R v Bastos de Freitas[2012] QDC 354

DISTRICT COURT OF QUEENSLAND

HIS HONOUR: The defendant seeks the exclusion from evidence of a videotaped police interview with him, conducted on the 2nd of July 2011 at the Southport Police Station, Exhibit 6. The typed record of the interview is Exhibit 3 and extends for 82 pages until 11.28 p.m. The interview commenced at 9.36p.m.

The defence contends that the defendant's participation in the interview was not voluntary, or alternatively the interview should be excluded in the exercise of the discretion on the basis that it would be unfair to the defendant to admit it because it was conducted in English, which is not the defendant's native language. He is a Brazilian and his first language is Portuguese.

The charges against the defendant are two counts of rape and two counts of assault occasioning bodily harm. The complainant is the same for each count.

The facts are summarised in the Crown's written submissions, Exhibit 2, at paragraphs 3-16, as follows:

3. The defendant has been indicted with [sic] two counts of rape and two counts of assault occasioning bodily harm. The offending is alleged to have occurred during the early hours of the morning of Friday 1 July 2011. The complainant, T.T. (22 years), is a Welsh national who was visiting Australia.

4. The defendant is a Brazilian national who was aged 24 years at the time of the offending, and working in Australia.

5. Earlier in the evening of Thursday 30 June 2011 the complainant had been to a nightclub at Surfers Paradise and elsewhere with friends. After midnight on 1 July 2011, she attended the Vanity Nightclub located at Surfers Paradise with friends. Here she met the defendant for the first time. They later left the nightclub together, at approximately 3.30 am, and walked to a friend's apartment (Monk's apartment). The complainant says that they were both affected by alcohol and that the defendant seems [sic] more affected than she was.

6. Whilst talking at this apartment the defendant told a friend of the complainant (Louise MONK) that his name was Fernando and when the complainant said to him that she said she thought his name was Daniel her [sic] responded "No it's Fernando." After a short time the defendant suggested that they both go to the beach.

7. As they were about to leave the complainant recalls that her friend (MONK) told the defendant that he had left his wallet on the coffee table, where he had placed it upon his arrival, and where the complainant had also placed her mobile phone (which she mistakenly left behind when they left). The complainant says that her friend (MONK) gave the defendant his wallet and the defendant placed it in one of his pockets. Louise MONK confirms seeing the complainant place her bag and phone on the table and the defendant placing his wallet, cigarettes and phone on the table, but does not mention the incident where, to the complainant's recollection, she gave the defendant his wallet back.

8. MONK also indicates that she knew a male named Fernando as the complainant's boyfriend and the complainant was upset that night about Fernando cheating on her. She does not know the name of the defendant and that whilst the complainant and the defendant were at her apartment MONK telephoned Fernando but the complainant took the phone off her and hung up.

9. The complainant and the defendant went across the road towards the beach and sat down on the sand near the fence. The defendant then questioned the complainant in relation to the whereabouts of his wallet and grabbed her handbag and tipped it upside down. He seemed so angry that the complainant told the defendant that he could also check her pockets.

10. The defendant then pushed the complainant and she landed on her back on the sand. He [sic] defendant sat on her waist area and straddled her holding her hands with his wrists so that her hands were level with her head. He repeatedly demanded to know the whereabouts of his wallet. He punched her to her right eye and told her "I'll kill you, you don't matter to me." He then commenced punching her in the face and her ribs a large number of times. (Count 1)

11. He then half turned her over and pushed her down into the sand and held her head into the sand so that sand entered her mouth. She repeatedly offered to help him look for his wallet and at one stage she was on all fours sweeping the sand in an effort to find his wallet whilst he held the back of her head and hair.

12. He then pushed her back onto the sand and held her down with one arm against her shoulders and undid her belt and removed the complainant's shorts and underpants. He laid on top of her removed his pants and pushed his erect penis into her vagina thrusting his penis in her vagina. As this was occurring he repeatedly said, "Where is my fucking wallet?" (Count 2) She managed to move and stand up. He punched her in the head and sat back down on the sand, feeling dizzy, and then she fell back down to the sand. (Count 3)

13. He then told her to "Suck my cock." He was lying on his back and she crawled over to him. He then pulled her head towards his penis and he pushed his erect penis in and out of her mouth. (Count 4) He then pulled his penis out of her mouth and put his pants back on and also gave her shorts to her. She dressed and walked back toward the road with the defendant following behind her.

