DISTRICT COURT OF QUEENSLAND

1. [1]
   The defendant has made a pre-trial application to exclude an audio-taped record of interview between him and police and an interpreter.

2. [2]
   The defendant is charged with one count of assault occasioning bodily harm. He speaks Vietnamese but not English. An interpreter attended to assist when police recorded an interview with the defendant on 1 February 2007. During the interview a police officer spoke in English. The interpreter appeared to translate the officer’s words into Vietnamese. The defendant responded to the interpreter in Vietnamese. The interpreter appeared to translate the defendant’s words into English. Appearances were deceptive. The interpreter was often translating inaccurately. The interpreter was inexperienced and did not understand that her role was to act as a translation machine. Seeking clarity, the interpreter would sometimes ask additional questions of her own in Vietnamese.^[1] When unsure of the meaning of the defendant’s answer the interpreter would occasionally try to confirm a version with the defendant and then convey it to the interviewing officer.^[2] Because she regarded herself as a caring person, the interpreter would sometimes add her own question in Vietnamese if the defendant’s answer did not make sense to her and she would interpret for the police officer her understanding of the defendant’s versions^[3]. Occasionally, the interpreter materially altered questions put by the police officer when putting a question in Vietnamese to the defendant and occasionally materially altered answers from the defendant when conveying an English version of the answer to the police officer. The interpreter changed the police officer’s words of advice to the defendant that he had a right to telephone or to speak to a lawyer of his choice. The police officer was unaware of these matters or of the interpreter’s limitations. The Queensland Police Service had a telephone number for an external agency which could arrange for interpreters. The officer called the telephone number and asked for an interpreter accredited by NAATI. She was not then aware that NAATI have different levels of accreditation. The defendant is critical of the process. The defendant makes no criticism of the police officer.^[4]                                                                                                    

3. [3]
   If the tape recorded interview were played to a jury without an explanation of what occurred during the interview, the jury would wrongly conclude that there had been an accurate translation of the questions asked by the interviewing officer. The jury would wrongly conclude that the answers given by the interpreter to the officer were accurate translations of the defendant’s words. The English words spoken in the interview would be accepted by the jury as reflecting the questions which the defendant understood and the answers he gave. The jury would be wrong. This unsatisfactory prospect became clear to the Crown only during cross-examination of the original interpreter during the hearing of this application. The Crown obtained an adjournment during the course of the hearing to engage a more highly qualified interpreter and translator fluent in English and Vietnamese. That expert witness, Mr Nguyen, has listened to the tape recorded interview, typed his opinions as to the English words spoken, his opinions as to the Vietnamese words spoken and his opinions as to the accurate translations of the Vietnamese words spoken. Mr Nguyen has created a transcript^[5] of the taped record of interview. It reveals Mr Nguyen’s reasonably accurate^[6] opinion of the words spoken by the police officer in English, his opinion as to what Vietnamese words were spoken in the interview and his accurate^[7] interpretation into English of the Vietnamese words.

4. [4]
   The transcript allows readers of English to read the police officer’s words^[8] and the accurate English translations of any Vietnamese words^[9] spoken by the defendant or by the interpreter. The reader can read and appreciate wherever the interpreter put to the accused a statement or question which differed in substance from the police officer’s. The reader can read an accurate translation into English of the words spoken^[10] by the defendant and see wherever they differ from the English translation offered by the interpreter to the police officer. A reading of the transcript reveals that the interpreter’s inaccurate translations may have occasionally caused misunderstanding or frustration in the police officer or in the defendant.

5. [5]
   The defendant applies^[11] for a ruling that the record of interview be excluded in its entirety. In submissions the defendant clarified that he seeks to exclude the tape recording. He has not made an application to exclude the Mr Nguyen’s transcript^[12], submitting instead that if the recording be excluded the transcript should also. The defendant declined to make further submissions about the transcript’s admissibility on a hypothesis that the application is dismissed and that the tape recording of the interview is not excluded by the court. The defendant declined invitations to make submissions about whether the form of the recording and transcript could be made fairer to the defendant by editing or whether deletions from the tape recorded interview would make it fair or admissible. The Crown made open, general and specific^[13] offers to delete passages from the record of interview with a view to fairness to the defendant. The defendant declined to respond before me to the offers, but confined the application’s target to the full tape recording of the interview. The defendant’s written outline of submissions^[14] observed that if the interpreter’s translation during the interview of the defendant’s words into English was hearsay^[15] and in parts unreliable and even misleading, then those sounds should be excised from the tape so that the jury does not hear them, but the submissions observed that the misleading translations provide context for questions next asked by police and without those misleading translations an edited tape may be confusing or misleading. But for the defendant’s submission that they provide context, I would have expected that the unreliable translations could have no relevance and would thus be inadmissible. Aside from that general submission by counsel for the defendant, he declined to make submissions as to how best to resolve this problem if the record of interview is not excluded in its entirety.

6. [6]
   The Crown does not intend to rely solely on the taped record of interview. I was asked to consider the application on the assumption that the Crown will rely upon the tape recorded interview, or an edited version of it, in combination with the evidence of Mr Nguyen that he created a transcript of the taped record of interview which, in his opinion, contains the words spoken in English, the words spoken in Vietnamese and an accurate interpretation into English of the Vietnamese words. The Crown proposes to tender through Mr Nguyen the transcript or an edited version of it.

