limited English they provided him with a document typed in English with an accompanying translation obtained through an internet translation service briefly outlining some of the accused's rights as an arrested suspect.
The accused was then taken to the Perth Police Station where the police officers intended to arrange an interpreter for the purpose of interviewing the accused. However, once police contacted an interpreter service they were advised an interpreter was not available. After the police officers and the accused arrived at the Perth Police Station Officer Venn in the presence of Officer Millard and the accused telephoned an interpreter service. It took a considerable period of time before Officer Venn was advised a Malay interpreter was not available. During that time she asked the accused whether he spoke any other language and he advised her he only spoke Malay.
Senior Constable Venn then explained to the accused that a Malay interpreter was not available even though she had earlier been advised one would be available and then said to the accused (ts 4 – 5):
VENN: There isn't a Malaysian interpreter at all available. So what I would like to do, um, today because having spoken to you I'm confident that your English is sufficient for us to at least go through your rights.
TALIB: Yeah.
VENN: Um, that we should do that on video.
TALIB: Okay.
VENN: Um, look, I need to make it very clear that obviously our, our intention was to use a Malaysian, Malay interpreter. We couldn't get one to, um, actually be here.
TALIB: Yeah.
VENN: Um, we tried to, we booked one to come today. Couldn't. And, and now we can't get one on the phone either. So that would have been the best case scenario for [indistinct].
TALIB: Yeah.
VENN: Um, if you're not happy to speak to us without an interpreter can you tell me? Would you like to, would you like an interpreter here before you're willing to speak to us or are you happy to speak without an interpreter?
TALIB: I think, yeah, I can speak with you because my English just a little bit, yeah.
VENN: Yeah.
TALIB: Yeah, alright.
VENN: Um, I want to make - - -
TALIB: [indistinct]
VENN: Clear that you are under no pressure to speak to us at all.
TALIB: Okay.
VENN: You don't have to speak to us.
TALIB: [indistinct]
VENN: Okay. If you don't speak to us there is no punishment for that.
TALIB: Okay.
VENN: Alright.
TALIB: Yeah.
VENN: So if any time you're not happy any more just tell us. Okay.
TALIB: Okay. Yeah.
Senior Constable Venn asked the accused that if he was not happy to speak to them without an interpreter could he tell her and asked whether he would like to speak without an interpreter in response to which the accused said he could speak with the police officers 'because my English just a little bit, yeah'.
The police then provided the accused with his arrested suspect rights pursuant to s 138 of the Act but did not further advise him of his right not to be interviewed without the services of an interpreter.
The police officers then proceeded to interview the accused about the incident over a period of approximately 35 minutes. Towards the end of the interview Senior Constable Venn said 'we're not going to keep going any longer because I don't think there's any need. And especially without an interpreter' (ts 35). Senior Constable Venn then asked the accused the standard questions asked of arrested suspects as to whether he had been forced to or threatened to participate in the interview and he said he had not been.
Prior to being arrested on the second occasion on 3 April 2014 and interviewed by police, the accused on 24 March 2014, in response to a text message to employees requesting they submit reports to him regarding the incident on 21 March 2014, provided a written statement to the employer giving his version of how the incident happened. The statement was written and signed by the accused.
The State relies upon that statement and seeks to adduce the statement in evidence at the trial. The State submits that what the accused said in his video record of interview with police on 3 April 2014 is largely consistent with what he said in the written statement provided to his employer on 24 March.
Although the admissibility of the written statement at the trial was not argued before me, I was informed by the accused's counsel the admissibility would be challenged at trial on the grounds of voluntariness and fairness.
The law
Section 137 and s 138 of the CIA read:
137. Arrested people, rights of
(1)In this section —
officer means a police officer, a public officer, or any person who holds an office with power to arrest people.
(2)This section applies to a person who has been arrested by an officer, no matter under what authority or written law.
(3)The arrested person is entitled —
(a)to any necessary medical treatment; and
(b)to a reasonable degree of privacy from the mass media; and
(c)to a reasonable opportunity to communicate or to attempt to communicate with a relative or friend to inform that person of his or her whereabouts; and
(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
(1)In this section —
arrested suspect means a person who is under arrest having been arrested —
(a)under section 128, under an arrest warrant, or under another written law, on suspicion of having committed an offence; or
(b)under the Criminal Investigation (Extra‑territorial Offences) Act 1987;
officer means a police officer, a public officer, or any person who holds an office with power to arrest people.