14. She crossed the road and saw a man who appeared to be working in a complex and asked him to help her. He contacted the police and ambulance.

15. Medical examination of the complainant revealed bruising to her lower lip, cheeks, nose, forehead, both ears, behind her left ear, her right eye, her hands, both forearms, both upper arms, both shoulders and tenderness behind her right thigh. No genital injuries were noted.

16. On Saturday 2 July 2011, Det. Sgt Toni LEWIS, together with PCSC Tony ANDERSEN and PCC Jason KUIT attended Melba's Nightclub during the evening. They spoke to the defendant in the kitchen area.

Leaving aside the defendant's interview with police, there is at least evidence from the complainant, her friend, Louise Monk, perhaps the man who called the police and the ambulance, and the medical evidence of the injuries suffered by the complainant. Suffice is to say that what the defendant said to police in the interview is not the only evidence against him.

In my view, it would quite illusory to think that the defendant had a real choice as to whether he accompanied police from Melba's Nightclub, where he was working in the kitchen. He was aware of the presence of three police officers, and these were the detectives. There were in fact, five police officers on the premises. The other two were uniformed police.

The defendant contends that the police did not comply with section 33 of the Responsibilities Code, which is contained in Schedule 10 to the Police Powers and Responsibilities Regulation 2000. Section 33(1) and (2) are in the following terms, so far as is relevant:

Detective Sergeant Toni Lewis said she introduced herself to the defendant, in the kitchen. She continued, from her statement, Exhibit 5, page 2 as follows:

I showed him a photograph of the complainant and said "Do you know this girl?" The defendant replied that he did. I then said, "She has made an assault complaint, are you willing to return to the Surfers Paradise Police Station with us to discuss this matter. Understand you do not have to do this if you do not wish, however we can't speak here, so would like you to."

Sergeant Lewis said it was too noisy in the kitchen. She also said she would have arrested the defendant, had he not agreed to accompany police to the police station.

The defendant did not take all his personal belongings with him to the police station. He said police wouldn't let him changes clothes and his mobile phone was left at Melba's.

The defendant said he was only shown a photograph of the complainant during the interview and not at Melba's. Senior Constable Andersen does not mention a photograph being shown to the defendant at Melba's and Constable Jason Kuit, said he did not see this happen.

"Asulto", in Portuguese means, "robbed", or "to rob or steal". It does not mean rape, or sexual assault. "Asulto sexual", has no meaning in Portuguese. "Abuso sexual", in Portuguese means, "sexual assault". There was therefore potential for confusion about the nature or purpose of police inquiries right from the start.

The defendant said he knew at the interview at the police station, more or less, why police wanted to speak to him because he did have a "relationship" with the girl in the photograph shown to him. He said he understood he was being questioned about an incident with the girl.

The defendant considered that he had no choice but to accompany police to the police station. He said, though (T2-24):

"Well, I had no problem going with her, that's the thing. I just insisted that at the moment I was really, really busy and at that day the whole Melbas was busy and that I could go with her at another time or I could discuss about that at another time but she insisted that I had to go with her."

In the circumstances, whilst I am not satisfied that he had a real choice whether to accompany police to the police station, I am not satisfied that he did not, when at the police station, participate in the interview in the exercise of a free choice to speak or remain silent.

My view is different on the question of unfairness. I think it would, in all of the circumstances, be unfair to the defendant to admit the interview.

The defendant came to Australia from Brazil in April 2009, not February 2009, as Sergeant Lewis put to him. He didn't speak English when he arrived. He attended two English language schools, the first for five months, Monday to Thursday, in the mornings, and Friday was for social interaction, and the second for four months. His English now is much better than it was at the time of the interview and he says he can now "understand a little bit better, what happened that day". (T2-25).

There are two relevant statutory provisions in relation to interpreters. Section 433 of the Police Powers and Responsibilities Act 2000, provides as follows, as far as is relevant:

I am satisfied that at the time of the interview the defendant was unable to speak with reasonable fluency in English, because of inadequate knowledge of the English language. I don't think he was capable of understanding all of the questions put to him, or, at the start at least, what the interview was to be about, that is, the reason for the questions, or that he was capable of effectively communicating his answers.