Excluding the entire record on the basis of hearsay

7. [7]
   The defendant submitted initially^[16] that the original interpreter at the interview when purporting to translate from Vietnamese into English had failed to act as a “translation machine”^[17] and in cross examination established from that interpreter that she was accredited to translate English documents into Vietnamese documents, that she was not accredited to translate oral conversations and that her efforts were intermittently unreliable. On that basis, the defendant submitted that the translations by the original interpreter were hearsay and inadmissible and that they did not fall within the exception which applies where an interpreter acts as a translation machine without adding any subjective element^[18]. He submitted that the entire record should be excluded on that basis. There was force in the submission but I need not rule on it. The Crown no longer proposes to tender as accurate which the original interpreter’s purported translations from Vietnamese to English which can be heard in the tape recorded interview. More precisely, the Crown does not propose to rely upon those apparent translations as evidence of true and accurate translations. Statements made by the defendant in Vietnamese would be proved by the expert opinion evidence of Mr Nguyen as a recognised exception to the hearsay rule. Under the Crown’s proposed plan, I am unsure whether the defendant maintains the submission that the admissions of the defendant are sought to be proved by the hearsay evidence of the original interpreter. I would reject such a submission because the admissions are to be proved by Mr Nguyen through his transcript produced while he was listening to the recorded interview. Mr Nguyen was acting as a translating machine when he produced the translations in his transcript.

Excluding the entire record on discretionary bases

8. [8]
   That attack by the defendant was based on the inadmissibility of the whole of the record according to the rules of evidence and in particular the general rule excluding hearsay evidence. The defendant made a further attack on the whole of the record invoking the court’s discretionary power to exclude evidence which would otherwise be admissible.

9. [9]
   If the original interpreter’s English words purporting to be translations from Vietnamese are left in the tape recorded interview or in any written transcript of it, the purpose for admitting those words into evidence would be limited. Counsel for the defendant submitted that those questions provide context for the questions next asked by the police. The Crown made a similar submission orally in reply. The defendant further submitted that the original interpreter’s English words explain the conduct of the police officer at the interview when choosing her statements and questions. The defendant submitted that the jury might be misled by editing into believing that the defendant had been deliberately evasive in some answers. If the original interpreter’s purported translations into English remain, they would not be admissible as evidence of a true translation. I am not asked to rule on whether editing of any particular passages would be fair nor whether individual parts are inadmissible^[19]. The defendant seeks to have the whole interview excluded on discretionary bases. This creates an artificial problem. The Crown does not submit that the entire interview is admissible. Some of the defendant’s arguments in support of discretionary bases for excluding the record proceed on the hypothesis that the entire record is admissible or should, if admitted at all, be admitted in its entirety. Submissions have not been made as to whether it would be fair to admit less than the entire interview into evidence. Rather, the defendant proceeds on a basis that the sum of the parts should be excluded on discretionary bases. The implication in the defendant’s submission is that if the sum of the parts is excluded so too must each part be excluded. The defendant thus seeks to persuade that admission of the entire record would be unfair and seeks to have excluded even parts of the record which would otherwise be admissible.The oral arguments were confined to the attacks on the entire record.

10. [10]
    The defendant submitted that the court should exclude the entire record of interview in the exercise of its discretion on three bases summarised in R v Swaffield^[20]. The defendant submitted that each basis for the exercise of the discretion applied on the facts of the case before me and that the exclusion was justified because:

1. Firstly, it was unfair to the defendant to use his statement against him;

2. Secondly, on considerations of public policy which make it unacceptable to admit the statement into evidence irrespective of whether the court finds that the admission of the record of interview into evidence would work no particular unfairness to the defendant;

3. Thirdly, the danger of misuse of the record of interview by the jury outweighs the probative value of the record.

Unfairness

11. [11]
    The court has a discretion to exclude a defendant’s statement if it would be unfair to the defendant to admit it into evidence. Whether admission of the statement would be unfair depends upon an evaluation of the circumstances. Unreliability of the statement is one common measure of unfairness. It is not the only measure.^[21]  For example, it may be unfair to an accused to admit a reliable statement obtained without cautioning a defendant and after an intensive cross-examination.^[22]

12. [12]
    The defendant submitted that it would be unfair to admit the record of interview into evidence for several reasons. Some submissions were concerned with unreliability and others were concerned with fairness independent of reliability. It was submitted that the defendant, by participating in the interview, was consenting to a conversation with police officers. Instead, whenever the interpreter failed to act as a translation machine, it was submitted that the defendant was having a conversation with the interpreter. It was submitted that there were minor errors which were numerous and a few major errors and that some of the major errors additionally involved non-compliance with the Police Powers and Responsibilities Act 2000 (“PPRA”). Because the interpreter did not act as a translation machine it was submitted that the defendant lost some opportunity to create rapport with the police officers and that that may have led to some unreliability due to misunderstandings between them and may have made the defendant wrongly appear evasive. Attempting to fix this problem with Mr Nguyen’s mostly accurate transcript would, it was submitted, mean that the transcript would weigh disproportionately in the minds of the jurors. I propose to set these matters out more fully below.

13. [13]
    The defendant submitted that the defendant’s decision to participate in the interview cannot be said to be a properly informed decision because there were mistakes in translating to the defendant advice about rights to a lawyer which is required to be given pursuant to the Police Powers and Responsibilities Act 2000 (“PPRA”) and also because there was a failure to translate the word “warning” appropriately each time that word was used by the police officer.

