Regina v Amir Ibrahim El Mostafa

CATCHWORDS: Criminal law - Admissibility of evidence - ERISP - Translator used during ERISP - Mental illness

LEGISLATION CITED: ss 85, 90, 138, 139 Evidence Act 1995

Regina v Sophear Em [2003] NSWCCA 374 CASES CITED: Regina v Pham (2001) 123 ACrimR 30 Regina v Taylor [1999] ACTSC 47

PARTIES: Regina Amir Ibrahim El Mostafa

COUNSEL: Mr Calvert for the Crown Mr Simpson for Amir Ibrahim El Mostafa

SOLICITORS: Ms Flemming for the NSW DPP Ms Duffy for Amir Ibrahim El Mostafa

Mr Simpson, on behalf of his client, has made various applications regarding the admissibility of the ERISP conducted between the police and his client on 29 July 2005. Those applications have been made under s 85 of the Evidence Act 1995 as well as s90, s138 and s139. A good deal of evidence was tendered in the form of exhibits in respect of this application and, in addition, evidence from witnesses was called. I propose to briefly review the evidence of the witnesses who were called.

Detective Whitton was called by the Crown and cross-examined by Mr Simpson. In cross-examination she said that the accused was obviously concerned in respect of his arrest but not overly anxious. She was aware that he was not given any medication but she also was not aware of any request by this accused for any medication. She agreed with Mr Simpson that there was an added need to be cautious if there was a mental health issue associated with a suspect but she repeated she did not recall Mr El Mostafa asking for medication.

She indicated that she had no personal awareness of his mental health situation or medication and that the appropriate duty for a police officer to deal with those issues is when an accused person asks for a doctor. If she had thought that there were mental health issues, she would have checked his demeanour during the course of the record of interview.

Just before the commencement of the record of interview Detective Whitton acknowledged that Mr El Mostafa had asked for a legal representative to be present and during the course of the interview he stated that he did not want to answer without a lawyer. She was not sure whether he repeated that request after the record of interview. She was quite sure that he had said that he did not want to answer.

She acknowledged that she knew of another name by which the accused was known and that was Abu Fajr. When she was recalled yesterday she said to Mr Simpson in cross-examination that she had been aware from 4 February 2005 onwards, or she had understood, that the person named Abu Fajr was Mr El Mostafa. She also acknowledged that when the record of interview was conducted on 29 July 2005 she and her colleagues were well aware that his name was Amir El Mostafa. At the same time she acknowledged that there had been some confusion about the identity of the accused brought about during the course of a search of his premises.

Returning to her evidence which had been given on 20 March 2007 before me she said, once again in response to cross-examination, when she put the allegations concerning the offence to Mr El Mostafa and he made clear that he did not wish to answer, she said that she moved on. She said frankly that she hoped that Mr El Mostafa would say things which would assist the investigation and that included acknowledging that his nickname was Abu Fajr. She said that they had other forms of identification but were not sure of his correct identification and she said that she wanted him to admit, for the purposes of the investigation, that his name was Abu Fajr.

Asked whether she thought that she pushed a little too hard she said that she did not think so. Asked about the interpreter she said that she relies upon an interpreter to do their duty, that being the system which she relies upon.

She acknowledged the various questions and answers during the course of the record of interview in which Mr El Mostafa sought the assistance of a lawyer. She said it was clear to her that he wanted a lawyer.

In respect of questions during the course of the record of interview touching upon his request for participation in a line-up, she acknowledged that Mr El Mostafa was getting anxious around that point in the interview and that she had some genuine concern for his position and said that that is why she made so many attempts, including ringing the lawyer access line, which she said is highly unusual for police to go to those lengths.

Detective Sergeant Day was next called by the Crown Prosecutor. His evidence in chief was that Mr El Mostafa appeared very calm at his house. He also realised that he, Detective Sergeant Day, knew at every stage that Mr El Mostafa wanted legal advice. He was not aware at Mr El Mostafa's home that there was any mental health issue or medication issue and he was not sure at what stage he became aware of any mental health or medication issue.

He acknowledged that he was the senior officer involved at the stage of the interview. He could not recall if the custody manager at the police station had mentioned medication. It was important for him to know because that would involve a protocol so far as that kind of illness was concerned and he would seek advice, particularly if an illness such as schizophrenia was involved.

Asked in cross-examination about Mr El Mostafa's demeanour he answered that the demeanour changed during the course of the interview in that he became less compliant during the process and that his mood changed from when they first met to when they finished.

