DPP v Natale

(iii) The third area of discretion arises where, as distinct from questions of unfairness to the accused, the evidence was unlawfully or improperly obtained.[100] Bunning v Cross,[101] especially the joint judgment of Stephen and Aickin JJ, has always been accepted as establishing a separate 'public policy' discretion for the rejection of admissible evidence.[102]

58 The purpose of s 138(1) reflects its common law origins. As Mason CJ, Deane and Dawson JJ explained in Ridgeway v The Queen:

The basis in principle of the discretion lies in the inherent or implied powers of our courts to protect the integrity of their processes. In cases where it is exercised to exclude evidence on public policy grounds, it is because, in all the circumstances of the particular case, applicable considerations of 'high public policy'[103] relating to the administration of criminal justice outweigh the legitimate public interest in the conviction of the guilty.[104]

This systemic public policy focus is different to the focus of s 90, which is to ensure the procedural fairness of the accused's trial (see above).

Obtaining evidence 'improperly' and in 'contravention' of law

59 The words 'improperly' and 'contravention' in s 138(1) are not defined. In the Dictionary in the Evidence Act, 'Australian law' is defined to mean 'a law of the Commonwealth, State or a Territory' and such a law is defined to mean 'a law (whether written or unwritten) of or in force in that place'. The Crimes Act and the Charter are Australian laws within this definition.

60 To understand what may be 'improperly' obtained evidence, the origin of s 138(1)(a) and (b) points to what was considered to be improper at common law. That was expressly discussed in Ridgeway.[105] Mason CJ, Dean and Dawson JJ held that the discretion to exclude evidence at common law arose with respect to 'conduct which is not criminal but which is quite inconsistent with the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement'.[106]

61 Taking that as the reference point, Basten JA (Barr J agreeing) decided in Robinson v Woolworths Ltd that

the identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as 'the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement'. Secondly, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be 'quite inconsistent with' or 'clearly inconsistent with' those standards. Thirdly, the concepts of 'harassment' and 'manipulation' suggest some level of encouragement, persuasion or importunity in relation to the commission of an offence ...[107]

Only the first two of those propositions are relevant in this case.

62 In the present case, the impropriety and the contravening run together. The failure of the police to arrange for the presence of an interpreter when questioning the accused (who was under arrest) contravened two Australian laws: s 464D(1) of the Crimes Act and s 38(1) of the Charter. The contravention of s 464D(1) of the Crimes Act occurred because that provision imposed upon the interviewing officer a duty that he did not perform. The contravention of s 38(1) of the Charter occurred because relevant human rights were engaged (see below) and, as a public authority under the Charter, the officer was obliged to act consistently with those rights, but he did not. As I held in DPP v Kaba, 'acting or making decisions in contravention of an obligation imposed by s 38(1) of the Charter represents a contravention for the purposes of s 138(1) of the Evidence Act'.[108]

63 Non-compliance with the obligations imposed by s 464D(1) of the Crimes Act and s 38(1) of the Charter was also improper, for these provisions do not only specify legal obligations. They specify minimum standards that society expects law enforcement officers to observe. What I explained in Kaba by reference to s 38(1) is equally applicable to s 464D(1):[109]

Under s 38(1) of the Charter, it is 'unlawful' for a public authority to act in a way that is incompatible with human rights or to fail to give proper consideration to human rights in making a decision. Section 39(1) contemplates relief or remedy being given in respect of such unlawfulness in the specified circumstances. As police are public authorities under the Charter,[110] it is a source of the standards expected of law enforcement officers in Victorian society. This is relevant to determining whether police actions are improper under s 138(1) of the Evidence Act. Further ... in a case like the present, this too will likely be contrary to or inconsistent with the individual's rights under the ICCPR, which will be a relevant discretionary consideration under s 138(3)(f). [emphasis added]

This reasoning is consistent with s 139(1)-(2), which deems to be improper under s 138(1)(a) questioning of persons under arrest or official questioning without a caution being administered, and s 139(3), which requires the caution to be given or translated into 'a language in which the person can communicate with reasonable fluency'.

64 The circumstances of the case therefore engage the court's powers to exclude evidence under s 138(1). An important matter in the exercise of that power is 'the gravity of the impropriety or contravention' (s 138(3)(d)), which is linked to s 138(3)(f) (see below). Consideration of that matter calls for examination of the fundamental rights and interests that are protected by the obligation in s 464D(1) of the Crimes Act and s 38(1) of the Charter in relation to the interrogation by police of suspects who speak limited English. I will begin with the importance of rights protection under s 138(1) and (3) generally and the role of s 138(3)(f) particularly.