14. [14]
    PPRA section 431 deals with cautioning persons before they are questioned. A police officer must caution persons before they are questioned. The caution must be given in the way required under the Responsibilities Code (“the Code”). The Code appears at Schedule 10 to the Police Powers and Responsibilities Regulation 2000. At Part 5 of the Code at Division 1 which deals with questioning relevant persons about indictable offences it is provided at section 34 that a police officer must advise a relevant person of the right to contact a lawyer and the section sets out a form of words with which the police officer must substantially comply. The defendant makes no criticism of the statement made during the interview by the police officer with the defendant concerning the right to contact a lawyer. The defendant complains that the interpreter’s translation into Vietnamese was defective. The police officer said:

“OK, you also have the right to telephone or speak to a lawyer of your choice to inform where you are and the right to attempt the lawyer to be present during questions.”(sic)

That was translated for the defendant into the Vietnamese equivalent of:

“Besides if you at the moment wanted to have your lawyer to be here then they could give you the time to contact the lawyer and invite them to come here to sit together with you in this interview do you want to do that?”

The defendant replied in the Vietnamese equivalent of:

“I don’t know what’s going to happen now, and I haven’t got any lawyer to help me either”.

The interpreter translated that inaccurately into English as:

“I don’t know what is gonna happen or what is all about so that why I …”

The police officer interrupted and said:

“Yes, no worries. That’s fine. And is there anyone he wants to speak to?”

The interpreter translated that inaccurately into the Vietnamese equivalent of:

“Do you now want to contact your lawyer?  Do you have any lawyer or do you want to …”

To which the defendant replied in the Vietnamese equivalent of:

“No thank you”.

15. [15]
    Counsel for the defendant was concerned that the interpreter omitted to translate to the defendant the police officer’s words “lawyer of your choice”. They are words which appear in the form of words set out in s 34 of the Code being the words with which an officer must substantially comply when advising a person of the right to communicate with a lawyer. The complaint is not one confined to technical non-compliance with section 34 of the Code. Counsel for the defendant submitted that the form of words recited to the defendant in Vietnamese did not reveal to the defendant his full right to a lawyer. His full right included a right to telephone or speak to a lawyer of his choice. Counsel submitted that, instead, the defendant was informed that he had the right to contact his lawyer. The vice in the form of words heard by the defendant is the possibility that he believed he was given the chance to contact a lawyer if he already had one engaged and the possibility that he did not realise that he could engage a lawyer if he did not have one already engaged.

16. [16]
    The defendant’s counsel accepts that non-compliance with the requirements of this Code does not automatically lead to the exclusion of a statement obtained after non-compliance. The defendant accepts that it is a matter to be considered in the exercise of a discretion to exclude the statement.

17. [17]
    I do not regard the possibility of the defendant’s being confused about a right to engage a new lawyer as a probability. When asked “do you have any lawyer or do you want to …” the defendant answered “no thank you”. It seems probable that he understood that he was being offered the opportunity to engage a lawyer.

18. [18]
    Apart from a finding as to the probable understanding of the defendant, there may appear to be a separate issue as to whether the form of words recited in Vietnamese to the defendant was a form of words which substantially complied with the form of words set out in s 34(1) of that Code. This would be an artificial issue. The Code imposes an obligation upon a police officer to give advice in substantial compliance with the form of words. It is not suggested that the police officer failed to comply with the obligation. It is not suggested that the Code imposed an obligation upon the interpreter. Nevertheless, I find that the form of words used by the interpreter^[23] when she ought to have been translating that the defendant had the right to contact a lawyer of his choice and to have the lawyer present was in substantial compliance with the form of words in the Code. I reject as a probability that the defendant considered that he could contact a lawyer only if one was already retained by him or had been retained on some prior occasion. The possibility of confusion in the defendant’s mind was more critical at the start of the interview than at later stages. When the tapes were changed two times during the interview the police officer substantially repeated the advice as did the interpreter. The interpreter’s purported translation after the first change of tape^[24] was less likely to be misinterpreted where she said in Vietnamese the English equivalent of:

“Besides you also have the right to contact your lawyer … any lawyer of your choice to get them to be present in this interview if you wish.”

19. [19]
    It was submitted that wherever the police officer conducting the interview used the word “warning” the interpreter failed to translate it correctly and that she used instead a different concept. It was submitted that the result was that the importance of the caution which the police officer intended to convey was not conveyed. Essentially, when the police officer used the word “warning”, the translator used either the word “reminders”^[25] or the word “reminder”^[26] or did not translate the word at all.^[27] The issue arises three times during the interview because the police officer used the word “warning” at the commencement of the interview and after each of the two times that the tape was changed. The most critical time for a misinterpretation of the word “warning” would be the first occasion that it was used. It was first used at the commencement of the interview. After the interpreter had interpreted to the defendant that he had the right to remain silent, to refuse to answer questions or make any statements because everything he would say would be later used as evidence the interview continued, in effect:

Police: “Do you wanna understand that warning?” [sic]

Interpreter: “Long. Do you understand these reminders?”    Defendant: “Yes”.

                      Police: “Can you ask Long to tell me what he understands for that?”

Interpreter to defendant: “Now could you tell her if you’ve understood what she’s explained to you. How did you understand them?”

Defendant: “She said whatever I said would be used as evidence as I’ve just heard.”^[28]

20. [20]
    From the defendant’s response to the interpreter as set out in the passage above it seems clear that he understood that the police officer was telling him that whatever he said would be used as evidence. I find that the defendant understood that whatever he said would be used as evidence. I do not regard the failure to use the Vietnamese equivalent of the word “warning” as resulting in an unreliable translation of the substance of the words which the police officer wished to convey and which, out of fairness to the defendant, ought to be have been conveyed. It was important that the defendant understood that whatever he said would be used as evidence. That was achieved.

