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

http://www.austlii.edu.au/au/cases/vic/VSCA/2011/336.html

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.