Shahidan Nisha v The Queen - [2016] NZSC 114

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS, OF ANY PERSONS UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE SUPREME COURT OF NEW ZEALAND

SC 75/2016
[2016] NZSC 114

BETWEEN	SHAHIDAN NISHA Applicant
AND	THE QUEEN Respondent

Court:	William Young, Arnold and OʼRegan JJ
Counsel:	R G Glover for Applicant C A Brook for Respondent
Judgment:	30 August 2016

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant was convicted after a jury trial of 27 charges involving offences of violence. She appealed against conviction and sentence to the Court of Appeal. That Court allowed her appeal against convictions on two of the 27 charges, but otherwise dismissed the appeal.[1]
[1]Nisha v R [2016] NZCA 294 (Ellen France P, Clifford and Katz JJ) [Nisha (CA)].
One of the grounds of appeal to the Court of Appeal related to the standard of translation provided by the interpreter engaged to assist the applicant at the trial. The applicant said she had a very poor understanding of English and could not meaningfully engage with counsel in preparation for the trial. She also said that the interpreter had not translated very much of what had been said during the trial. These deficiencies were said to have led to a breach of the applicant’s right to an interpreter under s 24(g) of the New Zealand Bill of Rights Act 1990.
The Court of Appeal heard evidence from the applicant, her two trial counsel and the interpreter. The Court of Appeal concluded there was no breach of s 24(g). It said:[2]
We are in no doubt Ms Nisha was carefully advised and briefed prior to trial and that she understood the advice. We also reject Ms Nisha’s evidence as to the approach taken by the interpreter at trial. We find the interpreter translated the evidence and other interactions during the trial as she was required to do and there is no reason to believe that Ms Nisha did not understand what was happening.
[2]At [27].
The applicant seeks leave to appeal on the basis that her right under s 24(g) was breached, but the point she wishes to raise in this Court differs from that raised in the Court of Appeal. She does not seek to challenge the adverse credibility finding made against her in the Court of Appeal. Rather, she seeks to argue on appeal that the adoption of a process of simultaneous interpretation (rather than consecutive interpretation) led to a breach of her right under s 24(g).
When giving evidence in the Court of Appeal, the interpreter expressed concern about being required to translate simultaneously at the applicant’s trial, referring to the decision of this Court in Abdula v R, which indicated that consecutive interpretation is “highly desirable”.[3]
[3]Abdula v R [2011] NZSC 130, [2012] 1 NZLR 534 at [60].
We do not see any point…

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.

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Details

Case: [2016] NZSC 114
Decision Date: 30 August 2016

CaseChat Overview and Summary

The Supreme Court of New Zealand heard an application for leave to appeal against a conviction from Shahidan Nisha. Nisha was convicted of 27 charges involving offences of violence. She appealed against her conviction and sentence to the Court of Appeal, which allowed her appeal against convictions on two of the 27 charges but dismissed the remainder of her appeal. Nisha now sought leave to appeal to the Supreme Court on the basis that her right to an interpreter under section 24(g) of the New Zealand Bill of Rights Act 1990 was breached. The Court was required to determine whether there was a point of public importance arising from Nisha's case and whether there was a risk of miscarriage if leave to appeal was declined. The Court found that there was no point of public importance arising from this case, as the Court had recently given full consideration to the requirements to comply with an accused person's rights under section 24(g) in Abdula v R. The Court also found that there was no risk of miscarriage if leave to appeal was declined, as the Court of Appeal had assessed the situation after hearing all of the relevant witnesses and found that Nisha understood what was happening at her trial and was able to participate fully in the preparation for her trial. The Court concluded that there was no proper basis on which leave to appeal could be granted and dismissed the application for leave to appeal. The Court's decision did not indicate that a failure to provide consecutive translation would automatically lead to a finding that a miscarriage of justice had occurred, and any challenge based on section 24(g) required an assessment of the level of assistance required by the defendant and the standard of assistance actually provided. The Court found that Nisha had sought to mislead the Court as to the level of her ability to communicate in English and had, in fact, understood what was going on at her trial.

Orders