He acknowledged frankly that before the record of interview it was quite clear that Mr El Mostafa did not want to answer questions so far as the allegation was concerned but insofar as other matters he thought that he was agreeable to answering questions. He acknowledged that one thing that he hoped the record of interview would achieve was an admission that Mr El Mostafa was Abu Fajr. He was quite happy to obtain an admission to that effect which is why the name question was asked. Asked whether he considered the asking and answering of the question about the name (which he acknowledged was an admission which would assist the investigation) was a fair question, given his desire for a lawyer, he said that he regarded it as fair. Insofar as the questions concerning the process of an identification line-up were concerned Detective Sergeant Day made it clear that he wanted a clear "no" from the suspect so that there was no doubt about his answer to that question.

Had he known about any mental illness such as schizophrenia he said that the questions would not have changed but would have been done on the advice of a medical practitioner and perhaps at a later time and that there were other issues about the true name of Mr El Mostafa.

Mr Simpson called his client, Mr Amir El Mostafa, to give evidence before me. He said that he had been prescribed medication for depression and also for schizophrenia. He normally kept the medication on the top of the television and normally took one of the medications a day but also two when they were needed. Asked what would happen if he did not take his medication he said he would feel very uncomfortable and unstable and unbalanced in talking. He can feel something in his chest, a tightness psychologically affecting him. He cannot talk properly and he loses his temper easily.

Mr El Mostafa said he could not recall whether he told the police at his home regarding the medication. Asked whether he told anyone at the police station regarding his mental illness and medication he said that he did tell them that he was sick and needed to take his medication and that his medication was at home. He did not recall to whom he gave that information.

He was not given medication before the record of interview nor was he given it afterwards. Before the record of interview he was told he could speak to a lawyer. He was told that a lawyer would be brought and he wanted to bring his own. He had some unsuccessful attempts to contact a lawyer of his own but spoke to a person named Liam who was contacted by the police and to whom Mr El Mostafa spoke.

Liam told him he was very busy and could got come and gave him advice about how to deal with the police whilst he waited for a lawyer to arrive. The advice was about not talking about anything because he does not understand the legal issues. He acknowledged that during the interview he was very nervous and tense because of his lack of medication.

Before the record of interview he said he told the police that he wanted to wait for his lawyer. Asked why by Mr Simpson he said that he did not know anything regarding the law and when the interview started he believed he had to answer all the questions. He said that the police were putting pressure on him. He felt pressured and he told them he felt pressured at the end. He told them many times, he said, that he wanted a lawyer and kept saying that he was not willing to answer questions but they kept asking questions again and again.

In cross-examination he said his medication included Zoloft prescribed by a Dr M Saeed. Asked why he did not take his medication to the police station he said they did not let him, they just allowed him to get dressed and that was it. He could not remember how many calls he had made to try to speak to a lawyer but he felt, he repeated, under pressure to answer questions.

Asked when in the record of interview he first felt the pressure to answer questions he said "when they kept insisting and I kept repeating I wasn't going to talk unless a lawyer was present".

The record of interview itself was played before me. My observations of Mr El Mostafa during the course of the interview was that he appeared composed from the start. He occasionally spoke English. I did not regard the police as overbearing but they were persistent in their questions. Mr El Mostafa made it clear very early in the interview that he wanted a lawyer and he did not give the outward appearance of suffering from a great deal of pressure. Further in cross-examination he said he was impatient to finish. Asked why he answered the questions about his name, he said they gave him the choice to give my name or not so I gave them the name to get rid of the situation. So he chose to answer the question. He wanted to finish everything and leave. They were, he said, really constant and really persisted to get the answers and he acknowledged that he did not say during the course of the interview that he was waiting for medication or that he had asked for medication.

Mr Simpson called Dr Karima Attia-Soliman, known as Dr Soliman. She is a medical practitioner and sees only psychiatric patients and has a specialty in that area. She said she saw Mr El Mostafa on 28 April 2003. Her diagnosis was of schizoaffective disorder as well as chronic depression and grief. She prescribed various medications including Resperidon which is an antipsychotic and a packet of which had been tendered during the evidence. Between May 2003 and August 2004 she saw Mr El Mostafa eight times. She had prescribed Abilify in respect of his psychosis and Avanza in respect of his depression. In respect of schizophrenia she said that it cannot be cured and if untreated a schizophrenic person may feel paranoid and isolate themselves, and such a person should take medication every day.

