Category Archives: s. 030

SH v Regina [2012] NSWCCA 79 (3 May 2012)

CRIMINAL LAW – appeal – conviction – evidence – sexual intercourse with person aged under 10 years – complainant gave unsworn evidence – Court did not tell complainant that she should feel no pressure to agree with statements she believed were untrue – whether Evidence Act 1995 (NSW), s 13 complied with – whether non-compliance necessitates upholding appeal – whether miscarriage of justice

EVIDENCE – witnesses – competence – unsworn evidence – requirement that Court tell witness about to give unsworn evidence that he or she should feel no pressure to agree with statements that he or she believes are untrue – whether Evidence Act 1995 (NSW), s 13 complied with – whether witness competent to give unsworn evidence if not given required direction

Tsang v DPP (Cth) [2011] VSCA 336 (7 November 2011)

CRIMINAL LAW – Appeal against conviction and sentence – Importing commercial quantities of border controlled drugs – s 307.1 of the Criminal Code 1995 (Cth) – Conspiracy – Admissibility of evidence – Hearsay – Statements made by a third person co-accused in the absence of the accused – Whether trial judge erred in ruling that intercepted telephone calls were admissible – Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87 and Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1 considered

CRIMINAL LAW – Appeal – Jury directions – Whether substantial miscarriage of justice occurred – Whether judge erred in failing to provide directions on the applicant’s use of an interpreter – Whether judge erred in not advising the jury to ignore the prosecutor’s remark that the applicant was ‘hiding behind an interpreter’ – Appeal dismissed

CRIMINAL LAW – Sentence – Assessment of applicant’s role in offending – Parity – Whether sentence manifestly disparate to sentence of co-accused – Totality – Whether sentencing judge erred in failing to take into account period of imprisonment served in Canada – Whether sentencing judge erred in finding that there were no relevant mitigating factors – Appeal allowed – Applicant re-sentenced

Assessing any abuse of the use of an interpreter – is this a matter for the jury?

102 The first question is whether the Crown is permitted to make submissions as to whether the use of an interpreter is being abused or used for tactical advantage. In other words, is the assessment of the existence or extent of any abuse of the accused’s use of an interpreter a matter for the jury? We accept that such assessment is a proper matter for the jury, subject to appropriate directions by the trial judge.

103 The issue must be seen and assessed in its proper context. The issue is not whether the accused was entitled to use an interpreter. An accused person whose first language is not English has a right to an interpreter paid for by the State. This is an important right and is critical to ensuring a fair trial.[47]

FN 47
[47] Section 30 of the Evidence Act 2008 (Vic) permits evidence to be given through an interpreter unless a witness can understand and speak English sufficiently so as to enable the witness to understand and respond to questions. Section 30 has the effect of changing the onus. A person is entitled to an interpreter unless the court orders otherwise. As the Australian Law Reform Commission stated in its interim report on the proposed change to the Evidence Act (Australian Law Reform Commission, Evidence, Report No 26 (1985) [611]), ‘the possibility of abuse exists whatever approach is taken. The proposal gives the trial judge control over the situation.’ It should be noted that s 30 only came into operation on 1 January 2010 and accordingly, was not in operation at the time of the trial. However, prior to the commencement of s 30, the right to the free assistance of an interpreter when required was regarded as one of the attributes of a fair trial.

De La Espriella­velasco v The Queen [2006] WASCA 31 (10 March 2006)

[2006] WASCA 31
Criminal law and procedure – Defence of duress – Whether trial Judge should have put to jury – Disallowance of answer to question in re-examination relating to duress – Whether appropriate to disallow – Admissibility of conversation between accused and his wife at prison whilst wife assisting with translation of prosecution brief – Wife made available for this purpose at instruction of the Court – Whether conversation privileged

Criminal procedure – Whether admission of evidence unfair – Whether prosecution entitled to use evidence of conversation against accused in cross-examination – Failure to disclose before cross-examination – Whether splitting of case by prosecution – Jury permitted by Judge to take English translations of recorded conversations home overnight – Whether this occasioned miscarriage of justice

Criminal law and procedure – Interpreter – Whether standard of interpretation sufficient for fair trial of accused – Whether interpreter competent – Whether errors in interpretation denied accused a fair trial

Absence of the witness – Person charged, but discharged by Court of Petty Sessions at request of prosecution – Allowed to leave Australia – Whether prosecuting authorities had obligation to keep witness in the country

Criminal law and procedure – Fresh evidence – Statements of witnesses about violent events in Colombia after trial – Whether evidence admissible as relevant to question of duress

Criminal law – Sentence – Life imprisonment with non-parole period of 26 years – Whether non-parole period excessive – Parity with co-offenders – Role played by appellant

Evidence Act 1906 (WA), s 133, s 134
Evidence Act 1995 (Cth), s 30

Ebatarinja v Deland [1998] HCA 62; 194 CLR 444; 157 ALR 385; 72 ALJR 1499 (30 September 1998)

[1998] HCA 62

Criminal procedure – Committal proceedings – Jurisdiction of Magistrate to hear committal proceedings – Proceedings to be conducted “in the presence or hearing of the defendant” – Whether essential that defendant understand and follow the proceedings – Deaf, mute and illiterate defendant – Whether an order for prohibition should be made.

Criminal procedure – Committal proceedings – Requirement in Justices Act 1848 (NT), ss 110 and 111 that Magistrate address defendant in certain terms – Whether mandatory or directory.

Criminal procedure – Committal proceedings against defendant not possible – Whether Crown may proceed by way of ex officio indictment.

Words and phrases – “in the presence or hearing of the defendant”.

Justices Act (NT), ss 106, 110, 111.