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Abdula v R

Abdula v R

Case [2011] NZSC 130 1 November 2011

Interpretation

Breach of Contract

Unconscionable Conduct

Criminal Law

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IN THE SUPREME COURT OF NEW ZEALAND

SC 80/2010
[2011] NZSC 130

CHALA SANI ABDULA

THE QUEEN

Hearing: 25 March 2011

Court: Elias CJ, Blanchard, Tipping, McGrath and William Young JJ

Counsel: D L Stevens QC for Appellant
D B Collins QC Solicitor-General, H W Ebersohn and R A Kirkness for Crown

Judgment: 1 November 2011

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

REASONS

(Given by McGrath J)

Introduction

This appeal raises an issue that is central to fairness in the administration of criminal justice. It concerns the right of accused persons who do not speak English to hear and understand the case being presented against them. They are dependent on effective interpretation of what is said in court if they are to understand the proceedings and have a real opportunity to present a full defence to the criminal charges they face.

Background

The appellant, Mr Abdula, was tried jointly with a Mr Ahmed on a charge of rape. The complainant was an 18 year old woman who had been walking home early on a Sunday morning while intoxicated. She approached a group standing outside bakery premises and asked to use the toilet. One of the group, Mr Ahmed, took her inside to a disabled persons’ toilet where he forced her to remove her clothing and sexually assaulted her. The complainant’s evidence was that a second man then entered the toilet and raped her. She did not get a good look at him but heard one of the two men then present threaten her in English. There was evidence that the appellant had some command of English while Mr Ahmed had virtually none. A third man then intervened and the complainant was able to leave the toilet and walk away from the bakery to a bus stop where persons she came across paid for a taxi to take her home.
After speaking with her flatmate, she called the police and later that morning was medically examined with vaginal cervical swabs being taken. Testing indicated the presence of semen which, on analysis, was consistent with having originated from the appellant or a close relative of his. DNA profiling results on the clothing worn by the complainant were “50 million million” times more likely to occur if the DNA originated from the appellant than from another randomly chosen male.
The appellant, in a statement to the police, denied that he had raped or had sexual intercourse with the complainant. He admitted engaging in other sexual activity with her, which he said was consensual. As a result of that activity, he had ejaculated on her hand. The appellant’s defence was that part of the fluid on the complainant’s hand was later transferred to the areas from which swabs were taken. There was evidence indicating this was possible and the defence case was that this explained why the appellant’s DNA was found in those areas.
The issues at the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abdula v R

Details

AGLC: Abdula v R [2011] NZSC 130
Case: [2011] NZSC 130
Decision Date: 1 November 2011

CaseChat Overview and Summary

In Abdula v R, the appellant, Mr Abdula, appealed against his conviction for rape. The central issue in the appeal was whether the interpretation provided to him during his trial met the required standard under the New Zealand Bill of Rights Act 1990. The appeal court had to determine if the interpretation was of sufficient quality to ensure Mr Abdula could understand the proceedings and present a full defence. The court considered the evidence of Mr Abdula, his partner, and his counsel, who raised concerns about the quality of interpretation, particularly the interpreter’s volume and occasional simultaneous interpretation. The interpreter, however, argued that he spoke loudly enough for both accused to hear and that simultaneous interpretation was used only occasionally. The court emphasised the importance of effective interpretation to ensure a fair trial but found that Mr Abdula had not shown that the interpretation fell below the required standard. The appeal was dismissed as the court found no evidence that the interpretation hindered the appellant’s defence or understanding of the trial proceedings.

Orders