Protection of human rights under s 138(1) and (3) of the Evidence Act

65 The Evidence Act 2008 (Vic) was based on the Evidence Act 1995 (Cth), which was largely based on reports of the Australian Law Reform Commission.[111] Like s 138(3)(f) of the Commonwealth Act, s 138(3)(f) of our Act provides that, when determining under sub-s (1) whether to exclude improperly or unlawfully obtained evidence, the court must take into account:

whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; ...

The relevance of this paragraph is emphasised by the note at the foot of s 138(3) which reads: 'The International Covenant on Civil and Political Rights is set out in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 of the Commonwealth'.

66 The origin of s 138(3)(f) may be traced back to the recommendation made by the ALRC (then named the Law Reform Commission) in 1985 that, when enacting comprehensive evidence legislation, the Commonwealth Parliament should not adopt the course of disregarding unlawfulness or impropriety in obtaining evidence. Respect for human rights was a significant reason:

such an approach would force trial judges to ignore serious infringements of human rights by law enforcement authorities. It would be inconsistent with the historical role of the courts in ensuring that the criminal process is fair, to require them to disregard impropriety occurring during criminal investigation and before trial. Further, such an approach would ignore the reality that, on occasion, there are no real alternative methods [to challenging the admissibility of the evidence] available to an individual citizen whose rights have been infringed.[112]

The ALRC went on the make suggestions about the structure and content of what became s 130 of the Evidence Bill 1991 (Cth). Section 130(3)(f) of that Bill, which is in the same terms as s 138(3)(f) of our Act, reflected its recommendation that infringement of rights should be addressed in the exercise of the exclusion discretion:

(f) Infringement of Rights of Accused. The trial judge should expressly consider the extent to which the individual accused's rights have been infringed. While this factor may be seen as an aspect of the seriousness of the misconduct, it is more appropriate to deal with it separately, given the specific public interest in protecting individuals from infringement of their rights.[113]

67 The general policy that the infringement of human rights must be expressly considered when determining whether to exclude improperly or unlawfully obtained evidence was expressed in the enacted legislation by reference to the rights of persons under the ICCPR. A number of provisions of the ICCPR specify and protect the fundamental rights and freedoms of persons who may be engaged in the processes of criminal justice. The application of the relevant rights in the ICCPR is not confined to the final hearing and determination of criminal charges but extends to police arrest and interrogation.[114] As relevant here, the main[115] rights are those specified in arts 14(1) and (3) and 26.

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

Article 14(3) specifies a number of particular rights applying in the determination of criminal charges against persons (which encompass aspects of investigative processes), as follows:

In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(c) To be tried without undue delay;

(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;

(g) Not to be compelled to testify against himself or to confess guilt.

Article 26 is the equality and anti-discrimination provision:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

69 The general terms of arts 14(1) and (2) and the specific terms of arts 14(3)(a) and (f), as well as the terms of art 26, operate to protect persons who might not be capable of effectively exercising their rights in the processes of criminal justice because they are not sufficiently proficient in the language customarily used in the courts or by police which, in Australia, is English. It was plainly understood that the rights-protecting sections of the Evidence Bill 1991 (Cth), which engaged these provisions of the ICCPR, when enacted, would be particularly important in relation to the potential exclusion of evidence obtained during the interrogation by police of such persons. For example, in a report in 1992, the ALRC discussed the subject of 'Interpreters in the investigation of crime' in which it stated:

The _Evidence Bill 1991 (_Cth) cl 130 provides for the exclusion of evidence on various grounds, several of which may apply where an interpreter was not present during interrogation. The Bill creates a presumption that improperly obtained evidence - including evidence obtained in contravention of a law - is not to be admitted. It reverses the onus placed on the defence at common law. This provision makes it clear that evidence obtained in the absence of an interpreter when one should have been used is evidence improperly to be obtained and therefore prima facie to be excluded. Further, when weighing the desirability of admitting the evidence against the undesirability of admitting evidence improperly obtained, the court is directed to take into account whether the impropriety infringed any right recognised in the ICCPR.[116]

The Evidence Bill 1991 (Cth) was enacted as the Evidence Act 1995 (Cth), which led to the Evidence Act 2008 (Vic), with that plain understanding.

