Admissibility of Police Record of Interview

Legal Argument:                        Admissibility of Police Record of Interview

Court:                                            Southport District Court

Solicitor:                                       Mark Williams

Criminal Negotiations:

Our client was charged with rape and is a refugee from another country.  English is not his main language, but he has a very basic understanding of English.  It is obvious when speaking to our client that he is from another country and that English is not his main language.

The police, upon arresting our client, began questioning him regarding the alleged offence.  He was not afforded an interpreter at the police interview.  Before and during the police caution (right to silence and other rights explained), our client asked to speak to a friend. An unsuccessful attempt was made to contact his friend. The interview then progressed without delay.

We argued that no sensible reason was proffered for not delaying the interview and affording our client his right (in facts twice).

During the interview, our client did not understand the meaning of some things and on many occasions did not answer the officers’ questions. The interview continued despite these important issues and eventually, turned into an interrogation as opposed to an interview where the officers put many inappropriate matters to our client.

Mr Williams, who represented our client, made an application to the District Court to exclude this interview on the basis of unfairness.  We argued that the police officers breached the law because:

• They did not delay questioning to allow our client to speak to his friend;
• They failed to provide our client with an interpreter, despite him being unable to speak English with reasonable fluency; and
• They failed to translate the caution into a language that our client was able to communicate with reasonable fluency.

Pursuant to the principles enunciated in Bunning v Cross (1978) CLR 54, we argued the interview was generally unfair and should be excluded from evidence because:

• in addition to the above, English is our client’s second language, and:
  • he did not understand the concepts of rape and other more “legalised words” that the police used in their interview;
  • he was unfairly interrogated in circumstances where he was denied – in reality – his right to the support of a friend; and
  • his responses gave the impression that he was evasive, rather than illustrating his difficulty with the English concepts put to him.

Legal Principles

The Bunning v Cross discretion to exclude the evidence requires a balancing of the desirability of admitting otherwise reliable evidence against the public policy that those who enforce the law should respect it. The following factors are to balanced:

a)  whether the law was deliberately or recklessly disregarded by those with a duty to enforce it;

b)  whether the cogency of the evidence is affected by the improper conduct (although not normally relevant where there is deliberate or reckless disregard of the law);

c)  whether the misconduct could have been easily avoided;

d)  the nature of the offence charged;

e)  whether there was a violation of procedures intended to protect the accused;

f)  whether there was perishable evidence that’s preservation was a matter of urgency; and

g)  whether there exists alternative, equally cogent, evidence available?

The general discretion to exclude evidence because it would be unfair to admit, has long been established and is now enshrined in section 130 of the Evidence Act (Qld) 1977.

In Driscoll v The Queen Gibbs J said:

It has long been established that the judge presiding at a criminal trial has a discretion to exclude evidence if the strict rules of admissibility would operate unfairly against the accused. The exercise of this discretion is particularly called for it the evidence has little or no weight, but may be gravely prejudicial to the accused.

Ultimately, the Judge, after hearing our arguments overwhelmingly agreed with our application to exclude the interview from the evidence based upon the unfairness caused to our client by the actions of the interviewing police at the time of his arrest.

This resulted in the case against our client weakening considerably, which allowed for successful negotiations to withdraw the charge of rape against our client and substitute it for a lesser charge of assault, resulting in a non-custodial sentence.

WARNING:

This is a summary of an actual case. Details have been omitted to protect the privacy of our client. We select cases which are informative and no guarantee is provided that similar results are achievable in all cases. Every case is different and you should obtain legal advice specific to your matter and circumstances.