Criminal Law - Evidence - Judicial discretion to admit or exclude evidence - Police interrogation - Propriety of police questioning and other conduct by police - Administering caution - Particular cases - Impropriety or unlawfully obtained evidence - Question of sufficiency of accused's understanding of English - Whether accused understood caution and questioning - Whether interview admissible or to be excluded.

Evidence Act 2001 (Tas), ss85, 90, 138, 139.

Criminal Law (Detention and Interrogation) Act 1995 (Tas), s5.

R v Deng [2001] NSWCCA 153, R v Taylor [1999] ACTSC 47, followed.

Judgment Number: [2008] TASSC 48

1 This was a determination pursuant to the Criminal Code, s361A. The accused was indicted with one count of indecent assault, two counts of rape (vaginal), and one count of attempted rape (anal). He pleaded not guilty to all counts.

2 Before a jury was empanelled, I heard evidence and received submissions in relation to an electronically recorded interview between police and the accused. The issues were its admissibility and whether it should be excluded in the exercise of a discretion. The central questions were whether the accused understood the caution given to him twice before the interview, and once during it, and whether he understood the questioning itself. The accused is Croatian; his first language is Serbo-Croatian.

3 Counsel agreed that on this determination I could have regard to the Crown papers to the extent that they disclosed the evidence the Crown would seek to adduce.

4 Immediately before the empanelment of the jury, I ruled that the record of interview would not be excluded from evidence. These are my reasons for that ruling.

5 The Crown case was that on Friday 7 March 2008, the complainant ("K"), went alone to the Queens Head Hotel in North Hobart at about 3.30pm. She started talking to the accused whom she had met there about three times in the past. The accused and a friend bought her a few drinks. At some stage the friend left and at about 6.pm - 6.30pm, the accused suggested to K that she went home with him. She asked him on a number occasions to promise her, that "nothing sexual would happen", and she agreed to go with him.

6 Before leaving the hotel, the accused bought a bottle of Black Douglas scotch whisky, a bottle of Diet Coke and a carton of "VB" beer.

7 After the complainant drank the best part of the bottle of whiskey, and the accused drank about five cans of the beer, it is alleged that the accused sexually assaulted K, as alleged in the indictment, the course of events commencing with the forced removal of her jeans and pants, and an act of oral sex.

8 Later, just before midnight, the accused called a taxi for the complainant. When the taxi arrived, K got in the front passenger seat and immediately exclaimed to the driver that she had been raped. He took her to the Hobart Police Station. Subsequent medical examination revealed the presence of semen in her vagina and evidence consistent with, at least, vigorous sexual intercourse.

9 At about 9.45am on Saturday 8 March 2008, Det Sgt Manhood and three other officers went to the accused's home. Shortly after their arrival, the accused was cautioned, Sgt Manhood saying that he was not obliged to say or do anything but that anything he did say would be recorded and given in evidence. The accused responded by saying that he had not done anything wrong, "there was not a problem", and that he was happy to co-operate. Sgt Manhood was in the company of the accused for a little over an hour, after which the accused was taken to the Hobart CIB office where the video recorded interview was conducted.

10 The duration of the interview was 41 minutes. At its commencement, after questions and answers as to the accused's name, age, date of birth and home address, the following exchange occurred:

"Q ... Now Miroslav as I explained to you this morning when we came to your house a young girl has made a complaint to police that last night that [sic] you had sexual intercourse with her without her consent. She's made a complaint to us and that's what we're investigating. Do you understand that that's what we want to speak to you about?

Q And as I said to you up at the house you're not obliged to answer any of our questions or do anything here unless you wish to do so. Anything that you do say will be recorded and may be given in evidence. Do you understand that?

11 The accused was then taken through the course of events following the arrival of police at his home that morning and was asked whether he remembered what he had told the police about the events of the night before. The questions and answers then proceeded as follows:

"Q ... Well can you remember what you said to me this morning -

Q All right. Can you tell me what you told me had had happened last night?