70 The language of s 138(3)(d)-(f) of the Evidence Act generally and s 138(3)(f) specifically, together with the strong rights-protecting purpose of these provisions, make clear that improper or unlawful police conduct which is contrary to or inconsistent with the rights of persons under the ICCPR is an aggravating consideration when assessing the gravity of the impropriety or contravention under s 138(3)(d). In Kaba is to be found a discussion of the close attention paid to cognate human rights in comparable jurisdictions in relation to discretionary exclusion of improperly or unlawfully obtained evidence.[117] As that discussion reveals, a breach of human rights by police in the course of obtaining evidence is treated as a matter of significant importance when balancing the considerations for and against the exclusion of such evidence, which is consistent with the position under our s 138(3)(d)-(f).

71 In the present case, the failure by police to arrange an interpreter for the accused and delay the questioning until one was available was an obvious case of (indirect) language discrimination contrary to art 26 of the ICCPR. Because language is an incident of race (as that concept is understood) and national origin (the accused is an Italian immigrant), it was discriminatory on those grounds as well. Police interrogated the accused to his disadvantage in English, which he could not sufficiently understand because his natural language was Italian and he was not sufficiently proficient for the purpose in English. Under s 138(3)(f), this is an aggravating consideration when the gravity of the impropriety or contravention is considered under s 138(3)(d).

72 Although it is probable that the questioning of the accused in English also contravened rights applying to him under arts 14(1) and (2) of the ICCPR, the gravamen of the breach of human rights that occurred was that the conduct of police was discriminatory, which is covered expressly by art 26. I will therefore confine myself to that provision.

73 Section 464D(1) of the Crimes Act has an important role to play in protecting the rights of suspects who speak no or poor English, as does s 139(1)-(3) of the Evidence Act. Further, art 2(1) of the ICCPR obliges Australia to 'respect and ensure' the specified rights 'to all individuals ... without distinction of any kind, such as race ...language ... or national ... origin ...' Section 464D(1) is consistent with that obligation, as is s 139(1)-(3) of the Evidence Act. I will consider them next.

Questioning suspects with an interpreter: s 464D(1) of the Crimes Act and s 139(3) of the Evidence Act

(1) If a person in custody does not have a knowledge of the English language that is sufficient to enable the person to understand the questioning, an investigating official must, before any questioning or investigation under section 464A(2) commences, arrange for the presence of a competent interpreter and defer the questioning or investigation until the interpreter is present.

75 Section 464D(1) was enacted by the Crimes (Custody and Investigation) Act 1988 (Vic). Director of Public Prosecutions v Toomalatai[118] discusses the importance of this legislation, which introduced a package of measures designed to protect the rights of persons in custody and under investigation:

These reforms were introduced by the Victorian Parliament following the recommendations of the Consultative Committee on Police Powers of Investigation whose report was published in 1986. The committee stated the object of the reforms was to introduce more flexibility into police investigations and to incorporate commensurate checks and balances to ensure the rights of individuals were recognised and safeguarded.[119] The committee went on to state this:[120]

In any investigatory process the classes of people who are most vulnerable, are those with language problems, those who may be intellectually impaired, those who are young, those who are of low intelligence, those who while not guilty of the offence of which they are suspected may nonetheless have matters to hide ... In addition, there is a need in any democratic society to guard against the over zealous exercise of power whether by police, other officials or government at large.

The reference by the Committee to persons with 'language problems' being 'most vulnerable' will be noted.

76 Section 139 was enacted with the Evidence Act in 2008. Sub-sections (1) and (2) apply to questioning of a person under arrest or official questioning. The obligation imposed in s 139(1)(c) and (2)(c) is to caution the person, otherwise statements made or acts done by the suspect during the questioning are taken to have been improperly obtained under s 138(1)(a). Section 139(3) requires that:

[the} caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency, but need not be given in writing unless the person cannot hear adequately.

77 Chronologically, s 464D(1) of the Crimes Act was enacted before s 139(1)-(3) of the Evidence Act. But they deal with similar subject matter. The treatment is not identical. Section 464D(1) creates a right to an interpreter, not a principle of evidence, and is directed towards the entire questioning. The criterion is that the person 'does not have knowledge of the English language sufficient to understand the questioning'. The obligation imposed is to arrange an interpreter and defer the questioning until one is present, and both are express. Section 139(3), with s 139(1)-(2), deems statements made and acts done during certain questioning to have been improperly obtained under s 138(1)(a), and is directed at the caution. The criterion in s 139(3) is the 'language in which the person is able to communicate with reasonable fluency'. The obligation imposed expressly is to translate the caution into such a language. As the questioning will be improper unless that is done, there is an implicit obligation to defer the questioning until it is. Although different to that extent, both provisions can operate together. There is nothing in s 139 specifically or the Evidence Act generally to suggest that this later enactment was intended to qualify or affect the operation of the earlier enactment in this respect. Therefore the provisions impose substantively independent obligations.

