R v Morton [2008] NSWCCA 196 | Case summary

21 AUGUST 2008 REGINA v RICHARD HARRY MORTON Judgment 1 McCLELLAN CJ at CL: I agree with Barr J. 2 BARR J: This is an appeal by the Crown under s5F(3A) Criminal Appeal Act against a decision made in the District Court rejecting the tender of a statement signed by the complainant and principal Crown witness in the trial of the respondent, Richard Harry Morton. 3 The respondent is due to be tried in the District Court on a charge that on or about 22 February 2007 at Leichhardt, while in the company of one Timothy Lee Davis, he robbed Matthieu Marie Bruno Scherer of a mobile telephone and a wristwatch the property of Mr Scherer, and alternatively that at the same time and place he robbed Mr Scherer of those goods. 4 Mr Scherer was a French national, resident temporarily in Sydney and working under the terms of a visa. A little after midnight on 22 February 2007 Mr Scherer was on his way home from work. He seated himself at a bus stop in Parramatta Road, Leichhardt. Two men went up to him, the respondent and Davis. Davis was the shorter of the two men. He was wearing a light coloured singlet. The respondent was wearing a black t-shirt. He was bald and bearded. He was wearing jeans which had a rip in one leg. Mr Scherer had his mobile telephone in his hand. Davis demanded that he hand it over. He took hold of him and pulled him off the seat and onto the ground. As he lay there Davis raised his fist in a threatening manner. Mr Scherer handed over his mobile phone. Davis demanded his money and bag. The respondent leaned over and tried to remove Mr Scherer's watch from his wrist. Mr Scherer was so afraid that he undid the watch and handed it to him. Mr Scherer slid under the bus stop seat to try to get away but the two men ran around the bus stop and cut him off. Mr Scherer made some excuse and put the attackers off their guard. He used the moment to run away and seek help from the proprietor of a shop which was open nearby. He said, "Please help me. They took my wallet, my phone". He pointed to his two attackers, who could be seen from the shop. The proprietor saw them and ran towards them. They were getting into a taxi. He told the taxi driver not to drive off. He pulled Davis out of the back seat and went to take hold of the respondent. He denied responsibility. He said that the other man had Mr Scherer's "stuff". So the respondent was left in the taxi and the driver took him away. The shopkeeper dealt with Davis and the police were called. While they were there the respondent returned on foot. He pretended to be a friend of Mr Scherer and handed him back his mobile telephone and watch and some coins. He said, "Hey mate, I got your phone and watch back. I found them in the taxi". He also said something to the effect that Davis had thrown the goods into the taxi. He began to act aggressively and announced that he was under the influence of methadone. One of the officers, Constable Jarvis, drew Mr Scherer aside and asked whether he knew the respondent. Mr Scherer said that the respondent was the man who had stolen his watch. He identified him by the tear on his jeans. The respondent and Davis were arrested. 5 Mr Scherer was taken to the police station and was asked to make a statement. His first language was French. He spoke some English but felt that he needed help in putting what he wanted to say into that language. Accordingly he telephoned a friend of his, Mr Amaury le Pivain. He attended and the two of them spoke at the police station. Mr le Pivain spoke French and English well. Constable Steinmetz took the statement. The three persons spoke together and in that way the statement was prepared in English. Mr Scherer signed the statement. This critical part of it was the only evidence that the respondent had stolen the wristwatch, viz - After I gave this man my phone, he continued to stand over me, He then said to me, "Give me your money and your bad". I then saw the other man, the one with the bald head and beard, come over to where I was. The bald headed man stood over me and he bent down and lifted up my left wrist. He didn't say anything to me, but he was trying to undo my watch to take it. He was having trouble undoing the latch on my watch and I was scared I would get hurt if I didn't give it to him, so I undid it for him and he took it off my wrist. I don't know where he put it. 6 The trial came on for hearing while Mr Scherer was still in Australia, but Davis had not yet then been committed for trial and the Crown asked for the respondent's trial to be vacated so that there could be a joint trial of the two robbers. The trial was adjourned and Mr Scherer returned to France. 