She was asked to assume that he had taken his tablets since May 2005 up to the morning of 29 July 2005 and had then been arrested and gone to the police station to be interviewed without his medication that morning or during the course of the morning. Asked what the likely effects of the absence of medication in that sort of environment, she repeated that a person with schizophrenia can feel very paranoid and may become more florid and it can be reflected in heightened anxiety which would accompany such symptoms and in sweaty palms or even shouting and screaming.

She said in cross-examination by the Crown Prosecutor it was consistent with his condition that he did not feel like talking to anyone anymore because schizophrenic patients do not like to be exposed.

I do not see the need to resolve any factual issues in this case or at least on these applications. It is clear to me that Mr El Mostafa's first language is not English and that he needed an interpreter to be interviewed by the police. It is clear that he was diagnosed as suffering from schizophrenia and depression and that he was prescribed medication in respect of those conditions. It is clear that he sought a lawyer and had limited access to a lawyer by telephone and made it clear to the police that he did not want to answer questions without consulting a lawyer. It is clear from the custody management record that certain police at the police station where he was interviewed knew that he had a psychiatric condition and indeed that the management record included a reference to a previous attempt at suicide.

I am not satisfied that either police officer who interviewed Mr El Mostafa knew of his mental health condition before the interview or of his need for medication. To that extent there appeared to be a breakdown of the procedures within the police station whereby the significant contents of the custody management record were not drawn to the attention of the interviewing police the interview.

Based upon that evidence Mr Simpson's first application is made under s 85 of the Evidence Act. I do not propose to set out the terms of the section and I rely upon Mr Simpson, if need be, to explain the terms of the section to his client. I note that s 85 is limited to an admission. In that respect I regard the relevant portions of the record of interview as those concerning the answers he gave to questions about his name. I do not regard the answers given concerning the procedure for a line-up as constituting admissions.

Mr Simpson's application was for a ruling under s 85 that the answer given by his client specifically to question 19 in the ERISP was inadmissible (and I acknowledge that his application covers the whole of the ERISP). But as I have just said under s 85 the portion I regard as an admission concerns the name and the answer given to question 19 that he was also known by the name of Abu Fajr. Mr Simpson submitted that that answer should not be admissible because the court could not be satisfied on the balance of probabilities that the circumstances in which that answer was given were such as to make it unlikely that the truth of the admission was adversely affected.

In referring to s 85(3)(a) Mr Simpson relied upon his client's non-English speaking background and the evidence of his mental illness as well as hearsay evidence that his client had been imprisoned in Iraq. He acknowledged that there was no s 85(3)(b)(ii) threat or promise or inducement and that there was not a lot that could be said in respect of s 85(3)(b)(i), namely the nature of the questions and the manner in which they were put. I agree with that.

Mr Simpson argued that the issue: "...having all that material to decide whether or not the admission made, that is the answer to the question regarding his nickname, was such as to make it unlikely that the truth of the admission was adversely affected."

That was Mr Simpson's description of the issue. The Crown bears the onus on the balance of probabilities of demonstrating that unlikelihood and Mr Simpson also drew my attention to the evidence of Dr Soliman. 31. On the other hand, the Crown Prosecutor first pointed out that there was no evidence before the court in any form that Mr El Mostafa had been tortured in Iraq. Furthermore, he pointed out that Mr El Mostafa was assisted during the ERISP by an interpreter at all material times. He pointed to Mr El Mostafa's demeanour as demonstrated during the interview. He pointed to an example of an appropriately answered question referred to by Dr Soliman. He argued that the evidence pointed to the accused becoming impatient and bored during the ERISP, but nothing to suggest he was suffering from a psychotic episode.

32. The Crown Prosecutor pointed out that the accused elected to answer the question about his name during the ERISP and after he had spoken to a solicitor, named Liam, on the phone, so he was not uninformed or overborne by a police officer. The Crown Prosecutor also pointed to evidence given by the accused before me about why he had answered the question about his name, namely:

"...because they gave me the choice to give my name or not. So because I wanted to get rid of everything, I just did, I just gave them my name." That answer should be seen in the context that he had earlier and later during the ERISP exercised his right not to answer questions. 33. I am satisfied on the balance of probabilities that the circumstances in which Mr El Mostafa answered the question about his name were such as to make it unlikely the truth of the admission was adversely affected. He had the assistance of an interpreter. He had previously had access to legal advice and was aware that he could decline to answer questions. He did not give the appearance on the ERISP tape of being confused; nor did his behaviour demonstrate anything which might point to some psychotic episode. The question itself was not complex and indeed it was a simple and fundamental question. For these reasons I am satisfied that the circumstances in which he admitted that he was also known as Abu Fajr were such as to make it unlikely that the truth of the admission was adversely affected.