(2)In addition to the rights in section 137 an arrested suspect is entitled —
(a)to be informed of the offence for which he or she has been arrested and any other offences that he or she is suspected of having committed;
(b)to be cautioned before being interviewed as a suspect;
(c)to a reasonable opportunity to communicate or to attempt to communicate with a legal practitioner;
(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.
(3)The officer in charge of the investigation must, as soon as practicable after the arrest of an arrested suspect —
(a)inform the suspect of his or her rights under section 137(3)(c) and subsection (2)(c); and
(b)afford the suspect his or her other rights under section 137 and subsection (2).
(4)An officer may refuse an arrested suspect his or her right to communicate or to attempt to communicate with a person if the officer reasonably suspects that the communication would result in —
(a)an accomplice taking steps to avoid being charged; or
(b)evidence being concealed, disturbed or fabricated; or
(c)a person’s safety being endangered.
Whether a police interview with an accused should be ruled inadmissible because of the failure to use an interpreter was considered by Hall J the recent decision of The State of Western Australia v Gibson [2014] WASC 240. Hall J observed [77] – [79]:
Where a person has no understanding of English at all an interpreter is obviously required as a matter of practical necessity. Where a person has some understanding of English the extent of that understanding needs to be considered. The understanding may not be sufficient for the person to appreciate their rights. An interpreter may also be required to ensure that any interview is fair and that any answers are reliable and not the subject of misunderstanding. What the police need to consider is not whether the person can make themselves understood in English in casual conversation, but whether they have the capacity to understand their rights and the types of questions that will be put to them in the police interview. They also need to consider whether the person has the ability to express themselves in English such that they are able to fairly and accurately give their own account if they wish to do so.
The obligations of police officers interviewing witnesses or suspects who may have language difficulties are partly reflected in s 10 CIA. That section provides as follows:
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.
This section refers specifically to matters about which the police are obliged to inform a person, such as rights under s 28, s 137 and s 138. But that does not exhaust the need to consider English language proficiency. Whether an interviewee has the capacity to understand and communicate in English sufficient to be able to participate in a police interview which may be lengthy and involve complex questions and detailed information must be considered. This is a factor that can impact on whether the interview is voluntary and also on whether it is fair.
He also said [146], [147]:
The obligation to administer a caution to an arrested suspect will not be satisfied by merely reciting the relevant phrases in the presence of that suspect. The caution must be understood by the suspect in order for it to be relevant to the question of voluntariness. In the case of a suspect who has an insufficient understanding of English this means that an interpreter should be used to explain the caution: s 10 CIA. Asking the suspect to then explain in their own words what the caution means will ensure that the suspect understands their rights.
It is also worth noting that the caution should be given in clear and unequivocal terms. Contradictory messages may undermine the force and effect of the caution.
In the context of that case involving an Aboriginal person with limited English language ability Hall J concluded [150], [151]:
The failure to understand the caution is an important factor, but it does not necessarily mean that the accused's participation was involuntary. However, in this case, the failure to properly convey the caution was compounded by the directives of Mr Butler to talk to the police. Whilst on many occasions the directive was to tell the truth, all of the interpreters and linguists agreed that the directives acted as imperative commands from a person in authority. This impacts significantly on whether it can be established that the interview was voluntary.
The State submitted that merely to tell a person to speak the truth is not likely to cause the person to tell untruths. Reference in this regard was made in R v Bodsworth [1968] 2 NSWR 132, 139 and Arthurs v The State of Western Australia [2007] WASC 209 [16]. The implication is that such directions are unlikely to affect the reliability of what is said. However, it is important in the present case to take into account that what Mr Butler was doing was not merely urging the accused to tell the truth but effectively ordering him to speak. If the emphasis is on speaking rather than staying silent the directives might well have an impact on reliability. An accused person who feels compelled to speak may well say anything to appease the person giving the directions.
In relation to voluntariness Hall J observed [160] – [162]:
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). This means that the statement must be made in the exercise of free choice. A statement made as a result of duress, intimidation, sustained insistence or pressure is not voluntary. Nor can a statement be voluntary if it is made as a result of an inducement held out by a person in authority. The prosecution bears the onus of establishing on the balance of probabilities that a confession has been made voluntarily: Wendo v The Queen (1963) 109 CLR 559, 572 - 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) 82 CLR 133, 149. Voluntariness focuses upon the will of the accused and must be applied according to the age, background and psychological condition of the accused and the circumstances in which the confession was 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) 31 ALR 257, 307 (Brennan J).