7 In due course Davis was committed for trial. The trial of him and the respondent jointly was fixed to commence on 31 March 2008. As the time for trial approached, the Crown attempted to secure the attendance of Mr Scherer. I shall review later in this judgment what was done. When the trial was called on Mr Scherer was absent and no arrangement had been made for him to give evidence by videolink. Accordingly the Crown, which had served notices under s67 Evidence Act, proposed to proceed to trial partly by adducing evidence of what Mr Scherer had said not only to the police officer in the statement as assisted by Mr le Pivain but to others at relevant times. Objection was taken. Evidence was tendered on that question and submissions were made. The trial judge, Phegan DCJ, gave judgment rejecting the tender of evidence. The Crown now appeals. 8 In the court below the Crown relied on a number of provisions of the Evidence Act. The appeal was conducted on a rather narrower basis, and the only relevant sections of the Evidence Act are s65 and cognate parts of the Act. Section 65 is as follows - (1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation was: (a) made under a duty to make that representation or to make representations of that kind, or (b) made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or (c) made in circumstances that make it highly probable that the representation is reliable, or (d) against the interests of the person who made it at the time it was made. (3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the defendant in the proceeding to which this section is being applied: (a) cross-examined the person who made the representation about it, or (b) had a reasonable opportunity to cross-examine the person who made the representation about it. (4) If there is more than one defendant in the criminal proceeding, evidence of a previous representation that: (a) is given in an Australian or overseas proceeding, and (b) is admitted into evidence in the criminal proceeding because of subsection (3), cannot be used against a defendant who did not cross-examine, and did not have a reasonable opportunity to cross-examine, the person about the representation. (5) For the purposes of subsections (3) and (4), a defendant is taken to have had a reasonable opportunity to cross-examine a person if the defendant was not present at a time when the cross-examination of a person might have been conducted but: (a) could reasonably have been present at that time, and (b) if present could have cross-examined the person. (6) Evidence of the making of a representation to which subsection (3) applies may be adduced by producing a transcript, or a recording, of the representation that is authenticated by: (a) the person to whom, or the court or other body to which, the representation was made, or (b) if applicable, the registrar or other proper officer of the court or other body to which the representation was made, or (c) the person or body responsible for producing the transcript or recording. (7) Without limiting subsection (2) (d), a representation is taken for the purposes of that subsection to be against the interests of the person who made it if it tends: (a) to damage the person's reputation, or (b) to show that the person has committed an offence for which the person has not been convicted, or (c) to show that the person is liable in an action for damages. (8) The hearsay rule does not apply to: (a) evidence of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made, or (b) a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation. (9) If evidence of a previous representation about a matter has been adduced by a defendant and has been admitted, the hearsay rule does not apply to evidence of another representation about the matter that: (a) is adduced by another party, and (b) is given by a person who saw, heard or otherwise perceived the other representation being made.