34. Mr Simpson's next application was under s 90 of the Evidence Act and made in respect of the whole of the ERISP. In my opinion the relevant components of the ERISP are the answers given by Mr El Mostafa concerning his name and the questions and answers concerning the identification line up. In my opinion s 90 applies to both those sections. It applies to the admissions concerning his name because s 90 applies to "an admission" and it applies to the answers given concerning the line up because the section also applies to "evidence to prove a particular fact".

35. The fact in question here would be whether or not Mr El Mostafa refused the opportunity for a line up. Once again I do not propose to set out the terms of the section and rely upon Mr Simpson to point those terms out to his client, if need be.

36. As the current authority in this state for the interpretation of that section, both parties referred me to Regina v Sophear Em [2003] NSWCCA 374, a judgment of the New South Wales Court of Criminal Appeal. The leading judgment was given by Howie J, with whom Ipp JA agreed and Hulme J substantially agreed.

37. Mr Simpson, based on that authority, submitted that neither the probative value of the proposed evidence, nor the seriousness of the offence are relevant considerations and I agree that those propositions are found in [110] and [113] respectively of Howie J's reasons. Accordingly, I accept that submission. Both counsel have also referred me to [104] of Howie J's reasons in that judgment in which Howie J said the following regarding the general effect of s 90: "Section 90 in effect confers on the trial judge a discretion to reject evidence of admissions where to admit them would result in an unfair trial for the accused. It is unfairness arising from the use of the admissions by the prosecution that is central to the discretion under the section and not whether the police unfairly treated the accused. The purpose of the discretion is the protection of the rights and privileges of the accused. It is concerned with the right of an accused to a fair trial and includes a consideration of whether any forensic advantage has been obtained unfairly by the Crown from the way the accused was treated. There may be an overlap between issues of voluntariness, reliability, fairness to the accused and the public policy discretion."

I have omitted references to authority made by his Honour. 38. Mr Simpson posed the question whether it was appropriate for persons with a diagnosed mental illness and not speaking English to be the subject of a record of interview where a deliberate attempt was made to obtain an admission, when that person asked for a lawyer. It is important to note in regard to Mr Simpson's submissions that the focus of the s 90 discretion is the use of the admission in the trial by the prosecution. Mr Simpson further submitted that s 90 includes what was formerly known as the public policy discretion. This is true, as Howie Jacknowledged in Em, at [104], but the section of the Evidence Act which most closely reflects the public policy discretion is s 138: see the discussion of Howie J over [74] to [75] of Em.

39. An aspect of the way in which the evidence may be used unfairly against his client so far as the admission concerning his name is concerned was, Mr Simpson argued, that witnesses at the trial are likely to identify his client by reference to the name Abu Fajr. A number of those witnesses did not know his client personally, but by reputation and that reputation included the person known as Abu Fajr handing out material which said hateful things about Shi'ites. Hence Mr Simpson argues in challenging the veracity of those identifications, Mr El Mostafa may have to delve into some of that background knowledge.

40. Furthermore, Mr Simpson pointed to the answers to question 5, 6, 7 and 8 in the ERISP. Those questions and answers are as follows:

"Q5. Do you agree that prior to this interview commencing, I told you that I intended to ask you further questions which, together with your answers, would be electronically recorded? A. I don't wanna answer because I need a lawyer.

Q6. Okay, these are just the preliminary questions. I understand you don't want to answer any questions about the allegations. Just at this stage you are just going through whether you agree that prior to us turning the tapes on, did we tell you that it was going to be recorded? A. No, I don't - no, I don't, I believe. Q7. That we told you that it was going to be recorded on the three tapes and the videotape, we explained that? A. This I agree to. Q8. Okay? A. But I don't agree to answer to the allegations because I don't know about the." 41. I might add here that there is a separate question about the interpretation of the questions and answers. Mr Simpson argues that after his client objected to answering questions (see Q5), he was reassured by the police that they understood that he did not want to answer any questions about the allegations, but that they would proceed with "just the preliminary questions". Those preliminary questions then included not only his name, but whether he was known by any other name, to which he replied "Abu Fajr".