21. [21]
    The defendant submitted that there were a number of occasions where the question asked by the police officer was mistranslated in a material way. In a written outline of submissions questions 19, 59, 63, 64, 67, 89, 103, 107, 161, 181, 237, 239 and 280 were identified in this category. The numbering of the questions appears in a copy of I for identification marked with numbers by counsel for the defendant. I will maintain that numbering. Words in brackets are inserted by me into the extracts from I for identification for clarity. The particular questions which fall into this category are:-

19:Police to interpreter: “Ok, the nature of the complaint is an assault complaint over money owing for meat.”

Interpreter to defendant: “The content of the matter that that person reported you to the police he said you owed money about some meat, meat money.”

Defendant to interpreter: “Could you please tell her that, please tell her that that person owes my brother money it’s not me who owes money. It’s been said that I owe that person some meat money and I don’t understand why he has said so.”

20:Police to interpreter: “Ah, can we get … I haven’t asked my questions yet. I’m only telling him what I am going to interview him about. Does he understand that?”

Interpreter to defendant: “She told you not to start talking about the details of the matter, because at the moment she’s only trying to explain to you about the matter concerning your interview today. A bit later on if she asks you questions then you can then answer her.”

Defendant to interpreter: “Let me explain to you, please tell her for me about that I owing meat money, I didn’t buy anything, only that person (the complainant) he bought and he owed money.”

Interpreter to police officer: “Yeah, he just speaks about the content of the complaint he said that his brother owing that person money, not him.”

 The defendant submitted that the questioning at 19. reveals that the interpreter wrongly suggested to the defendant that the complaint was about money owed by the defendant. It was submitted that this caused immediate confusion in the defendant who was anxious to respond that the complainant owed money to the defendant’s brother rather than the defendant owing money to the complainant. I accept the submission. So much is obvious from the document I for identification and would be obvious to the jury when reading the relevant passage.

22. [22]
    When the police officer reached the stage of putting the complainant’s version to the defendant the interview proceeded as follows:-

59.Police to interpreter: “Ok, (the complainant) has alleged that as he was loading what he had purchased from the butcher shop into the car that (the defendant) hit him from behind.”

Interpreter to defendant: “This (complainant) said while he was carrying in meat from the car then while he was carrying you hit him from behind.”

Defendant to interpreter: “Yes.”

Interpreter to defendant: “Hold it just listen up before you say anything.”

Interpreter to police: “Oh, he wanna say something and I said him to wait.”

 The defendant submits that the interpreter put a false version to the defendant. I accept this submission. It is clear that the police officer was speaking about an event which occurred as the complainant was loading meat into a car, but the interpreter spoke of an event occurring as the complainant was carrying meat from a car. It is obvious from the transcript that the interpreter mistranslated. It would be unfair if that exchange was tendered as an admission to an assault on the complainant as he walked from his car or as an admission of anything. However, the defendant does not seek to have that exchange edited. It is another mistranslation raised to support the application to exclude the entire record.

23. [23]
    The next complaint was about the question marked 63. A further complaint concerned 64. and a further one concerns 67. For convenience I will set those questions out so as to reveal the context. They are, in effect:-

63.Police to interpreter: “Ok, he said once he got off the ground that (the defendant) began to punch him in the face which happened about six times.”

Interpreter to defendant: “Then he said after he was kicked down on the ground then trying to get up then while getting up he was punched by you in the face six more times.”

64.Police to interpreter: “Ok. (The complainant) said that he fell to the ground and was screaming for help.”

Interpreter to defendant: “Then after he was punched by you six times, he fell down on the ground one more time and then he screamed for help.”

65.Police to interpreter: “Ok, he said then people from the butcher shop came to help.”

Interpreter to defendant: “He said then the people from the butcher shop ran out to intervene, they helped him.”

66.Police to interpreter: “Then the people in the butcher shop held him back.”

Interpreter to defendant: “Then the people from the butcher shop ran out and intervene and held you back.”

67.Police to interpreter: “At which time (the defendant) and (the complainant) had an exchange of words which was in relation to a dispute over (the complainant) owing his brother a large sum of money for meat.”

Interpreter to defendant: “And after they had intervened like that then the two of you started to quarrel with each other, then (the complainant) said he owed your brother some money about some meat or something like that.”

68.Police to interpreter: “Ok, I’ll get the (defendant) to comment on what his version of the event was.”

Interpreter to defendant: “Ok now it’s done, she’s now told you everything about what the other person had reported, he sued you, now it’s your turn, could you explain, could you explain your side of the story. How did it happen?”

Defendant to interpreter: “Now can you first of all before I say anything let her know that the things that person had said are not true. Then I will tell her my story.”

Interpreter to police: “Before he tells you his story, he’d like to let you know that everything (the complainant) said in his allege was incorrect.”

The defendant submits about the question and reported translation at 63. that there is little correlation between the versions. I accept the submission. The defendant submits that the question and translation at 64. falsely conveyed to the defendant an allegation that the complainant fell to the ground after being punched six times. I accept that submission. The defendant submits that the exchange at 67. wrongly conveys to the defendant that the complainant said he owed the defendant’s brother money for meat. I accept that submission. Such unfairness as may have arisen from the incompetent translation has been minimised by the defendant’s refusal to accept the propositions and claim that the things that the complainant said were not true. The defendant does not seek to have that exchange edited. It is another mistranslation raised to support the application to exclude the entire record.

24. [24]
    While the defendant submitted that the transcript had numerous errors, the next of the more important errors identified was at the exchange marked 107. It reveals, in effect:

107.Police to interpreter: “OK, so what sort of altercation was it?  Uhm … did … were punches thrown?”