78 As the heading above s 464D(1) ('Right to an interpreter') makes clear, the purpose of the provision is to ensure that persons in custody for questioning obtain access to an interpreter, and are not further questioned until one is present, where their English is insufficient to enable them to understand the questioning. The person's right to an interpreter is ensured by imposing upon the investigating official a positive duty to arrange for an interpreter to be present, and to delay the questioning until this happens, in that situation. Section 464D(1) thus expresses and makes effective the fundamental human rights values of equality and non-discrimination in a particular aspect of the operation of the criminal justice system - questioning by police of people with no or poor English. Those fundamental values are also protected by provisions of the ICCPR, which I have discussed, and of the Charter, which I will discuss.

79 Section 464D(1) states a test of functional proficiency in terms of whether the person in custody 'does not have a knowledge of the English language that is sufficient to enable the person to understand the questioning'. This relates to the suspect individually, not to persons in the position of the suspect objectively or hypothetically. The suspect must possess sufficient knowledge to be able to understand 'the' questioning, that is, questioning that is to take place by way of police interrogation, usually in the unfamiliar environment of a police station. The relationship of power between the person being questioned and the interrogating police officer is very unequal. The position of the suspect is one of vulnerability. The suspect will usually have a high personal stake in the outcome of the interview. This is a highly stressful situation for interviewees to be in, which will likely exacerbate their language difficulties, particularly for the elderly. While the test is expressed in terms of the capacity of the person to understand the questioning, whether the person has that proficiency for the communication of their answers is clearly relevant to that assessment.

80 The positive duty is enlivened by the objective fact that the person in custody does not have sufficient knowledge of the English language to understand the intended questioning. While the investigating official must make a personal decision about that matter, the decision is not conclusive and may be challenged. Whether the suspect did not in fact have this knowledge is justiciable in the court when the admissibility of the evidence is being considered, as in the present case. Where the investigating official does not obtain an interpreter and delay the questioning, the issue whether the duty in s 464D(1) was thereby breached will depend upon this examination.

81 On that examination in the present case, the duty was breached (see above). This too is a circumstance of aggravation when the gravity of the impropriety or contravention is considered under s 138(3)(d).

82 Much of the this analysis is relevant to s 139(3) of the Evidence Act: its operation is enlivened by the objective fact that the person is under arrest or official questioning and is not able to communicate with reasonable fluency; it applies to suspects or persons questioned individually, not to persons in their position objectively or hypothetically; the person must be able to communicate with reasonable fluency in the given situation, that is, questioning that is to take place by way of police or official interrogation, often in the unfamiliar environment of a police station where power relationships are unequal and the high stressful environment will likely exacerbate language difficulties, particularly for elderly immigrants.

83 On the evidence, I find that the accused was not able to communicate with reasonable fluency in the English language. The caution was not given in a language in which the accused was reasonably so fluent. Therefore the obligation in s 139(3) was breached. The accused was a person under arrest for an offence at the time. His situation was covered by s 139(1). Under that provision, evidence of his statement (which contains the admissions) is therefore taken to have been obtained improperly under s 138(1)(a).

84 Section 464D(1) of the Crimes Act and s 139(3) of the Evidence Act give effect to the fundamental principle of equality before the law, which is a human right in s 8(3) of the Charter, and also contribute to ensuring the human right of persons charged with a criminal offence to a fair trial, which are human rights under ss 24(1) and 24(2). Police are obliged by s 38(1) of the Charter to act consistently with those rights. To that issue I now turn.

85 Here is s 8(3) of the Charter:

Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.

The equality right in s 8(3) protects the inherent dignity of all persons whatever language they speak and whatever their race or national origin. A full discussion of the various elements of the right is to be found in Re Lifestyle Communities Ltd (No 3)[121] and Matsoukatidou v Yarra Ranges Council.[122]

86 As public authorities under the Charter,[123] police officers are obliged by s 38(1) to 'act in a way that is compatible with' this right, and to make decisions that give it 'proper consideration'. Under s 38(1), it is 'unlawful' to do otherwise. When police officers are interrogating persons for whom English is only a partial language, as in the present case, the critical element of s 8(3) is the third - the right to equal and effective protection against discrimination. As was held in Matsoukatidou, this right is 'based on the concept of substantive equality in law and in fact' and requires that, 'in the operation and administration of the law, people have equal and effective protection against discrimination'.[124] A police interrogation is an instance of the operation and administration of the law. Police must therefore conduct interrogations 'in a way' that gives people equal and effective protection against discrimination.