A Yeah, yep, I, I, I tell you, um, first yesterday afternoon she, she is, er, be with boyfriend and, er, I don't know what is wrong, he is good, he is good, good man, good bloke and after this she smoke marihuana and I buy two drinks and after, after this I go at home. She was going to me, not a problem I go in Queens Head in bottle shop, take one bottle, um Jack Daniels and one bottle of VB, er, a carton of VB and, er, two litres Diet Coke. She's probably 2, 2½ hours at my place and smoke again marihuana and I look at she, she is not feeling very well. I tell she I ring you a taxi, go home."

12 When the accused was then taken through the events of the night as they unfolded, the same story essentially emerged. When he was asked if he knew the girl who was being spoken of, he gave basically the same compendious answer.

13 On numerous occasions throughout the interview, the accused denied any physical contact with K, apart from contact which he said was instigated by her. He suggested that K tried to touch him on two occasions by touching his head and trying to kiss his neck, but that he said "no". The Crown said that it would rely on those denials as lies evidencing a consciousness of guilt, thus making, it was said, the statements admissible as admissions under the Evidence Act 2001 ("the Act"), s87. Counsel for the accused did not dispute the essential admissibility of the interview, on that basis.

14 About halfway through the interview, the accused mentioned for the first time that his English was very bad. He was asked what he and K had been talking about. He said "Oh, my English is very bad, she is understand me something, ...". He went on to explain, albeit not fluently, that he had put a tape on, they had listened to the tape for a while and he had listened to her. He again said that after she had "rolled marijuana I look at she, is very, very bad looking. I tell she I not have any trouble, go home. She tell me she don't have home, I tell she not, not stay at my place and that's it and I ring taxi."

15 The were four subsequent occasions in the interview on which the accused said that his English was very bad; once when he was asked to explain why K would say that he had had sex with her, twice when he said he knew what oral sex was, but was asked to explain it, and lastly twice when he was asked at the end whether there was anything further he wanted to say to have recorded.

16 I should also note that towards the end of the interview, Sgt Manhood said to the accused that he had been told "a couple of times" that he did not have to answer any questions unless he wished to do so, but at that stage he [Manhood] did not believe what the accused had said. The accused replied, "Yeah".

17 Sgt Manhood gave evidence that when police arrived at the accused's unit, two officers went inside and conducted a scene examination. He stayed outside with the accused and made notes of conversations which were had, and of other events. Those events included the accused telephoning someone he said was his lawyer, and telephoning someone he said was a friend.

18 Shortly before they left to go to the police station, the accused asked if he could have a beer. When told that this would not be appropriate, the accused became a little upset and made a comment about how he thought this was a democratic country "... and that it was in fact a shit country".

19 In cross-examination, Sgt Manhood said that when he first arrived, he told the accused what the police were there for. The accused denied that he had sexual intercourse with the complainant and then, after that initial discussion, they talked about other matters not particularly related to the case.

20 He said that he explained to the accused when they arrived, that after the search was finished he would like him to come back to the police station. The accused said that he would, it was not a problem, that he had not done anything wrong and that he would co-operate. The accused asked at that point if he could ring a lawyer and at that stage his mobile phone was retrieved so that he could do that.

21 The accused made a couple of telephone calls. Sgt Manhood did not listen to what was said, but was told by the accused that he was not able to make contact with his lawyer. However, he did contact a friend to whom the accused was speaking in a language other than English.

22 This person was later established to be Milan Cica. Sgt Manhood said that he was not aware that the accused had asked Mr Cica to come to the police station. However, there was a phone call received on the accused's mobile at the police station in the interview room, immediately before the interview was commenced. This, he said, he understood to be from Mr Cica.

23 The accused asked if his friend could come in for the interview. Sgt Manhood said that this would not be appropriate and the refusal was conveyed over the phone to Mr Cica. The following exchange occurred in cross-examination:

"HIS HONOUR: Did the accused say why he wanted Mr Cica to be there?.

WITNESS: Initially, he just said he wanted his friend to come. When I said no, he did say he could translate. And I explained that that wouldn't be appropriate. That, if we needed a translator, it would have to be an accredited translator. And, at that point, he said, 'No, not a problem'.