Interpreter to defendant:  “Then when the two of you … she asked while the two of you were holding and pulling each other, did anyone punch anyone?

Defendant to interpreter:  “I and that person were holding each other and then other people intervened and then we stopped, then he said he was sick that day, he was using a walking stick but I was not afraid of you [sic]. That’s what he said.”

Interpreter to police:  “Uhm … when the people from the butcher shop.  ….”

Defendant to interpreter:  “ Oh sorry, I don’t know who were the people from the butcher shop they saw two people together they came to intervene, he said they came from the butcher shop, I’m not sure if that was correct.”

It can be seen that the interpreter did not accurately translate the police officer’s question. Instead, she asked a question which included a premise that the defendant and the complainant were holding and pulling each other. She failed to ask “what sort of altercation was it”. For the defendant it was submitted that he was answering a question made up by the interpreter when he thought he was answering a question from the police officer. I accept each submission. So much is apparent from the transcript. The defendant does not seek to have this exchange edited. It is another mis-translation raised to support the application to exclude the entire record.

25. [25]
    The next of the errors identified by the defendant as important begins with the exchange identified as 161. It was, in effect:-

161.Police to interpreter:  “OK, when uhm … other than that one time in the shop at the butcher at Inala, uhm has (the complainant) ever seen (the defendant) before?  Sorry has (the defendant) ever seen (the complainant) before?”

Interpreter to defendant:  “Apart from the time that you saw (the complainant) at some in Inala, your brother’s shop that he came to get the meat, where he took the meat without paying money and the shop assistant didn’t record … did you see this (complainant) anywhere else?

Defendant to interpreter:  “No”.

Interpreter to police:  “No”.

162. Police to Interpreter:  “So he felt that it’s up to him to approach a complete stranger in the street and confront him about $3,000?”

The defendant submits that the start of the questioning by the police officer at 161. was mistranslated by the interpreter. In written submissions^[29] the defendant submitted about this question “the police want to know if Mr Tran has seen the complainant other than that one time in the shop at the butcher shop at Inala”. I accept that the translation is inaccurate. I am unable to see how it is materially different. If the shop was not the defendant’s brother’s shop that would make the question materially different. That error was not suggested in submissions. In oral submissions on the same topic^[30] it was submitted that the police officer’s question was quite simple “has Long ever seen Linh before?”  The complaint identified in oral submissions appears to be that the interpreter should simply have interpreted the words “has Long ever seen Linh before?”. While accepting that the interpreter mistranslated the police officer’s two questions I do not accept that the misinterpretation was material in the way submitted for by the defendant. The defendant seems to imply that the interpreter should not have attempted to interpret the police officer’s first words “other than that one time in the shop at the butcher at Inala, uhm has Linh ever seen Long before?”. The interpreter should have interpreted those words. She misinterpreted them by giving a much longer version which gave detail relating to a visit to the defendant’s brother’s butcher shop at Inala. The materiality of the mistranslation is not obvious to me.

26. [26]
    The defendant supported its submission that the mistranslation was important by reference to the police officer’s question at 162. The question appears above. I accept the submission that the question by the police officer suggests that the police officer has some misunderstanding. There follow a series of questions and answers mistranslated until the exchange identified at 182 when the following was said, in effect:

182.Police to interpreter:  “Can you just tell him that was not answering my question. I asked if someone didn’t know grabs his shirt in the street. Would you feel intimidated?” 

Interpreter to defendant:  “She said your answer like that has not responded the question she had asked you earlier. She asked the question like this. If you were walking on the street then a stranger who you don’t know at all comes and grabs your shirt like that grab shirt like that then do you feel uncomfortable, when they attack you or not?”

Defendant to interpreter:  “That would be the case when somebody does that for no reason at all, but this person he had been owing money. He already knew that he owed, I reminded him to come over to pay that money back, he walked away, I then pulled (him) back saying “brother Linh, you’ve owed for so long, please come and pay the brother. It would be very unfair for my brother that you’d bought (meat) to (re) sell and you wouldn’t pay like that”.

Interpreter to police:  “If someone whom I don’t know and grabs my shirt obviously I feel intimidated. But this case is different because he owed my brother the money and I have to talk to him about the matter and he just walked away and that’s why I grabbed his shirt, I didn’t grab his shirt for no reason.”

27. [27]
    The defendant did not submit, as he might, that various parts of the record should be excluded because they are inadmissible. For example, the defendant did not submit that with respect to the exchange set out at 182 that the police officer’s question should be excluded because it was not put to the defendant, nor does the defendant submit that the interpreter’s statement to the police officer should be excluded because it is not an accurate translation of the defendant’s answer. Instead, the series of mistranslations is raised only to support the application to exclude the entire record. The mistranslations are obvious from the transcript. This series of questions was also identified for the purpose of showing that one could see frustration from the police because the interviewing officer perceived, possibly wrongly, that the defendant was being evasive. That submission is based upon the record of interview. I accept it. The conclusion should be obvious to any reader of that part of the transcript. The officer exhibited mild and temporary frustration which led to her statement at 182.

28. [28]
    The defendant in oral submissions accepted that one might exclude the police officer’s statements as matters to which the defendant had made no response and that one might sensibly leave only the interpreter’s questions to the defendant and the defendant’s responses to the interpreter. The defendant would not be drawn on whether that was sufficient to remedy the unfairness.

29. [29]
    The defendant submitted that the defendant had consented to participate in an interview with police but not in an interview with the interpreter. I accept that this was probably so at the start of the interview.