42. The Crown Prosecutor argues that Mr El Mostafa did exercise his right to silence when he wished to stop. He referred me to Regina v Pham (2001) 123 ACrimR 30 and the judgment of the then Chief Judge at Common Law, Wood CJ at CL, with whom the present Chief Judge, then McClellan J, agreed. There it was said that there is:

"...no absolute rule that an interview conducted in the face of an objection by a suspect, or continued in the face of an indication that he or she does not wish to participate any further in it, should be rejected if tendered in evidence."

Wood J said at [56]: "Each case must be determined on its own facts, and in particular by reference to the extent to which there is any unfair pressure placed upon the person being interviewed, or unfair advantage taken of his position, for example because of his age, vulnerability, lack of familiarity with the English language and so on. Moreover, in any weighing exercise the probative value of the evidence needs to be taken into account." 43. I have previously indicated that in respect of the probative value I propose to follow the more recent Court of Criminal Appeal decision in Em. The Crown Prosecutor argued that the police in this case were trying to identify the man they were interviewing. There had been some uncertainty because of documents located in the accused's wallet and at the premises. There was nothing observable in the interview which could be described as unfair, pressurised or unduly repetitious.

In my opinion it would not be unfair to Mr El Mostafa to use the evidence of the admission of his name, having regard to the circumstances in which the admission was made. Those circumstances will be the subject of closer examination by me when I consider the application made under s 138 of the Evidence Act, but include his mental health condition and the fact of his need for medication and the fact that his first language was not English, as well as his persistent requests for a lawyer. However, as Howie J said in Em, the focus of s90 is the use of the admissions in the course of the trial. Mr Simpson pointed to the cross-examination of potential witnesses about the name Abu Fajr and how they came to know that name. It seems to me that it will be inevitable that there will be a degree of cross-examination in any event regarding the name Abu Fajr.

The Crown proposes to call a number of purported eyewitnesss who will identify the accused Mr El Mostafa by reference to descriptions and by reference to the name Abu Fajr. If Mr Simpson proposes to challenge those identifications, it will be necessary for him to delve into those areas in any event.

I acknowledge the force of the submission that s 90 prescribes an unfairness but in my opinion that unfairness needs to be taken in the context in which the evidence will be used in the course of the trial. Also, as the Crown Prosecutor said, evidence led by witnesses who will identify the accused Mr El Mostafa by reference to photographs may well have to be the subject of the same kind of cross-examination.

Insofar as application was made under s 90 by Mr Simpson for the evidence concerning the line up interview not to be admitted against his client, I cannot see any basis upon which it would be unfair to his client to use that evidence in the course of this trial.

I turn now to the applications made by Mr Simpson under ss 138 and 139 of the Evidence Act. Once again I do not propose to read out those sections for the reasons which I have indicated previously. Mr Simpson argued what he said was the threshold point of impropriety under s 138(1). If he was successful in convincing me that there was impropriety, then he correctly points out that the onus falls on the Crown in accordance with that subsection to convince me of the desirability of admitting the evidence by reference to the weighing process specified.

Mr Simpson's submission was that the evidence in the ERISP was obtained improperly because of a combination of his client's mental health condition and need for medication and as well as his client's express request for a lawyer and finally his client's lack of English as a primary language. Mr Simpson made it clear that the most important of those issues was his client's mental state. In this regard he pointed to the documentary evidence of the custody record which indicated a mental illness and a previous attempted suicide and he submitted that regardless of whether the interviewing police were aware of that record, they ought to have been made aware of it before the interview. As he said, "They ought to have been advised of the fact that he had a mental illness and was, on his own account, on medication".

This circumstance was aggravated by the fact that English was his second language and his persistent requests not to be interviewed without a lawyer. Mr Simpson further argued in reliance on s 139 of the Evidence Act that the caution was not adequately translated and therefore was a deemed impropriety by virtue of s 139(1) and s 139(3) of the Evidence Act. There is some substance in that submission, in that it is apparent from exhibit VDEM 28 that there has been an omission of part of a caution and some other minor inadequacies in interpretation.