...

So before the record of interview commenced Mr Stojakovic had raised with you his wish for his friend to be there to assist him in translating?..........No, initially he expressed a desire to have his friend present.

Yes. And when I declined that he then suggested him as an interpreter so that the initial purpose wasn't to have him as an interpreter, it was simply to have him there.

...

And he then explained in the face of your denial that he wanted his friend to be there to act as an interpreter or to translate?.............Yes, that's correct.

And we've established that you denied that permission?............That's correct."

24 Sgt Manhood said that he did not believe that if the accused wanted a translator to be there, it may be that he was going to have difficulty in understanding the questioning, and that he may have difficulty in acquitting himself reasonably. "... I'd formed the specific belief that he, he and I were understanding each other quite well".

25 He said that after the accused asked for his friend to be there to translate, he explained that if the accused were to need a translator, that they would get an accredited person. The accused said "no" that he did not need one; "So he declined the opportunity for a translator but regardless of that I was still of the view he didn't require one". Sgt Manhood was asked how, as the accused had asked for a translator to be present, was he able to asses whether the accused understood the refinement of "an accredited person". Sgt Manhood said that he had spoken to the accused for about an hour and a half at the house, that they had spoken about quite a lot of things over that time, and that he had formed the impression that they understood each other quite well.

26 He went on to say that he thought the accused's English, though not 100 per cent, was quite good and that it had not occurred to him that the accused was labouring at a disadvantage because he was not reasonably fluent in English. He conceded, however, that he did not ask the accused any specific questions as to his ability to speak English, but said he had formed an opinion as to his ability after speaking to him for that period of time, and also because of being told by the accused that he had lived in Australia for 11 years.

27 Sgt Manhood recounted a number of personal details that the accused had passed on to him during their time at the accused's unit. He said that he was aware of the potential for language difficulties with someone who did not speak English as their first language, but repeated that as he had spoken to the accused for a long period of time before the interview, had considered the need for an interpreter, and decided on the basis of his dealings with him that it was not required.

28 He agreed that he understood that it was important that an accused person was able to acquit himself in fairness, in the context of a recorded interview, and felt that the accused was able to do so. This was notwithstanding the difficulties the accused had expressed with his English on several occasions during the interview.

29 The accused gave his evidence-in-chief on this determination through an interpreter. He said that he could only follow the English language when people spoke very slowly or where there were no difficult words or complicated conversations.

30 As to the request for an interpreter, the accused gave evidence of calling Mr Cica from outside his unit. His evidence was as follows:

"And what did - did he ask Detective Sgt Manhood if he could that?.........Yes, I said I wanted to speak to my friend as an interpreter, yes.

As an interpreter. And what did Detective Sgt Manhood say?.........He allowed me to make a phone call to my friend Milan -

And what did Detective Sgt Manhood say to him as to Milan acting as a translator?..............If he's not a qualified interpreter he can't interpret, that means my friend, Milan.

He's your friend?..........Yes.

Did he ask for an interpreter, did you ask for an interpreter other than your friend, Mr Cica?...............Yes, I asked for a qualified interpreter or for my friend.

And what did Detective Sgt - what did he understand Detective Sgt Manhood to say to that request?...............As far as I could understand Milan could not interpret- regarded as a qualified interpreter, I didn't understand what he said.

Regarding a qualified interpreter?...............I didn't understand that one, no.

You didn't understand what he said?..............No, no.

So did you understand that you could have an interpreter present other than Milan Cica?...................No, I did not.

If you had have understood that you could have a qualified interpreter other than Milan Cica would you have asked for such an interpreter to be present?.............Yes, I would." [Emphasis added.]

31 The accused said that he essentially understood what a qualified person entailed, but said that as far as he could remember, Sgt Manhood definitely did not say that he could have such a person present.

32 The accused went on to say that he understood that he had to take part in the interview, and did not understand that he was entitled to insist that an interpreter be present. He said that he did not know what the word "caution" meant, that he did not understand the words of the caution as set out at the commencement of the interview, and did not understand the words "rape", "consent", "obliged", "investigating", "complaint", or "allegation". He understood what "sex" meant, but not the expression, "sexual intercourse". He said he understood 10 to 15 per cent of the whole of what was said to him in the interview.