87 Giving equal and effective protection against discrimination may mean accommodating difference in the conduct of an interrogation, such as the paucity of a suspect's English. Ensuring that an interpreter is present during a police interrogation of someone with poor English is an accommodation of difference without which the interrogation may be discriminatory and therefore in contravention of s 8(3) and unlawful under 38(1). An example of accommodating difference relating to another aspect of the operation and administration of the law was discussed in Matsoukatidou:

This element of the right may require that, in the conduct of hearings and procedures followed by courts and tribunals, positive adjustments and accommodations are made so that some parties are treated differently to other parties in order to ensure that they have equal and effective protection of the law.[125]

This logic applies equally to police interrogations of people with poor English.

88 As more fully discussed in Matsoukatidou,[126] in s 8(3) the concept of 'discrimination' is not unlimited (as it is in art 26 of the ICCPR: see above) but engages the definition of that word in s 3(1). According to that definition, discrimination 'in relation to a person means discrimination (within the meaning of the Equal Opportunity Act 2010 (Vic)) on the basis of an attribute set out in section 6 of that Act; ...' The effect of these provisions was stated in Matsoukatidou:

The definition in [s 3(1)] incorporates by reference into the Charter the specified (and not other) provisions of the Equal Opportunity Act. So incorporated, they operate according to their own terms to give protection against discrimination on the basis of an attribute within the free-standing legislative framework of the Charter (including under s 8(3)) whether or not the discrimination is unlawful within the separate legislative framework of the Equal Opportunity Act.[127]

Thus it is the operation of the incorporated provisions in the context of the Charter that is important, not whether the relevant conduct is unlawful under the Equal Opportunity Act.

89 Turning to those incorporated provisions, under s 7(1)(a) of the Equal Opportunity Act, discrimination means 'direct or indirect discrimination on the basis of an attribute'. Section 7(2)(b) includes within that concept discrimination on the basis 'of a characteristic that a person with that attribute generally has'. Section 9(1) defines 'indirect discrimination' to mean the imposition of 'a requirement, condition or practice - (a) that has, or is likely to have, the effect of disadvantaging persons with an attribute; and (b) that is not reasonable'. Section 6(m) specifies the attribute 'race'. The definition of that word in s 3(1) is:

(e) if 2 or more distinct races are collectively referred to as a race -

90 Applied to the present case, that the accused is proficient in Italian and not proficient in English is a natural attribute or characteristic of his race or national origin, which is Italian. In conducting the interrogation in English and without an interpreter, the police disadvantaged him on the basis of that attribute (when there was no reasonable justification for doing so). This represented indirect discrimination under s 7(1)(a) of the Equal Opportunity Act (as it did under art 26 of the ICCPR) and was contrary to the obligation of the interviewing officer to ensure the right of the accused to equal and effective protection against discrimination (s 8(3) of the Charter). The police officer conducting the interview thereby acted in a way that was unlawful under s 38(1).

91 In Kaba, I examined the consequence of a violation of the Charter for the exercise of the discretion in s 138(1) of the Evidence Act to exclude improperly or unlawfully obtained evidence, holding that 'any violation of a Charter right should be regarded as serious[128] as the violation itself represents damage to the administration of justice[129] and the rule of law'.[130] I adopt that approach here.

Should evidence of the admissions be excluded under s 138(1)?

92 I can now determine whether the desirability of admitting the evidence outweighs the undesirability of doing so. As the evidence was improperly and unlawfully obtained, the onus of so satisfying me rests upon the prosecution. The matters specified in s 138(3) must be taken into account. Under s 138(1), the evidence 'is not to be admitted' unless I am so satisfied.

93 In relation to para 138(3)(a), the probative value of the evidence relates to the motive of the accused to commit the crimes charged (see above). The admissions are not confessional. Given the circumstances in which it was obtained, especially that the interview was not substantively voluntary, the probative value of the evidence is undermined by the unreliability of the evidence, which I have extensively discussed.

94 In relation to para 138(3)(b), the evidence is of some importance in the proceeding as motive is a relevant consideration for the jury to take into account. But it is not of fundamental importance as there is other evidence from which the same motive may be inferred.

95 In relation to para 138(3)(c), the alleged offences are serious crimes of violence (see above). It is strongly in the public interest that the perpetrator of such crimes be brought to justice. But the prosecution of the accused will proceed even if the evidence is excluded.