However, I note that in Regina v Taylor [1999] ACTSC 47 Higgins J, as the Chief Justice then was, said as follows: "In my view, because it is, albeit deemed, improper for a police officer (or other relevant official) to omit a caution, or to deliver a caution where the person cautioned will not comprehend it, it seems to me that the caution will fail to satisfy s 139(3), if the circumstances are such that the officer knows, or ought to know, that the caution has not been understood. However, there is no such failure if a reasonable person in the position of the officer, acting with proper respect for the rights of suspects, did not and could not reasonably have been expected to perceive that the suspect did not understand the caution." I respectfully agree with his Honour's judgment and I do not regard any deemed impropriety as arising in the circumstances of this case. 52. The Crown Prosecutor initially submitted that: "There is a perceived degree of impropriety within the bounds of s 138(3)". However, he appeared to alter that submission and submit "There was no impropriety which would attract s 138". As to the English language issue, he pointed out that Mr El Mostafa had an interpreter available and he accepted that there was, within the knowledge of the police at the police station, the fact that Mr El Mostafa had a mental illness; it was, he said, indicated on the custody record. However, he said that the medication had been prescribed some years before. The only behavioural indications during the interview were consistent with boredom and impatience which had been acknowledged by Mr El Mostafa.

As to the questioning of the accused about his nickname after he had indicated his desire not to answer questions because he needed a lawyer, the Crown Prosecutor submitted that was a relevant question for two reasons: the first was that the police had evidence of a number of different identities and they needed to pin down by which names this particular interviewee was known; the second reason was related to the investigation and was because, as both police officers conceded in evidence, it was important for their investigation to establish that the man they were interviewing, whom they suspected of being involved in the riotous events, was also known as Abu Fajr.

As the Crown Prosecutor said, the answer given in the ERISP "is in fact an admission that the Crown would be relying on". The Crown Prosecutor submitted that the need to sort out the "multiplicity of identities is not tainted in terms of impropriety by the fact that it did have an investigative aspect to the question".

In my opinion, the evidence obtained in response to questions 18 to 22 was obtained improperly. I am of this view for two reasons. The first is that the custody management record clearly indicates that the interviewee had a mental illness and had previously attempted suicide. That ought to have been drawn to the attention of the interviewing officers. As Detective Sergeant Day acknowledged, had he been aware that Mr El Mostafa suffered from schizophrenia, he would have sought advice as to whether to continue with the interview process, or have a doctor see him. To my mind the fact that the interview proceeded despite the contents of the custody management record, was an impropriety. I do not have an evidentiary basis to attribute that to either of the interviewing officers and nor do I attribute it to them, but it appears to be a result of a breakdown in an internal police procedure.

The second reason for my view that there was an impropriety arises from questions and answers 5 and 6. I have previously set out the terms of those questions and answers. Mr El Mostafa had made it clear that he did not want to answer questions because he needed a lawyer. The response of Detective Whitton was somewhat reassuring, indicating to him that "These are just the preliminary questions". She acknowledged that he did not want to answer any questions "about the allegations". She suggested there was a formal procedure of confirming what had previously occurred. That was followed by a series of formal questions about his name but when the questions about the name went into the area of whether he was known by any other name, that in my opinion became improper. It became improper because the police officers in their evidence before me frankly acknowledged that establishing that the interviewee was Abu Fajr was a significant step.

In my opinion there is a sense in which that question was part of the substantive allegations against the interviewee. If the interviewee was indeed Abu Fajr then an important component of the police case was made out. I think Mr El Mostafa could have been misled by the distinction between "the preliminary questions" and questions "about the allegations". The result was that the police obtained a very significant piece of information about the allegations against the interviewee despite his desire not to answer questions about the allegations.

That little piece of information came in the form of what otherwise would be regarded as innocuous questions about his name. So far as the evidence obtained in response to questions 59 to 64 concerning the identification parade is concerned, in respect of any deemed impropriety as a result of s 139 I hold the same view as previously expressed. I regard the presence of an interpreter as the best the police could do in interviewing a non-English speaking suspect in the circumstances.

It is clear Mr El Mostafa understood the questions and answered these questions with reasons. These questions are not infected by the impropriety concerning the suspect's name. These questions concerned a procedure which the police needed to ask the suspect about. As question 59 says: "What we need to ask you is…". However, these questions are unaffected by the impropriety of the police custody management record pointing expressly to a mental health issue, but I regard the desirability of admitting this particular evidence, the answers to questions 59 to 64, as outweighing the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

I take into account in this regard that the charges faced by Mr El Mostafa are serious and the circumstances of the alleged offence were serious and the impropriety appeared to result from an administrative error. In any event the impropriety in this regard concerns specifically the lack of attention given to his mental state, but the answers given to this particular part of the series of questions by Mr El Mostafa were, as I have said, very rational and responsive and I take that into account as well.