33 In cross-examination, the accused said that he had told Sgt Manhood that he wanted an interpreter or his friend; "That's all I said ... I knew what interpreter meant but I didn't know what the professional is. I didn't know that, but I knew 'interpreter', yes". At the end of the interview however, when asked if there was anything further he wanted to say, he suggested that Sgt Manhood talk with "my friend who is a professional interpreter".

34 Later in the cross-examination, he did not dispute that when the police would not let him have a beer, he asked whether this was a democratic country. He acknowledged that he knew Australia was a democratic country.

35 He was taken to a passage in the interview where he had said "I don't touch, I don't touch she any time". It was suggested that he knew the police were claiming that he had had sex with the complainant, and that was what he had meant by the use of those words. The accused said he did not know, and that he did not understand the words.

36 When asked whether he understood what "touch" meant, he said "Touch, I understand some things, some things not understand". He was then asked (in English) to touch the microphone in front of him, firstly with his left hand and then with his right, both of which movements he carried out without the benefit of the interpreter.

37 He then agreed that when he said in the interview, "I did not touch" the complainant, he was meaning to tell the police he did not have sex with her. He then agreed that when asked "Did you have sex with her", he understood that it meant sex with the complainant.

38 Without the benefit of the interpreter, the accused agreed that he understood a number of the basic propositions which were being put to him by police in the interview, and that he was intending to convey that nothing had happened of a sexual nature. An exchange at the end of the cross-examination was as follows:

"Right. Well did he understand of [sic] the very next question on the top of page 61 -

'Did you at any stage have your penis in her vagina?'

[INTERPRETER] I didn't understand that question at all.

Well did he know, ... Mr Stojakovic, I suggest you knew what a penis was. A man's sexual organ. You knew that didn't you?.........[ACCUSED] Yeah.

And you knew that a woman's sexual organ was a vagina..........[ACCUSED] Yeah.

...

And I suggest to you that the questions they asked you many, many times were short questions that you understood .........[ACCUSED] Yes"

39 At the conclusion of submissions, an application to recall the accused was made by his counsel, and was granted.

40 Again through the interpreter, the accused was asked why he had said, "Yep, yep, not a problem", when the police said to him that he was not obliged to answer any questions, when (as he had earlier said) he did not understand what they were telling him. The accused answered that he had said that because of his past traumatic experiences during the war, he was willing to co-operate with police. The trauma was revealed as being beaten with rifle butts across his rib cage and neck.

41 He was then taken to the question which was put to him before the caution and which I have set out in par9 above. He was asked why he had said, "Yep, yep". His explanation was that he had said it purely on the spur of the moment; "... I have nothing to say except fear in my mind and yep to me was something, yep, as ... body language or whatever, and that's all I can say, yep is just something you say when you're not sure what to say".

42 In cross-examination the accused was asked whether the police had done anything at all to make him fearful. Through the interpreter, he said that the knock on his door "... wasn't a knock, I thought somebody was forcing their way through into my property". The second thing he said was that he was in bed when it happened. When asked about the significance of that, he said it was the fact of the police being at his door without him being specifically aware of what he had done. He said the minute he heard the knock it scared him because it was not a regular visitor. He went on to add that he was not dressed properly and did not have his shoes on, which put him in a state of panic because he did not know what was happening.

43 The accused was then asked as to why he said, when he was not allowed to have a beer, something to the effect of "is this a democratic country". Again, through the interpreter, he said he did not recall any of that. It was put to him that he was angry because the police would not give him a beer, that he knew that people in this country had "rights", and that he had responded to the comment about his democratic rights. He "totally" denied any conversation regarding democracy or questioning the democracy of this country.

44 When asked further about anything the police did which caused him fear or apprehension, the accused said he was asked questions which he could not comprehend properly and that he lost control on occasions. This he said was at the house. At the police station he said he was losing control because of his fear and past experience.