96 In relation to paras 138(3)(d), (e) and (f), the gravity of the impropriety and contraventions is high. The evidence does not support a finding that the police conduct was intentional or reckless. The interviewing officer made an error of judgment in failing to appreciate that the accused did not have sufficient English to understand the caution and questioning, and to communicate his answers (s 464D(1) of the Crimes Act), and was not able to communicate in English with reasonable fluency (s 139(3) of the Evidence Act). But the consequences of the error of judgment were very serious. The interview that was conducted was not voluntary in actual substance whatever may have been the outward appearance. In conducting the interview without an interpreter being present, the officer violated the human rights of the accused and his own associated legal obligations:

• the right of the accused to equal and effective protection against discrimination in art 26 of the ICCPR;

• the obligation of the officer to arrange for an interpreter and defer the questioning until one was available in s 464D(1) of the Crimes Act;

• the right of the accused to equal and effective protection against discrimination in s 8(3) of the Charter and the obligation of the officer to act compatibly with that right in s 38(1); and

• the obligation of the officer to give or translate the caution into a language in which the accused could communicate with reasonable fluency in s 139(3) of the Evidence Act.

The violation of these rights and obligations, individually and collectively, weighs heavily on the side of making undesirable the admission of the evidence because they damage the administration of justice and the rule of law and the court may thereby denounce what occurred.

97 Sections 138(3)(g) and (h) are not relevant.

98 Taking those considerations into account, it has not been established that the desirability outweighs the undesirability of admitting the evidence and the evidence must therefore not be admitted.

99 The defence has established that the admissions were obtained from the accused, an elderly Italian immigrant, when interviewing him without the assistance of an interpreter. He did not have sufficient knowledge of the English language to be able to understand the questioning or communicate his answers. He did not appreciate his human rights, especially his right to remain silent, and that the admissions could be used against him in court. The interview was not actually voluntary, whatever the outward appearances.

100 Under s 90 of the Evidence Act, the defence has established that it would be unfair to admit evidence of the admissions in the special hearing of the charges because the interview was not substantively voluntary, the admissions are unreliable and it would place the accused in a position of unfair forensic disadvantage.

101 Under s 138(1), the defence has established that evidence of the admissions was improperly and unlawfully obtained. The prosecution has not established that the desirability outweighs the undesirability of admitting the evidence, especially having regard to the conduct of the police, which breached the right of the accused to an interpreter, breached the obligation of police to obtain an interpreter and defer the questioning until one was present, and breached the obligation of police under the Charter to ensure that the accused received equal and effective protection against discrimination.

102 Evidence of the admissions will therefore be excluded.

[1] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).

[2] See Haddara v The Queen [2014] VSCA 100; (2014) 43 VR 53, 57-8 [12] (Redlich and Weinberg JJA) ('Haddara').

[3] [2017] VSC 343 (16 June 2017) [37] ff.

[4] Em v The Queen [2007] HCA 46; (2007) 232 CLR 67, 91 [63] (Gleeson CJ and Heydon J) ('Em').

[5] (1998) 192 CLR 159, 197 [78] ('Swaffield').

[6] According to Mason CJ and McHugh J in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 299, the 'right of an accused to receive a fair trial according to law is a fundamental element of our criminal justice system' (see also 325 (Brennan J), 353, 361 (Toohey J), 362 (Gaudron J)); see also ss 24-5 of the Charter of Human Rights and Responsibilities Act and art 14 of the ICCPR.

[7] [1964] AC 1254, 1347.

(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.

(3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account -

(a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject; and

(b) if the admission was made in response to questioning -

(i) the nature of the questions and the manner in which they were put; and

(ii) the nature of any threat, promise or other inducement made to the person questioned.

[9] [2007] HCA 46; (2007) 232 CLR 67, 106 [119].

[10] [2013] NSWCCA 312 (2 December 2013) (Leeming JA, Latham and Johnson JJ).

[11] [2013] NSWCCA 316 (13 December 2013) (Latham, Schmidt and Beech-Jones JJ).

[12] [2013] NSWCCA 312 (2 December 2013) [8].

[13] (2013) 233 A Crim R 40, 65-6 [114]-[118].

[14] [2015] VSC 64 (27 February 2015) [134]-[140].

[15] [2015] VSCA 40 (6 March 2015) [6].

[16] Re A (a Child) [2000] NSWSC 627; (2000) 115 A Crim R 1, 9 [28] (Bryson J); DPP (NSW) v Leonard [2001] NSWSC 797; (2001) 53 NSWLR 227, 247 [93] (James J).