The Anunga Rules are not law in Western Australia however they do give a very good indication of what ordinarily would be regarded as a fair interrogation: Webb (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.
Although that decision is not binding on me, I find it, with respect, persuasive.
If I conclude police have breached the CIA in conducting the record of interview with the accused on 3 April 2014 I am required to have regard to s 154 and s 155 of the CIA which read:
154. Evidence obtained improperly
(1)In this section —
authorisation includes a warrant and an order.
(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; or
(e)if the power exercised was exercised in relation to a protected person (as that term is defined in section 73), the court is of the opinion that the contravention arose out of a mistaken but reasonable belief as to whether the person was a protected person.
155. Inadmissible evidence, court may allow admission
(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.
Finally, if I determine the accused voluntarily participated in the video of interview I am still required to consider whether in the exercise of my discretion the interview should be excluded having regard to the matters set out by Hall J in Gibson [170] – [170]:
If the prosecution proves that a confession was made voluntarily then it is prima facie admissible. Subject to there being no breach of the CIA that renders the evidence inadmissible, the onus is then 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.
There are three possible bases for discretionary exclusion. They are that it is unfair to the accused to admit the confession, that public policy considerations made admission unacceptable or that the prejudicial effect of the evidence outweighs its probative value: R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 [51].
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 against him: Lee (154), Van der Meer v The Queen [1988] HCA 56; (1988) 82 ALR 10, 26. The prime concern is the unreliability of the confession, but it is not the only concern. There may be concern that the confession would not have been made at all if the interview had been conducted properly: Van der Meer (20), Swaffield (71).
Unfairness and public policy concerns can sometimes meld together. The question of unfairness is often taken into account in considering public policy and vice versa.
Factors that may be relevant to whether the interview was fair include whether the accused was able to understand and communicate in English, whether he was placed under pressure, whether he had adequate breaks and sustenance and was not pressed to continue whilst fatigued. Another factor may be whether police have persisted with questioning after a suspect has indicated a wish not to answer further questions. To so persist may, depending on the circumstances, be improper: R v Ireland (1970) 126 CLR 333. However, police are not bound to accept the initial position of a suspect: Clarke (1997) 97 A Crim R 414, 419 - 420. Interviewing officers are entitled to ask further questions to clarify the accused's position and to determine whether a refusal applies to all questions or only to a particular topic: The State of Western Australia v Smith [2010] WASC 279 [11]. The position may well be different where a lawyer acting for a client whose first language is not English tells police in clear terms that her client does not wish to answer any questions.
In The State of Western Australia v Gibson Hall J was not required to and did not consider the meaning of the adverb 'sufficiently' in s 137(3)(d) and s 138(2)(d). The Macquarie English Dictionary defines the adjective 'sufficient' as 'that suffices; enough or adequate'. The verb 'suffice' is defined as 'to be enough or adequate, as for needs, purposes, etc, to be enough or adequate for; satisfy'.
The Shorter Oxford English Dictionary defines 'sufficient' in relation to a legal document or security as 'legally satisfactory', and as adequate (especially in quantity or extent) for a certain purpose; enough (for a person or thing, to do something), as achieving an object; effective, as possessing talent or ability; competent, capable'. 'Sufficiently' is defined as 'in a sufficient manner; adequately, satisfactorily, enough'.
Therefore the question arises whether the accused Mr Talib was able to understand or communicate in spoken English sufficiently in the sense of being enough or adequately or satisfactorily for the purposes of first, understanding his arrested suspect rights, and in particular that he was entitled not to be interviewed until the services of an interpreter or other qualified person was available and secondly, in being able both to understand the questions being asked of him and, in responding to the questions asked of him, to be able to adequately or satisfactorily express himself, that is, to be able to 'communicate in spoken English sufficiently'.
I have watched and listened to the video record of interview and read the transcript. Although the interview does contain a number of admissions against interest, it also arguably contains a number of exculpatory statements. The accused said that he pushed the complainant away and the complainant then hit him causing him, that is, the accused, to bleed in his nose and the complainant slipped on the floor and the accused kicked him on the body one time and then walked away (ts 12). That is to be contrasted with one of the witnesses who in an unsigned statement to police said the accused kicked the complainant three times.