I understand that you cannot come to Australia at present because of your new job. Would you please think about the following and let me have your answers immediately as I must tell the court tomorrow morning: - 1. Are you able to come to Australia to give evidence at a time in the near future? When will that be? 2. If you cannot come to Australia would you be able to give evidence in France at a video link facility if we arrange this for you. It would mean that you would have to be at the facility on the day that it is arranged and because the time difference between France and Australia you would be giving evidence after midnight. 15 Mr Scherer responded with an email containing this paragraph - I'm sorry to tell you that because of my professional situation, I'll not be able to be present at the trial. Moreover, I will be travelling all over France for my job during this period. Thus it's impossible for me to escape from my professional needs. 16 At the commencement of proceedings on 1 April 2008 the representative of the Crown informed his Honour about the emails sent and received. The evidence continued. Senior Constable Ross, who had begun to be cross-examined on 31 March, continued to be cross-examined. Mr le Pivain and a police officer were examined and cross-examined. At the conclusion of proceedings his Honour again drew attention to the unsatisfactory state of affairs. The application was adjourned to 2 April 2008. Overnight the Crown made a further attempt to obtain a satisfactory response from Mr Scherer. It sent by email a letter in French, the English translation of which is as follows - Thank you for your email yesterday. I understand that you cannot come to Australia for the trial because of work commitments. However, would those commitments permit you to attend a facility in Nantes (or, if not available, in Paris) to give your evidence by videolink. It would require you to be there in the early hours and the following dates and times are proposed: - Thursday 3 April 2008 at 01:00 hrs (1am) or 05:00hrs (5am). Monday 7 April 2008 at 02:00hrs (2am) or 06:00hrs (6am). Would you please let us know urgently by return email if you are able to attend and the dates and times you are available. We will pay your travel expenses and reasonable accommodation costs if you are required to travel from your home city overnight. 17 At the commencement of proceedings on 2 April his Honour was informed that the email had been sent but that no response had been received. The representatives made their submissions. His Honour took time to consider the matter and gave judgment on 3 April 2008. 18 By s5F(3A) Criminal Appeal Act the Crown may bring an appeal of the present kind if the ruling appealed from eliminates or substantially weakens the Crown case. The only evidence identifying the respondent as the man who took Mr Scherer's wristwatch is what I have described as the critical part of his statement, extracted earlier in this judgment. In my opinion his Honour's ruling that that evidence was inadmissible substantially weakens the Crown case. It seems to me, therefore, that the Crown has standing to bring this appeal. 19 The principal attack in this Court was on his Honour's statement of the test for admissibility of evidence under s65(2)(b) and (c). It is necessary first to say something more about the evidence and the submissions below. In giving judgment his Honour considered the case put forward by the defence which was said to throw doubt on the quality of Mr Scherer's evidence. The police officer who interviewed Mr Scherer was Constable Steinmetz. She spoke English. The only other participants in the conversation as a result of which Mr Scherer made his statement were Mr Scherer himself and Mr le Pivain. They both spoke fluent French. Mr le Pivain was fluent in English, but although Mr Scherer could speak some English he was not fluent in the language. 20 Mr le Pivain gave evidence. He said that Mr Scherer spoke to him in French when he telephoned him and asked him to come to the police station to help. He said that the constable was asking questions in English. He was translating them into French for Mr Scherer to answer, to ensure that he understood what he was being asked. He said that he was translating all the time "in both way". I take that to mean that Mr le Pivain was translating Constable Steinmetz's questions into French and Mr Scherer's answers into English. As he translated Mr Scherer's answers Constable Steinmetz typed them into her computer and displayed the answers on the screen. Mr le Pivain and Mr Scherer read them. Mr Scherer was asking Mr le Pivain what a certain sentence or a certain word meant and Mr le Pivain was explaining in French. Mr le Pivain said - So I explaining and translate bit by bit all the time, so then he can confirm it was correct. 21 He said that the whole statement was taken by that method. 