[17] [2014] VSCA 100; (2014) 43 VR 53, 91 [128] (italics in original).

[18] See generally IMM v The Queen (2016) 257 CLR 300, 312 [38] (French CJ, Kiefel, Bell and Keane JJ).

[19] Stephen Odgers, Uniform Evidence Law in Victoria (Lawbook Co, 2nd ed, 2013) 400 [1.3.4740].

[20] [1999] NSWCCA 116 (23 June 1999) [40]-[44].

[21] [2007] HCA 46; (2007) 232 CLR 67, 104-5 [112].

[22] See Evidence Act s 85(1).

[23] [2007] HCA 46; (2007) 232 CLR 67, 93 [73].

[24] (1998) 192 CLR 159, 197 [78].

[25] Em [2007] HCA 46; (2007) 232 CLR 67, 125-6 [191], citing Swaffield (1998) 192 CLR 159, 189 [54] (Toohey, Gaudron and Gummow JJ).

[26] [2014] VSCA 100; (2014) 43 VR 53, 56 [5].

[27] [2015] VSC 64 (27 February 2015) [26].

[28] Swaffield (1998) 192 CLR 159, 197 [77] (Toohey, Gaudron and Gummow JJ): 'As the authorities stand, the likelihood of an unreliable confession does not mandate the exercise of the unfairness discretion to exclude that evidence.'

[29] Em [2007] HCA 46; (2007) 232 CLR 67, 93 [73] (Gleeson CJ and Heydon J); Swaffıeld (1998) 192 CLR 159, 197 [78] (Toohey, Gaudron and Gummow JJ).

[30] [2014] VSCA 100; (2014) 43 VR 53, 58-9 [14(ii)].

[31] [1950] HCA 25; (1950) 82 CLR 133 ('Lee').

[33] [1946] NSWStRp 54; (1947) 47 SR (NSW) 284, 311-14 ('Jeffries').

[35] (1998) 192 CLR 159, 189 [53].

[36] [2014] VSCA 100; (2014) 43 VR 53, 58 [14(ii)].

[37] Lee [1950] HCA 25; (1950) 82 CLR 133.

[38] Cleland v R (1982) 151 CLR 1, 18, 33.

[40] [1962] VicRp 75; [1962] VR 545 ('Amad').

[42] See Swaffield (1998) 192 CLR 159, 198 [78] (Toohey, Gaudron and Gummow JJ) (Amad) (their Honours also referred with approval to the judgment of Williams J in McDermott v The King (1948) 76 CLR 501, 517 where his Honour held that it would be unfair to admit evidence of admissions made by an accused to police that he had made admissions to third parties without calling those parties); Em [2007] HCA 46; (2007) 232 CLR 67, 104 [111] (Gummow and Hayne JJ) (Amad and Foster).

[43] (1993) 67 ALJR 550, 556 quoting Lee [1950] HCA 25; (1950) 82 CLR 133, 149 (Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ).

[45] [1991] HCA 6; (1991) 171 CLR 468, 478.

[47] [1962] VicRp 75; (1962) VR 545, 547 (Smith J).

[49] Western Australia v Gibson [2014] WASC 240; (2014) 243 A Crim R 68, 101 [161] (Hall J).

[50] Lee [1950] HCA 25; (1950) 82 CLR 133, 149 (Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ).

[51] Collins v The Queen [1980] FCA 72; (1980) 31 ALR 257, 307 (Brennan J).

[52] Foster ((1993) 67 ALJR 550, 554-5 (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ).

[53] [1946] NSWStRp 54; (1946) 47 SR (NSW) 284, 312.

[54] (1948) 76 CLR 501, 507.

[56] [2014] VSCA 100; (2014) 43 VR 53, 58 [14(ii)].

[57] [1958] TASStRp 3; [1958] Tas SR 3.

[62] (1995) 78 A Crim R 582.

[64] [1993] VicRp 59; [1993] 2 VR 80.

[68] [2001] QCA 196 (25 May 2001).

[70] [1993] VicRp 59; [1993] 2 VR 80, 87.

[72] [2002] QSC 471 (19 July 2002) ('Trinh').

[76] [1958] TASStRp 3; [1958] Tas SR 3.

[77] [1905] ArgusLawRp 116; (1976) 11 ALR 412 ('Anunga').

[79] [2002] QSC 471 (19 July 2002) [11].

[80] [1905] ArgusLawRp 116; (1976) 11 ALR 412.

[83] [2014] WASC 240; (2014) 243 A Crim R 68 (Supreme Court of Western Australia).