Returning to the questions and answers concerning the name, having found that that evidence was obtained by an impropriety, it then becomes inadmissible "unless the desirability of the admitting of the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained". This includes consideration of the factors listed in s138(3) which were addressed by counsel.

The Crown Prosecutor submitted in accordance with (a) that the probative value of the evidence was high because it formed a basis or at least one basis for later identification evidence. As to (b) the Crown Prosecutor described the evidence as important. As to (c) he said that the nature of the offences for which the accused faces trial involved a very serous matter that occurred in a public street late at night. He submitted in respect to (d) that the gravity of the impropriety involved "is very much at the lighter end". He linked that to the reasons for asking the identity question, one being the multiplicity of identities. The Crown Prosecutor frankly acknowledged consistently with the evidence that, so far as (e) is concerned, the impropriety was not so much reckless as deliberate in that the officer admitted that there was an investigative aspect. There was no basis for a submission in respect of (f) or (g). As to (h) the Crown Prosecutor said the difficulty of obtaining the evidence has been through the photographic identification. As he said, as it stands right now the Crown does not have any evidence except for the nexus of the photographic identification. However, it is the case that the photographic identification is now admissible.

Mr Simpson's submission in respect of (a) was that the probative value was not particularly high and concerned only a nickname. As to (b) he acknowledged that the evidence was clearly important to the Crown case because it can link up with the photographic identification. He submitted that the maximum of 15 years for the offence of riot placed the relevant offence in the mid range so far as clause (c) is concerned. He submitted that the gravity of the impropriety was high. He said that police were entitled to ask questions to see if answers would assist but there was a limit on that entitlement. His client made it clear a number of times that he wanted a lawyer. He agreed with the Crown in respect of (e) that the impropriety was deliberate and he made no submission in respect of (f) or (g). So far as (h) was concerned he asked rhetorically who knows, if he had been afforded an opportunity to be questioned in the presence of a lawyer, whether his client might have assisted the police. He submitted that the process was unfair in all the circumstances.

I regard the probative value of the evidence as high. It is a direct admission by an accused person of an evidentiary aspect of the case against him which is significant. The evidence may or may not be important in the proceedings and, now that the identification evidence is likely to be admitted, it is likely to assume less importance in the proceedings.

However the offence charged is a serious one. It is a significant public order offence. The subject matter of the proceeding in this case concerns an alleged riot on a public street involving the discharge of a firearm. I do not regard the impropriety of interviewing Mr El Mostafa, despite his mental conditions, as grave because I am not convinced that the interviewing police knew about it at the relevant times. Nor do I regard the impropriety of asking the question about the nickname as very grave, although it ought not to have been asked after the reassurance about the formality of the questioning.

The police were entitled to press their questions to a certain extent despite the suspect's express desire not to answer questions, but they should have been alert to the fact that the questions on his name drifted from formal to substantive after he was told they were "just the preliminary questions". To this extent in my opinion the questioning process probably lulled Mr El Mostafa into a false sense of security.

In the circumstance of the case the identity of the suspect by reference to the name Abu Fajr was important and he had been reassured that he would not be asked about the allegations. Despite the significance of the offence and the circumstances of the offence and the significant probative value of the evidence I regard the desirability of it being admitted as not outweighing the undesirability of admitting evidence that has been obtained in the way in which this evidence was obtained. I take into account that the impropriety involved in questioning about the nickname ought not to have occurred. The suspect's mental state was unlikely to have been within the knowledge of the police but as I said the impropriety concerning the questioning after the reassurance ought not to have occurred.

Accordingly, in respect of Mr Simpson's various applications, I reject his application made under s85 of the Evidence Act in respect of the whole of the ERISP. I reject his application made under s85 of the Evidence Act in respect of that part of the ERISP which arguably amounts to an admission, namely the answers concerning his client's name. I reject his application made under s90 of the Evidence Act concerning the whole of the ERISP. I reject his argument that there is a deemed impropriety because of the translation issue, the deemed impropriety coming about by the operation of s139 of the Evidence Act.

In respect of his application under s138 of the Evidence Act in respect to the whole of the ERISP I reject that but insofar as that application refers to questions and answers 18 through to and including 22 I grant his application and rule that that evidence is not to be admitted in this case. oOo

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.