I am satisfied, from her evidence, and from a consideration of the record of interview, that Detective Sergeant Lewis reached a point early in the interview, when she actually and reasonably suspected that the defendant was unable, because of inadequate knowledge of the English language, to speak with reasonable fluency in English. Questioning should not then have been continued until an interpreter was present. See The Queen v. Cho [2001] QCA 196 at paragraph [28].

The defendant gave evidence with an interpreter. It was clear that he understood many of the questions and could answer them, but on a number of occasions he required the assistance of the interpreter to understand what was being asked of him.

The dictionary definition of "fluent", is "able to speak or write readily, that is, quickly, easily, properly"; the language should flow relatively smoothly. In my view, fluency also involves meanings, comprehension and understanding. It encompasses more than an apparently responsive answer, or responses which appear to represent an appreciation or understanding of the question. It also involves an understanding of what the question is about.

Fluency means more than giving apparently responsive answers to simple questions. It involves more than focusing on key words, which is what the defendant said he was only able to do, and trying to understand the meaning of the rest of the question by reference to those key words. The defendant understood key words but not all words.

Understanding some, or key words, is not the same as understanding and appreciating or comprehending issues, concepts, meanings and nuances associated with questions, which I consider to be part of fluency in a language.

I watched the interview, and superficially the defendant was numerate and generally appeared to understand many of the questions. In my view, Sergeant Lewis spoke far too fast, certainly when explaining what the interview was about and what the defendant's right were, including the caution. An English speaker would have had difficulty following her. It was frustrating how fast she spoke. She spoke as if she was speaking to a person whose first language was English.

I am not satisfied that when he said he understood questions, he in fact understood them, unless the questions were short and simple, and even then his answers were not always sensibly responsive.

At the start of the interview Sergeant Lewis referred to what she said at Melba's about "an assault complaint". She said, at a rapid rate, "As I've explained, there is an assault complaint and a sexual assault complaint that has been made in relation to a person by the name of T.T., and this assault is alleged to have occurred on the 1st of July 2011, in the early hours of yesterday morning, Friday morning. Okay. You're aware that's the reason that you are here?". And he replied, "Yep.". I am not satisfied he would then have known that rape was alleged against him, or that something more than robbery or stealing was alleged.

Later, at page 13 of the record of interview, Sergeant Lewis said again, "Now, as I said, a complaint's been made, an assault complaint which occurred at Surfers Paradise on the 1st of July 2011, so that's in the early hours of Friday morning. Can you tell me what you were doing from Thursday night?".

In relation to the second statement by Sergeant Lewis, on page 3 of the record of interview, about contacting friends, relatives or a lawyer, I think it likely that the defendant understood the last question only, in that statement, namely, "Is there anyone you wish to telephone or speak to?". To which his response was, "Not at this time.".

He didn't have his phone which contained details of persons he could contact for assistance.

The interview went off the rails early. At page 4 he was told that as he was from Brazil he had the right to contact the Brazilian Embassy. He was asked if he wished to contact the embassy and said, "Yeah.". Sergeant Lewis said, "You do?". He said, "I think so. It's in Brasilia, not far from my home town. It's not really close but.".

The interview continued as follows at pages 4-5:

There was then a pause in the interview. Six minutes later the interview resumed at 9.46 p.m. The defendant was then told that police had unsuccessfully tried to contact the Brazilian Embassy and was asked, "Is that correct?", to which he said, "Yep.".

He said that at this stage he didn't understand that he could stop the interview. He thought he had to continue. The way the interview proceeded re-enforces in my mind, the correctness of the opinion formed by the defendant.

Sergeant Lewis continued with the interview in the following way at page 6:

So far he had said to police, "I really don't know what happened, why I'm here. Guess I want to know first" to which Sergeant Lewis had responded:

3. (1)
   "This is your opportunity. What I will do is go through the complaint that's been made and you can comment, if you wish" to which the defendant said, twice, "I think it's better" and

3. (2)
   "At this stage what I'd like to do is explain to you the allegations and the complaint that's been made."

    

The last statement is at page 6. It was not until the last question on page 55, that Sergeant Lewis commenced to do this.

Senior Constable Andersen said that at this stage he believed the defendant "was still questioning as to why he was" at the police station, that he was wanting to know details of what was alleged against him (T2-15).

In my view, most of what the defendant requested was ignored. This whole process was quite unfair to the defendant in any event, and more so because of the language difficulties which obviously existed.