[84] Section 137(3)(d) of the Criminal Investigation Act 2006 (WA) provided that an arrested person is entitled to be assisted by an interpreter if 'unable to understand or communicate in spoken English sufficiently', and s 138(2)(d) provided that, where an arrested suspect was unable to understand or communicate in spoken English sufficiently, the suspect is not to be interviewed until the services of an interpreter are available.

[85] [2014] WASC 240; (2014) 243 A Crim R 68, 84 [77].

[87] [2012] QDC 354 (11 September 2012). The case involved the application of s 433(1) of the Police Powers and Responsibilities Act 2000 (Qld) which required police to bring in an interpreter where the suspect could not 'speak with reasonably fluency in English'.

[90] [2001] QCA 196 (25 May 2001).

[91] [2012] QDC 354 (11 September 2012) 20.

[92] [2004] VSC 408 (24 August 2004).

[97] R v Mokbel [2012] VSC 86; (2012) 35 VR 156, 184 [309] (Whelan J), applying Parker v Comptroller-General of Customs (2009) 252 ALR 619, 626 [28] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ); see also DPP v Marijancevic [2011] VSCA 355; (2011) 33 VR 440, 445 [17] (Warren CJ, Buchanan and Redlich JJA); R v Kerr and Lewis (Ruling No 1) [2015] VSC 64 (27 February 2015) [13] (T Forrest J).

[98] [1978] HCA 22; (1978) 141 CLR 54 ('Bunning').

[99] Haddara [2014] VSCA 100; (2014) 43 VR 53, 56 [4].

[100] R v Ireland (1970) 126 CLR 321, 334-5; Bunning (1978) 141 CLR 54, 74-5.

[101] [1978] HCA 22; (1978) 141 CLR 54.

[102] Haddara [2014] VSCA 100; (2014) 43 VR 53, 58-9 [14(iii)].

[103] Bunning [1978] HCA 22; (1978) 141 CLR 54, 74 (Stephen and Aickin JJ).

[104] [1995] HCA 66; (1995) 184 CLR 19, 31 ('Ridgeway').

[105] [1995] HCA 66; (1995) 184 CLR 19.

[107] [2005] NSWCCA 426; (2005) 64 NSWLR 612, 618-19 [23].

[108] [2014] VSC 52; (2014) 44 VR 526, 617 [334] ('Kaba').

[111] See generally Stephen Odgers, Uniform Evidence Law in Victoria (Lawbook Co, 2nd ed, 2013) 1ff.

[112] Law Reform Commission, Evidence, Interim Report No 26, Vol 1, Report No 26 (1985) 532 [960].

[114] See generally Matsoukatidou v Yarra Ranges Council (2017) 51 VR 624, 650 [82] ff (Bell J) ('Matsoukatidou').

[115] Other rights in the ICCPR that may have application in relation to the exercise of police powers of arrest and interrogation include the right to liberty and security of the person in art 9(1), the right to freedom of movement in art 12(1) and the right to freedom from arbitrary interference with privacy in art 17(1): see Kaba [2014] VSC 52; (2014) 44 VR 526, 549 [74], 617 [333]-[334], 647 [462]-[465] and on cognate human rights see the international jurisprudence discussed at 621-44 [351]-[444].

[116] Law Reform Commission, Multiculturalism and the Law, Report No 57 (1992) 55-6 [3.48].

[117] [2014] VSC 52; (2014) 44 VR 526, 621-44 [351]-[444] (Bell J).

[118] [2006] VSC 256; (2006) 13 VR 319, 327 [42] (see also 326-7 [40]-[41]) (Bell J).

1. [119] Consultative Committee on Police Powers of Investigation, 'Custody and Investigation' (Report on Section 460 of the Crimes Act 1958, April 1986) para 6.1.

[121] (2009) 31 VAR 286, 310-46 [105]-[303] (Bell J).

[122] (2017) 51 VR 624, 638-44 [47]-[61], 657-9 [102]-[108] (Bell J).

[124] (2017) 51 VR 624, 657-8 [106] (Bell J).

[128] R v Shaheed [2002] 2 NZLR 377, 418-19 [143] (Richardson, Blanchard and Tipping JJ); R v Grant [2009] 2 SCR 353, 393 [68]-[69] (McLachlin CJ and Charron J for the court).

[129] Hamed v The Queen [2011] NZSC 101; [2012] 2 NZLR 305, 362 [187] (Blanchard J); R v Mellenthin [1992] 3 SCR 615, 629 (Cory J for the court).

[130] Kaba [2014] VSC 52; (2014) 44 VR 526, 650 [482].