30. [30]
    It would have become apparent to the defendant during the record of interview from occasions where the interpreter asked questions without the police officer first asking a question that the interpreter was acting differently from a translating machine. It is unlikely that the defendant would have appreciated how extensive the mistranslations were. While I accept that the defendant’s consent was to be interviewed by the police the defendant would have appreciated that there was some subjective input from the interpreter. The record of interview shows that neither the police officers nor the interpreter suggested that the interpreter would be acting as a translating machine without subjective input.

31. [31]
    The next example submitted to be important was the exchange at 237. It was, in effect:

237.Police to interpreter:  “OK, it’s straightful question. He doesn’t need to beat about the bush. Did Linh say you can assault me or you can touch me?  Did he give him permission to touch him at any time? It’s a Yes or No question.” 

Interpreter to defendant:  “Now she asks again did Mr Linh tell you that he permits you to grab him by his shirt or to touch him. Yes No?”

Defendant to interpreter:  “Well he didn’t come to pay the money he owed, then now I saw him, I asked him to come but he walked away then I pulled his shirt just to talk and how would I know he would permit me or not?

Interpreter to police:  “I don’t know about his giving me authority or permission to touch him or grab him by the shirt but all I know is I just want to hold him back to talk to him about the money”.

The defendant submitted that the exchange at 237 and the related exchanges at 238 and 239 show mistranslations, frustration by the police officer evidenced by his request for a simple yes or no answer and they affect the types of questions which the police officer chose to ask. I accept those submissions. Those matters can be seen by reading the transcript. It was also submitted that it was an unfair process.

32. [32]
    Another species of problem in the record of interview was identified as occasions where the interpreter goes further than just asking the question asked and that the interpreter personally interrogated the defendant. The defendant referred me to eleven sets of exchanges of this kind.^[31]  I accept the submission. It is apparent from the transcript.

33. [33]
    Another species of vice identified are occasions where the defendant’s answer is mistranslated to police. Numerous examples were submitted. It is a problem that could be rectified by striking out the mistranslations made by the interpreter to the police officer. They are not evidence of what the defendant said. I accept that it would be unfair for them to remain in the record of interview unless it was for the benefit of the defendant to leave some of the mistranslations. There were no submissions as to whether there are any particular instances where it would be beneficial to leave the mistranslations by the interpreter of the defendant’s words into English.

34. [34]
    The next species of problem identified by the defendant are those questions by the police officer which are answered by the interpreter according to her understanding and without translating the question. I accept the submission relating to the three examples given.^[32]  They are not admissible against the defendant.

35. [35]
    The defendant also submitted that the lack of a video is important where the participants do not speak English. The significance was not further explained. I do not accept that the lack of a video is of any particular unfairness to the defendant where there is no allegation that the record of interview is false.

36. [36]
    The Crown proposes to rely upon some edited version of Mr Nguyen’s transcript in combination with some edited version of the taped record of interview. It is submitted for the defendant that, no matter how cleverly the written document is edited it will weight disproportionately in the minds of the jury. The defendant referred to Driscoll v R^[33] where observations were made upon the exercise of the court’s discretion to admit an unsigned record of interview into evidence at a criminal trial and where there was some doubt as to its authenticity because of the possibility of perjury by police officers. In that context it was observed:

“The danger is that a jury may erroneously regard the written record as in some way strengthening or corroborating the oral testimony. Moreover the record, if admitted, will be taken into the jury room when the jury retire to consider their verdict, and by its very availability may have an influence upon their deliberations which is out of all proportion to its real weight. For these reasons, it would appear to me that in all cases in which an unsigned record of interview is tendered the judge should give the most careful consideration to the question whether it is desirable in the interests of justice that it should be excluded.”

It was further submitted for the defendant that the process of reading a transcript and of hearing the recording would be so complicated for the jury that it would be unfair for the defendant to allow it. A further submission, related to the unfairness of the jury’s having the transcript to read was the submission that some of the interpreter’s translations from Vietnamese to English are inadmissible.

37. [37]
    In this case the defendant does not submit that the record of interview is concocted. The circumstances can be distinguished from those discussed in the observation quoted from Driscoll.^[34]  I accept that the transcript^[35] and the record of interview, if unedited, would be complicated to follow. I accept the submission that some of the interpreter’s translations into English are inadmissible. Many would be. I have not been asked to rule on the admissibility of any particular mistranslation into English. The defendant’s approach on this application is to seek the exclusion on discretionary grounds of the entire record, though parts of it would otherwise be admissible according to the law of evidence, on the basis that to admit the whole of the record would be unfairly complicated. The premise for the defendant’s submission about the complexity of the record of interview and the transcript^[36] is an unstable one. There are many ways in which the record of interview and the transcript may be edited to reduce the apparent complexity. Further, editing could take place to exclude substantial quantities of apparently inadmissible portions of the record. While I have not been asked to rule upon these matters, it would seem to be practical to omit many passages where the interpreter mistranslates Vietnamese into English for the benefit of the police officers. There would be the opportunity to delete some of the police officer’s questions in English where the interpreter mistranslated into Vietnamese. Essentially, it seems to me without the benefit of argument, that most of the complexity could be avoided by a transcript of the accurate English translation of the interpreter’s questions put to the defendant in Vietnamese and an accurate English translation of the defendant’s answers given in Vietnamese to the interpreter. Alternatively, a colour coded version directing the jury’s attention to the accurate translations of the interpreter’s questions and statements to the defendant and his responses would remove most complexity.