The accused also said that the complainant was aggressive towards him many times in the past as he was to other workers and other workers would say so (ts 14), he said 'he couldn't control him' (ts 15), the complainant was always arguing with others (ts 16), that the complainant said to the accused 'fuck you' two or three times and the accused then lost control (ts 17). The accused said it happened too fast he just pushed the complainant who then slipped down on the floor (ts 21). He did not punch the complainant (ts 22). He only pushed the complainant with one hand (ts 23). He said it was quite unusual for someone to say 'fuck you' to him (ts 24).
Those statements are arguably exculpatory because they are relevant to issues of self‑defence and accident and even though provocation is not an available defence to a charge of unlawfully doing grievous bodily harm, it is nevertheless relevant when considering self‑defence.
In my view it is also relevant in considering the circumstances in which the accused participated in the record of interview and made statements to police that this was the second time he had been arrested by police. On this occasion he was arrested at home when his wife was present, and if the interview had not proceeded the police could either have charged the accused without interviewing him or have released him and arrested him on a third occasion and sought to interview him with an interpreter present, no doubt causing further inconvenience and stress to the accused.
It is also relevant in my view to consider that there may be forensic advantages to the accused from being able to say to a jury that he willingly participated in an interview with police at the first available opportunity when the circumstances of the incident were fresh in his mind, even though there may have been some language difficulties in which he was not able to fully express himself. It is of course a matter for the accused and his counsel as to whether there are forensic advantages from these considerations and whether the accused wishes to rely on such matters at trial or instead seek to challenge the admissibility of the record of interview. These matters were raised with counsel during the course of argument and counsel, having sought further instructions from the accused, maintained the opposition to the admissibility of the record of interview. The accused is of course quite within his rights to do so.
Acting Sergeant Venn
Now acting Sergeant Venn gave evidence regarding the circumstances in which police interviewed the accused on 3 April 2014.
It was her view the accused could understand English better than he spoke it. She was satisfied the accused understood what police were asking him.
She knew from reading the running sheet and the incident report that the accused had previously requested an interpreter when he was arrested on 21 March 2014 which is the reason she took steps to attempt to arrange an interpreter on 3 April. She would not have taken those steps if concerns had not been earlier raised by police.
She accepted the accused's English was broken and he was not fluent in English. She wanted an interpreter present to make sure and expected one to be available. She thought the issues were more in relation to the accused being able to speak properly in English rather than in understanding what was happening and what he was being asked. She was of the view the accused was able to understand her and was able to communicate in English.
In cross-examination she was taken to the Police Commissioner's Guidelines regarding the need for an interpreter when interviewing people not fluent in the English language. She accepted that the guidelines required her to document if she believed the person could communicate sufficiently in English but she did not document that. She formed the view that the accused had a sufficient understanding of the English language for police to be able to proceed with the interview and it was in the accused's best interests at that time to proceed, given that this was the second time he had been arrested and asked to participate in an interview with police.
She was unaware there was an English language test set out in the Police Commissioner's Guidelines and agreed she did not conduct those tests.
She conceded that may be the accused did not understand that he did not have to participate in the interview. She agreed she did not clarify with the accused that he could have an interpreter present. She agreed she could not be sure he understood what she explained to him and that he may at times have been confused. She accepted the accused did not speak perfect English.
The submissions
The accused's counsel submits that the police breached s 137 and s 138 of the CIA for failing to make it clear to the accused that he did not have to proceed with the interview without an interpreter being present. Counsel points to various passages in the interview which he submits indicates the difficulties the accused experienced in being able to properly express himself and communicate in the English language. For example, at ts 16 – 17 when the accused was asked had he seen the complainant push anybody he did not properly understand what 'push' meant. It is submitted that because of his limited English language ability, the accused was not able to fully and properly express himself in English and was unable to properly give his own account of what he said occurred.
The accused's counsel also submits that because of the accused's inability to fully and properly express himself in English, what he told police is unreliable in that it is a misleading account of what happened.
Finally, in relation to the issue of fairness and whether in the exercise of my discretion if I am satisfied there has not been a breach of the CIA, the video record of interview should be excluded, it is submitted, because it is unfair to the accused to allow the State to rely on the record of interview where its reliability is questionable even though that is a point which might be able to be made with some effect to the jury.