22 Constable Steinmetz gave evidence. She described how the questions were asked and answered and the statement made. Her description did not differ significantly from Mr le Pivain's. 23 The defence representative drew attention to the code of practice for crime current in the New South Wales Police Service at the time of these events. Certain selected pages of the printed practice were tendered and became exhibit 1. The exhibit contains a complete table of contents but only selected pages thereafter. According to the table of contents a section entitled "Questioning suspects" commences at page 48 and ends with a subsection commencing at page 68. Of those pages, only pages 50 to 53 inclusive were included in the tender. That is unfortunate, because according to the table of contents, the portion on page 48 immediately following the heading "Questioning suspects" is entitled "General". It is followed on page 49 by a part called "Cautioning". It seems possible that these parts may say more than the heading about identifying the persons to whom the code of practice is intended to apply. At first impression, none of the material seems to have any application, since Mr Scherer was not a suspect. Part of what follows may throw some doubt on that conclusion, however. Under the heading "Interpreters" on page 50 appears the following - It is policy to provide people who have inadequate language skills or physical disabilities which impede communication with access to accredited interpreters. Use an interpreter if the person (suspect or witness ) you are interviewing: s is unable to communicate in English s has a limited understanding of English s is more comfortable communicating in their own language s is deaf, hearing impaired or speaking impaired s is a child and the appropriate adult or support person requires one wants one. NB: Just because someone can speak English to do everyday tasks does not mean they can cope with the added stress of a police interview. If in doubt, get an interpreter. For someone in custody, defer any investigation until an interpreter arrives. If it is not reasonable practical to obtain an interpreter, or the urgency of the investigation (having regard to the safety of others) makes it unreasonable t defer if the custody manager will arrange for a telephone interpreter (see Telephone Interpreters below) and defer any investigation until it is arranged. If this, however, is not reasonably practical, or the urgency of the investigation (having regard to the safety of others) makes it unreasonable to defer if the investigation does not have to be deferred. Use properly accredited professionals. Do not use someone known to the suspect or a member of the suspect's family to interpret during an interview. If you require an on site (fact to face) interpreter contact the Community Relations Commission (CRC) on phone: 1300 651 500 (24 hours a day). Advise if the case is of a sensitive nature (eg. sexual assault or incest), to ensure an interpreter of appropriate sex, culture or religious background is provided. If someone is hearing or speech impaired do not interview them without an interpreter unless they agree in writing. Conduct the interview by showing them written or typed questions and allowing then to write or type their answers. Many countries have more than one official language, eg: in Czechoslovakia, both Czech and Slovak are spoken. Accordingly, when requesting an interpreter, ask for one who can speak the dialect of the person needing one. (emphasis is added) 24 Constable Steinmetz said that she had taken statements from victims of crime before. She was not aware of any police guidelines about taking statements from witnesses or victims whose first language was not English. 25 As his Honour observed, the reasons put forward on behalf of the defence why the statement did not fall within s65(2)(b) or (c) were "largely concerned with the mechanism chosen by the police officer, Constable Steinmetz, to take the statement". His Honour said this about Constable Steinmetz - …she had no knowledge of the police Code of Practice in which there are specific provisions addressing the use of interpreters in circumstances where a person being interviewed has a limited understanding of English. Even at the time she gave evidence in these proceedings, Constable Steinmetz had still not heard of those provisions. It goes without saying that she did not make any attempt to comply with the procedures laid down in the Code and employ the assistance of a properly qualified interpreter. 26 In view of the scope of the Code as described in the heading to which I have referred, there must be considerable doubt whether there was any relevant Code governing the questioning of witnesses who were not suspects. 27 His Honour went on to consider the quality of the services provided by Mr le Pivain, and referred to Crown submissions to the effect that he had understood English, that he had understood his role and that he had materially assisted in the process in obtaining the statement. 28 His Honour continued - However, even if the value of his role is acknowledged and there is no doubt that without his assistance it would have been extremely difficult, if not impossible to take statement, this is not simply a question of whether it is more likely than not that the statement was reliable. The representation has to have been made in circumstances where fabrication was unlikely or that make it highly probable that the representation was reliable. 29 Unfortunately, his Honour never came to any conclusion about the quality of Mr le Pivain's translation or how, if his Honour did, he took into account what he took to be the failure of Constable Steinmetz to follow an applicable code of practice. 30 His Honour went on to consider whether the "circumstances" in which a statement was made might for the purposes of subs (2)(b) and (c) include related circumstances such as Mr Scherer's identification to Constable Jarvis of the respondent as the one who taken his watch. His Honour conducted an exhaustive review of cases in which the section has been considered, namely R v Mankotia [1998] NSWSC 295, R v Polkinghorne [1999] 108 A Crim R 189, Conway v R (2000) 98 FCR 204, Williams v R (2000) 119 A Crim R 490, R v Kazzi (2003) 140 A Crim R 545 and R v Ambrosoli [2002] NSWCCA 386. 