38. [38]
    The Crown relied upon R v Lake^[37]. In that case the court held that there were sound practical reasons for allowing the jury to retain transcripts where they had 209 telephone conversations to contend with and where the precise wording of the conversations was of vital importance.

39. [39]
    In Butera v Director of Public Prosecutions (Victoria)^[38] Mason CJ, Brennan and Deane JJ cited with approval the majority judgment in R v Menzies.^[39]  The part of the passage cited with approval, so far as is relevant to this problem, provides:

“…there will be cases in which the aid of an expert is reasonably necessary. For example, there may be the use of a foreign language … In such cases, while there should normally be at least one playing to the jury, the evidence of an expert should be admissible as an aid to the jury. He may be a temporary expert in the sense that by repeated listening to the tapes he has qualified himself ad hoc. And we see no compelling reason why his evidence should not take the form of production of a transcript which can be admitted as an exhibit. Whether the judge allows the jury to have copies of the transcript, as distinct from merely hearing it read, must be a matter for his discretion in the particular case, bearing in mind the requirements of justice and any risk of unfairness to the accused.”

40. [40]
    In this case the parts of the record of interview which are admissible are likely to be, primarily, the parts which are in Vietnamese language. In that circumstance it is likely that, however the record is edited, the most practical way to present the evidence to the jury will be a way which includes an accurate translation into English of the admissible Vietnamese parts of the interview. I am not asked to rule whether the jury should have access during their deliberations to an a transcript of some or all of the record of interview. The prospect that the trial judge may rule that it would be appropriate to allow the jury to have a transcript does not, of itself, persuade me that the whole of the record of interview should be excluded on the basis of unfairness. The defendant’s argument proceeds on the false hypothesis that the whole of the record of interview, unedited, will be placed before the jury together with the entire transcript.^[40]  That would risk unfairness to the defendant. If it were not for the defendant’s submission that mistranslations into English provide context for questions next asked by police and the possibility that the defendant seeks to use of the police officers questions in English to demonstrate frustration or lack of rapport I would allow the application to the extent of excluding the use of the unedited record of interview on the discretionary basis of unfairness but would make clear that the ruling was not intended to exclude those parts, mostly in Vietnamese, which appear^[41] admissible according to the law of evidence. Without argument on the admissibility of the parts it would be wrong to make findings as to what parts are admissible according to the rules of evidence. A transcript of accurate English translations would be necessary on that hypothesis before the edited audio tape could fairly be admitted. The audio tape and transcript contain many questions asked by the police officer in English which were not translated to the defendant. They contain many purported answers given by the interpreter in English to the police officer which are not the true answers of the defendant. Subject to the defendant’s submission that some of these matters are important for context or to show how the police officer and the defendant could not establish a rapport, the relevance of those questions and mis-translated answers is not obvious and nor is their admissibility.

Public Policy

41. [41]
    It was submitted for the defendant that there is a public interest in ensuring that investigations of significant criminal activity are conducted with appropriately qualified interpreters. This interview was conducted at Darra. It is submitted for the defendant that public policy should be to ensure that police in that place will have a level 3 interpreter available who understands the proper role for an interpreter. I accept that there is a significant population of Vietnamese speaking persons at and near Darra. It was submitted that there is a statutory requirement for the Commissioner of Police to have a list of appropriately qualified interpreters. In this case the police officer at Darra contacted an agency in the business of finding interpreters with a request for a Vietnamese interpreter. The defendant conceded that there was no particular criticism that could be made of the arresting officer because it was the first time that she had used an interpreter and did not know what was being said in the Vietnamese language. It was also conceded that the defendant was unable to submit that the Commissioner failed to comply with an obligation to have a list of appropriately qualified interpreters.

42. [42]
    While invoking public policy matters the defendant also relied upon alleged inadequacy in the advice given to the defendant about his rights to have present a lawyer of his choice. I have dealt with that matter under the “Unfairness” heading.

43. [43]
    When considering matters of public policy the defendant conceded that the court would be guided by principles set out in Bunning v Cross.^[42]  It is apparent from that case that in considering whether to exercise the discretion to exclude admissible evidence on the basis of public policy:

“…the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.”^[43]

A number of matters relevant to the exercise of the discretion are set out in the case.^[44]  Was the act inadvertent?  It was. The police officer was unaware that the interpreter did not understand her duty and did not hold the qualifications likely to result in a proper understanding of the duty. Did the nature of the act affect the cogency of the evidence obtained?  To some extent it did. However, generally, discrete parts of the record of interview, which involve questions and answers in Vietnamese can be translated in a way which is accurate. The only submissions made about the cogency of such evidence were those submissions about the frustration of the police officer and the defendant and the lost opportunity for rapport. I do not regard those matters as sufficient to justify excluding the evidence. There was no deliberate misconduct by a police officer. The offence charged is moderately serious and the public has an interest in identifying the offender.

44. [44]
    I do not regard this as a case where the discretion should be exercised to exclude all of the record of interview on the basis of public policy.

Prejudicial Effect and Probative Value

45. [45]
    The third principle invoked by the defendant concerns the general power of a trial court to reject evidence on the ground that its prejudicial effect, that is to say, the danger of its misuse by a jury, not its inculpatory force, outweighs its probative value.^[45]  The defendant submitted that there is a lack of probative value in that there are no admissions to the offence charged and no admissions of conduct consistent with the version given by the complainant. The version given by the complainant is set out in submissions for the Crown. It is that on 31 July 2006 the complainant purchased meat from the Darra Butcher and was loading the meat into the boot of his car when he was king hit from behind. The complainant states that a male person unknown to him grabbed him from behind and pushed him to the ground and started kicking him in the stomach, his side and back and kicked him about four times. The complainant says he got up and the male person grabbed him by the shirt and began punching his face and head about six times. He says he fell to the ground screaming for help and about three people from the butcher shop came to help. Those people held the unknown male assailant back preventing him from attacking the complainant further. The unknown male then identified himself saying in Vietnamese “I am Kiet’s brother from Vui Markets, you owe my brother money and you haven’t fixed him up”.