In response, the prosecutor submits that 'sufficiently' for the purposes of s 138 does not mean a perfect understanding or fluency in the English language. It is a matter of degree. The State points to the letter or written statement made by the accused and provided to his employer which it is submitted also contains poor grammar or inelegance in expression consistent with how the accused expresses himself in the record of interview with police. The State submits that in both the written statement and in his video record of interview the accused has essentially maintained the same version of what happened. Each version contains the same lack of English language proficiency but allowing for that the accused has been able to provide a consistent and clear account of what he says happened.
In essence, in both the written statement and in the record of interview with police, the accused denies he punched the complainant and says he only pushed the complainant away after the complainant had punched him, causing the complainant to stumble and fall backwards striking his head, raising issues of self-defence and accident in circumstances in which the accused says the complainant was the aggressor acting provocatively towards the accused.
Conclusion
Was the record of interview conducted in breach of s 138 Criminal Investigation Act 2006?
Having viewed and listened to the video record of interview with police on 3 April 2014 I am satisfied the accused was able both to sufficiently understand and communicate in spoken English for the purposes of s 137(3)(d) and s 138(2)(d) of the CIA in the sense that he was both able to adequately and satisfactorily understand his rights explained to him by the police officers and that he was not required to answer the police questions or participate in the video record of interview either with or without an interpreter. In particular I am satisfied he had a sufficient understanding, in the sense of an adequate or satisfactory understanding, that he was entitled not to be interviewed until the services of an interpreter were available.
Further, I am satisfied the accused had a sufficient, that is, an adequate and satisfactory, understanding of the questions asked of him by police.
I am also satisfied the accused was able to communicate in spoken English sufficiently for the purposes of expressing himself and explaining from his point of view what happened. While I accept he was not fluent in the English language and on some occasions he may have been confused in trying to explain himself, I am satisfied his ability to communicate and express himself in English was satisfactory and adequate in the circumstances. In particular I take into account that his accounts to police was generally consistent with the written statement made and signed by him to his employer regarding the incident. While I accept his expressions and descriptions in the English language are imperfect and inelegant, the requirement which gives rise to an entitlement for an interpreter to be present is if an arrested suspect is unable to understand or communicate in spoken English sufficiently, i.e. adequately or satisfactorily, which does not mean the person must be able to communicate perfectly in English. It is frequently the case in trials in this court that persons whose only language is English have difficulties in expressing themselves. To the extent Mr Talib may have experienced difficulty or confusion in fully or properly expressing himself I am not satisfied he was unable to communicate in spoken English sufficiently.
Further, while I accept acting Sergeant Venn may have better and more clearly explained to the accused Mr Talib that he was entitled not to be interviewed until the services of an interpreter were available, I am satisfied, notwithstanding her concession in evidence, both that she did sufficiently explain his rights to him and that he understood he did not have to participate in the record of interview without an interpreter being available particularly in circumstances where when the police had initially sought to interview him he was told he did not have to participate in a record of interview without an interpreter being available of which right he availed himself. Therefore, even had I been satisfied Mr Talib was unable to understand or communicate in spoken English sufficiently, I would have been satisfied it had been adequately explained to him, and he understood, that he did not have to participate in a record of interview with police if an interpreter was not available.
It follows the record of interview is admissible.
Section 155 Criminal Investigation Act 2006 – discretion to exclude a record of interview
It remains then to consider whether in the exercise of my discretion pursuant to s 155 of the CIA the record of interview ought be excluded. In deciding whether in the exercise of my discretion the record of interview ought be excluded on the grounds it is unreliable and unfair to the accused because of the accused's inability to fully express himself in English, I am mindful of the factors set out in s 155(3) of the CIA.
In my view the extent to which the accused was unable to fully and properly express himself in English and the extent to which he was confused in some of his answers to police questioning, and if so whether what he told police is unreliable and a misleading account of what he says happened are properly matters for the jury to assess and determine. However, for the purposes of deciding this application, and while as I have previously explained I accept the accused's ability to communicate in English was imperfect and at times there were difficulties in fully expressing himself and at times some confusion, I am satisfied he has generally given a coherent and understandable account of what he says happened which is consistent with what he said in his written and signed statement to the employer. I am not satisfied that to the extent that some of what he may have said to police is unreliable, that it is unfair to the accused for the record of interview to be admitted into evidence. The record of interview clearly has a probative value. In particular I take into account that the record of interview contains both admissions against interest and exculpatory statements.
In summary, I rule the record of interview in which the accused participated with police on 3 April 2014 is admissible at his trial.
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