The interview continued for a page and a-half and then there was a long pause where it was obvious that Sergeant Lewis was thinking about the situation which had developed. She was clearly thinking about what she do in the situation where the defendant was clearly having difficulty with the English language. She gave this evidence at T1-37-38.

It seems to me that at this stage in the interview Sergeant Lewis in fact had concerns then as to whether the defendant was in fact understanding what was going on.

I am unable to accept her evidence that she was not concerned about whether he understood the reason for questions, or his ability to effectively communicate answers. In fact I think she was and that is why she asked if he wanted an interpreter. No other sensible interpretation is realistic. After the long pause the interview continued as follows at pages 7-8:

The response to the question about whether he wanted an interpreter, namely, "I'd prefer things better", is reflective of his communication skills. When he was asked if he was "having problems understanding?" what Sergeant Lewis was saying and he answered "Sometimes," it was, in my view, encumbent upon Sergeant Lewis to ask what he may not have understood so far and she should also, in fairness, have obtained an interpreter notwithstanding the defendant's stated willingness to continue without one, however inconvenient this may have been. I am not satisfied that the defendant had in fact understood everything that had been said to him up to this point in the interview.

Senior Constable Andersen said the defendant appeared to understand a lot but might have struggled with some questions. Of the question by Sergeant Lewis, "Are you happy to continue this or do you want an interpreter?", Senior Constable Andersen said this "is a question you'd normally ask of a person who is struggling a little." (T2-11).

He also said (T2-12) "there were some concerns" about his level of understanding the English language and that on occasions he struggled to answer "seemingly basic" questions. He said that had the defendant "spoken to an interpreter, then it could have been to his benefit obviously." (T2-12).

He also said (T2-16) that at this stage he was of the view, like Sergeant Lewis, that the defendant required the assistance of an interpreter. He said that it was because of the difficulties in communication that Sergeant Lewis asked the defendant if he wanted an interpreter.

I cannot accept the Crown's submission that the defendant, "withdrew" his request for an interpreter. Realistically one was required and it is artificial to suggest otherwise, with respect.

The fact that this is probably so is apparent from the many later questions that, judged from his responses, he did not appear to understand. These are highlighted in the defendant's further written submissions, Annexure A, at paragraphs 6-36 with which I agree.

In addition, his response, 1.30 - 2 o'clock in the afternoon, at page 17, should be compared to 1.30 or 2 a.m. in the morning, at page 18. He was clearly having difficulty explaining things.

The fact that some other answers seem responsive to questions does not necessarily mean that the defendant understood the questions in all respects. It is not possible to exclude the fact that other questions may also have been misunderstood and I did not understand Sergeant Lewis to disagree that this could be the case.

The Crown's further written submissions are a valiant and technical attempt to justify admission of the interview, but at the end of the day do nothing to dispel the disquiet I felt about the whole interview and whether it was conducted in circumstances in which it would not be unfair to use it in evidence against the defendant.

Fairness requires a process which is realistically understood by both sides and which each comprehends what the other is saying. I am far from satisfied that such a process existed here. I am not satisfied that always, when the defendant said he understood something, that he in fact understood it.

The Crown's submissions assume that apparently responsive answers equate with an understanding of the question, and I am not satisfied that this is necessarily so. It is tempting to leave these issues as questions of fact for the jury, but that would avoid a decision in circumstances where one should now be made. To do so, would, I consider, pass to the jury what is something I have to decide.

There are issues of unfairness here, discretely related to language difficulties and they are at such a level that I have no option but to conclude that it would be unfair to the defendant to admit the interview in evidence.

It is not necessary to decide whether the interview was conducted illegally. In the absence of an interpreter it was, in my view, conducted unfairly and improperly. It would have been easy, albeit inconvenient to the police, to delay further interviewing the defendant until an interpreter was obtained. Sergeant Lewis seemed to me to want to interview the defendant on her terms rather than equal terms.

In my view, the defendant was not able, in the absence of an interpreter, to fairly acquit himself and properly or adequately respond to the questions asked of him and the allegations made against him. It was, in these circumstances, improper to interview him without an interpreter and the failure to provide an interpreter had a material effect on the ability of the defendant to give a proper account of events such as they were explained and understood by him. The interview would most probably have been delayed only by the time taken to obtain an interpreter. It would still, I think have take place but then in circumstances where the defendant could have sensibly responded, if he wished, to any questions police wished to ask him.

For these reasons the interview will be excluded.