46. [46]
    The Crown submits there are significant statements against interest in the interview. Regrettably, the written submissions detailing those statements against interest were prepared before Mr Nguyen’s translation of the defendant’s words at the record of interview. In the result, the Crown’s submissions refer to mis-translations by the original interpreter who was present at the interview or to attempts by a subsequent interpreter whose translations were better but flawed. From exchanges at 96, 106, 144, 153 and 185, if Mr Nguyen’s evidence is accepted, the English translation of words spoken by the defendant is:

“(96)I saw that person buy meat in there walking out, I came and said ‘Brother Linh you still owe meat money from Kiet. It has been a long time please pay back to Kiet.’ …

(106)As I’ve already said I asked this person to come and see my brother then he walked away, I then grabbed his sleeve and said ‘Brother Linh, you have owed so long, you should return that money to my brother otherwise it is just not right’. Then he flicked my hand off, he and I then got hold of each other and then other people intervened. Intervened …

(144)Then that person pulled hard to release himself, I grabbed him again, both sides were pulling and pushing then the people came and separate us off …

(153)hellip; he didn’t want to … come and see my brother to pay back the money. Telephoned him but him, then (L) ran into him and reminded him (he) still walked away. That’s why I pulled him back to talk …

(185)… I only pulled his shirt like this, pulled the shirt and then he walked away … Em held (it) like this … I only pull the shirt to say “Brother Linh, (you had) owed money for too long. You should pay back to my brother otherwise it would be very unfair for my brother if you do business like that” only pulled the shirt … the people intervened.”

47. [47]
    Those statements, if admissible, do have probative value as statements against interest. They tend to prove that the defendant had physical contact with the complainant, that they had hold of each other and that people intervened to separate them.

48. [48]
    If the entire record of interview with the transcript^[46] were provided to the jury there would be some risk of misuse by the jury of the tape recorded interview and of the transcript. With respect to the record of interview the English questions asked by the police officer and the English mis-translations given by the interpreter are likely to be more readily recalled than the Vietnamese words which would be meaningless to the jury. The questions asked by the police officer were questions not understood by the defendant and mostly were mis-translated, sometimes in a material way, by the interpreter. The interpreter’s English translations audible on the tape are usually mis-translations and sometimes in a material way. There is danger of their misuse by the jury.

49. [49]
    There are ways to satisfactorily reduce the danger of misuse by the jury. If the defendant continues to press for the inclusion in the record of interview and the transcript of the English words of the police officers and the interpreter despite the fact that they could not be understood by the defendant the danger of misuse is greater. That danger can be lessened by directing the jury that none of those English words audible on the audio tape and none of the English words spoken by the police officers appearing in the record of interview nor those spoken by the interpreter to the police officer and appearing in the transcript of the record of interview are admissible against the defendant and to direct as to the purpose for which they are admitted. The danger could be minimized further by highlighting the words in the transcript which are admissible as statements against interest and the questions which provide context for the defendant’s answers. They will primarily be confined to the accurate English translations of the Vietnamese words spoken by the defendant and the interpreter during the record of interview. I have not been asked to rule upon any particular method. The ruling sought from me is in respect of the exclusion of the entire record on a discretionary basis. I set out these examples of ways to minimize the danger of misuse merely to explain why I regard it as inappropriate to rule that all of the interview should be excluded on the discretionary basis.

Conclusion

50. [50]
    The defendant’s application to exclude the audio tape of the record of interview is to exclude the sum of the parts and each part as well. Having ruled that the entire record is not to be excluded as inadmissible hearsay the application is based almost exclusively on discretionary grounds.

51. [51]
    There is much force in the submission that the presentation of the entire audio tape of the record of interview when accompanied by Mr Nguyen’s translation^[47] would be unfair to the defendant and there would of the danger of misuse of it by the jury. However, the features of that evidence which are most capable of making it unreliable and liable to misuse by the jury are the inclusion of the police officer’s words spoken in English and the interpreter’s words spoken in English. Currently, the defendant submits that they should be retained if the record of interview is to be admitted.

52. [52]
    The dangers of unreliability and misuse of the audiotape are so great that the record in its entirety should be excluded unless steps are taken to avoid unfairness and danger of misuse. I regard the dangers of unfairness and misuse as being capable of being satisfactorily minimized partly by use of a transcript^[48] of the accurate English translations of the admissible parts of the Vietnamese words spoken during the interview. It might be done by the removal of most of the English words spoken leaving only such of them as may be necessary for explaining the defendant’s answers or conduct during the record of interview or by colour coding for emphasis the accurate English translations of the Vietnamese questions and answers spoken during the record of interview. Directions to the jury in combination with either or a mixture of such steps would be capable of adequately dealing with unfairness and danger of misuse. For that reason I decline to exclude on a discretionary basis the Vietnamese parts of the record of interview. Neither party asks for exclusion on a discretionary basis of the English parts despite the risk of confusion inherent in their inclusion. Nor does the defendant ask for a ruling on the admissibility of the English words spoken, without being understood by the defendant, despite the likelihood that those words are mostly inadmissible.

53. [53]
    On those bases I order that the application to exclude the record of interview be dismissed.