45 When asked what one would look at on the video recording to see whether he was in fear or not, he said (through the interpreter) "my facial expressions, my hand movement etc ... my mouth expression is when I'm normally nervous and apprehensive I bite my lips and some other things ...". These were said to be "obvious signs".

46 Counsel for the accused submitted that there were three bases upon which the evidence of the record of interview ought be excluded. They were:

•

That the evidence was improperly obtained and/or obtained in contravention of an Australian law within the meaning of the Act, s138, because:

◊ a caution was not given or translated into a language in which the accused was able to communicate with reasonable fluency;

◊ obtained in breach of the Criminal Law (Detention and Interrogation) Act 1995 ("the CLDI Act"), s5.

•

It would be unfair to use the evidence, within the meaning of the Act, s90, because the accused failed to understand the warning (and so failed to understand that he was not obliged to say anything), and because of his inadequate understanding of English.

•

The circumstances in which the admissions were made were such as to make the evidence unreliable, and thus not admissible by virtue of the Act, s85.

1">47 I will deal with the submissions in the order in which they were made.

Exclusion under the Act, s138

1">48 The Act, s138, relevantly provides as follows:

(a) improperly or in contravention of an Australian law; or

(b) in consequence of an impropriety or of a contravention of an Australian law -

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning -

(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or

49 The Act, s139, deems evidence of a statement made or an act done by a person during questioning to have been obtained improperly in certain circumstances. The relevant provisions are:

"139 - Cautioning persons

(1) For the purpose of section 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if -

(a) the person was under arrest for an offence at the time; and

(b) the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person; and

(c) before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.

(2) ...

(3) 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."

50 Under the Act, s138, firstly it is for the accused to establish that the evidence was improperly or illegally obtained, and then for the Crown to satisfy me that the desirability of admitting the evidence outweighs the undesirability of admitting it, given the way in which it was obtained; see for example R v Salem (1997) 96 A Crim R 421.

51 In this case, counsel for the Crown took the position that if the accused satisfied the onus on him, the Crown would not seek to persuade me that the evidence should be admitted.

52 The first question which needed to be determined was whether the accused was under arrest for an offence at the time of questioning within the meaning of s139(1)(a). (It was accepted that the elements of s139(1)(b) were satisfied.) Section 139(5) elucidates the meaning of "under arrest", in s139(1). That provision is as follows:

"(5) A reference in subsection (1) to a person who is under arrest includes a reference to a person who is in the company of an investigating official for the purpose of being questioned, if -

(a) the official believes that there is sufficient evidence to establish that the person committed an offence that is to be the subject of the questioning; or

(b) the official would not allow the person to leave if the person wished to do so; or

(c) the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so."

53 In cross-examination, Sgt Manhood readily accepted that he believed the accused was lying when, at the house, he denied that he had sexual intercourse with K, and was lying "from that point". Sgt Manhood also readily accepted that at the house, if the accused had wanted to leave, he would have arrested him, and conceded that if the accused considered that he was under an obligation to go to the police station, that would probably not have been an unreasonable view on the accused's part.

54 The evidence satisfies me that the accused was in the company of an investigating official for the purpose of being questioned, and that at least two of the matters set out in s139(5) are established. The accused was therefore under arrest for an offence within the meaning of s139(1)(a).

55 The next question relates to s139(3). Prior to the interview being conducted, the accused was cautioned twice, both times in English. The question then is whether English is a language in which the accused was able to communicate with reasonable fluency.

56 In R v Deng [2001] NSWCCA 153, Greg James J said at par[17], of the Evidence Act 1995 (Cth), s139(3), that it:

"... is purposive. It does not operate on an accused's general language ability. It operates on the ability to understand the concept underlying the caution and the function of a caution. The caution is meant to convey to an arrested person that he/she has the right to choose to speak or to remain silent. It is meant to ensure that the person is aware that if he/she speaks, what he/she says may be given in evidence."

57 Ipp JA added that the expression "a reasonable fluency" in s139 (Cth) meant "fluency sufficient to enable the person concerned to understand the caution".