31 His Honour concluded - I am satisfied that the wording of s65 imposes a heavy onus on the Crown in this case to satisfy the Court that there was no risk of either fabrication or unreliability and that, procedures were available to members of the Police Service, which could have been resorted to in this case without any serious jeopardy to the conduct of the police investigation. There was no evidence forthcoming from the Crown to suggest otherwise. There was a risk in the procedures adopted by Constable Steinmetz that crucial parts of the evidence of Mr Scherer would be lost in translation and therefore the requirements of the relevant subsections in s65 in those circumstances were not met. The Crown is not entitled to the benefit of subs (2) of s65. 32 The last passage has been extracted verbatim. The reference to available procedures is obviously erroneous and may be a mistranscription. Perhaps his Honour intended to say that the Crown had to prove that the procedures to which he referred were unavailable. 33 There are several deficiencies in his Honour's judgment. First, it was never made clear how his Honour's decision to reject the tender of the evidence was informed by any conclusion his Honour drew about the asserted failure of Constable Steinmetz to follow the supposedly applicable code of practice. There is no obvious connection between the merits of a method not chosen and the statement that actually resulted. His Honour's real concern should have been with the efficacy of the method undertaken, not with a method that was not. 34 Secondly, his Honour expressed no clear view, and perhaps no view at all, about the efficacy of Mr le Pivain's services as a translator. 35 Finally, his Honour misstated the test he had to apply. Section 65 does not oblige the Crown to satisfy a court that there is "no risk of either fabrication or unreliability" in the production of a statement. None of the cases referred to by his Honour puts the test so high. The words of subs (2)(b) and (c) are plain: for para (b) it must be made to appear unlikely that the representation is a fabrication; for para (c) it must be made to appear highly probable that the representation is reliable. The risk of which his Honour spoke that "crucial parts of the evidence of Mr Scherer would be lost in translation" may have existed. Whether, on the other hand, such a risk materialised does not appear from his Honour's findings, and it is far from clear whether any such finding would have been available on the evidence. 36 Moreover, his Honour did not explain how any deficiency in Mr le Pivain's translation could bear on the question of fabrication. Although the link between an inaccurate translation and the reliability of the resulting statement is readily understood, it is not clear how such an inaccuracy could make it appear more likely that any part of the statement had been fabricated. The thrust of the critical passage was the identification of the respondent as the man who stole the watch. Mr Scherer had no apparent interest in falsely identifying the respondent. Moreover, the respondent was by common consent, present at the time of the robbery. It was put for the respondent on appeal that fabrication would include more than a deliberate falsehood, for example a mistaken conclusion or a wrong assumption, created or exacerbated, perhaps, by errors of translation. I do not accept that, if such an argument is ever available, it is available here. The passage as I have said, was about the identification of one of only two people. That was done by a description of head and face. If the evidence of Constable Jarvis was relevant, it was also achieved by an identification of trousers. The appearance of the respondent was distinctly different from that of Davis. 37 Because of the view I have formed about these matters it is unnecessary to deal with questions about the unavailability of Mr Scherer. In any event there will be further evidence bearing on that question, and no doubt further submissions, when the trial is called on in the District Court. Neither is it necessary to deal with other submissions made in this Court by counsel for the respondent about the adequacy of hearsay notices and other matters. 38 There is, however, one submission that I must consider, namely that Mr Scherer's statement was not first hand hearsay, as contemplated by s65, but hearsay on hearsay and as such incapable of being saved. I have summarised above Mr le Pivain's description of the method employed to give Mr Scherer an understanding of Constable Steinmetz's questions and Constable Steinmetz an understanding of Mr Scherer's answers. The process may not have been exactly the same as in a smooth translation in court from one language to another and back again, but it was, I think, of that kind. See Gaio v R (1960) 104 CLR419. Moreover, when the statement was printed and read to him, Mr Scherer signed it. He thereby made the document his own. In my opinion the submission should be rejected. 39 I would set aside his Honour's order rejecting the tender of Mr Scherer's statement. 40 PRICE J: I agree with Barr J.

R v Morton

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