58 With respect, those statements seem plainly correct to me and they should be followed.

59 The accused therefore has to satisfy me that he did not understand the matters contained in the caution; in essence, that he did not have to say anything, but that if he did, it may be used in evidence.

60 However, in R v Taylor [1999] ACTSC 47, Higgins J, dealing with the identical Commonwealth provision, said that because it is improper (albeit deemed so) for a police officer to deliver a caution where the person cautioned would not comprehend it:

"... 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.

Usually the suspect's acknowledgement that he or she has heard and understood the caution will suffice. There may be cases, however, ... where further enquiry ... would be required."

61 Again, with respect, that statement as to the effect of s139(3) seems to be the correct approach, and there is no cogent reason not to follow it.

62 Assuming for the moment that the accused in fact did not understand the concepts involved in the caution, I am satisfied on the whole of the evidence that Sgt Manhood acted with proper respect for the accused's rights, and did not, and could not, reasonably have been expected to perceive that the accused did not understand the essence of the caution. There was no issue beyond that to put him on enquiry.

63 In particular, I would refer to Sgt Manhood's evidence as to the conversation he had with the accused outside the unit whilst the search was being conducted, during which they had spoken about a number of things, including his impression being that he and the accused understood each other quite well.

64 Sgt Manhood related a number of personal details which he said the accused had told him and which, as the accused's evidence proved, were correctly understood by the officer. Generally speaking, although plainly the accused's English is far from perfect, the fundamental thrust of Sgt Manhood's evidence was that there were no real difficulties in communicating, with each apparently able to convey what was intended, with each listener able to comprehend.

65 In any event, as will appear, I was not persuaded on the whole of the evidence that the accused's knowledge of the English language was such that he did not understand the caution.

66 Counsel for the accused did not assert any impropriety other than what would be deemed by the operation of s139(3). In this case, if the police conduct is not deemed improper by operation of s139(3), it would be difficult to see why it would otherwise be improper for the purposes of s138(1).

67 I therefore concluded that there was no basis for the exclusion of the evidence pursuant to the Act, s138.

Criminal Law (Detention and Interrogation) Act 1995

68 Section 5 of this Act provides as follows:

"5 - Rights to an interpreter

(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 or investigation, the police officer conducting the investigation must, before any questioning or investigation under section 4 may commence, arrange for the presence of a competent interpreter and defer the questioning or investigation until the interpreter is present."

"(2) For the purposes of this Act, a person is in custody if he or she is -

(b) under lawful arrest under section 27 of the Criminal Code or a provision of any other Act."

70 Section 27 of the Code contains a provision making it lawful for a police officer to arrest, without warrant, any person whom he believes on reasonable grounds to have committed (inter alia) the crime of rape.

71 Evans J considered the CLDI Act, s5, in R v Butler [2000] TASSC 129. At par[6], his Honour said that the meaning given to the expression "in custody" for the purposes of the section is not as wide as the meaning given to the expression when used in the Judges' Rules. His Honour said that for the purposes of those rules, quoting from R v Amad [1960] VR 545 at 546 - 547, that:

" ... a person is to be regarded as in custody not only after formal arrest, but also where he is ... or on police premises, and the police by their words and conduct have given him reasonable grounds for believing, and caused him to believe, that he would not be allowed to go should he try to do so."

72 However, his Honour went on to consider whether the accused person in the case before him was in custody for the purposes of the Judges' Rules. For my part, in accordance with the interpretation section of the CLDI Act, s5, the question is whether, at the relevant time, the person was under arrest.

73 In R v Lavery (1978) 19 SASR 515, King CJ said at 516 - 517:

"The suspect's liberty is not under restraint simply because the police officer would or might arrest him if he were to exercise his right to depart or to refuse to accompany the police officer. If, however, the circumstances are such as to convey, notwithstanding the use of words of invitation or request, that the suspect has no real choice, his freedom is under restraint ...".

74 Whether or not a person has been arrested is dependent on the circumstances of the particular case. Different procedures might have to be followed with different persons, depending on their age, ethnic origin, knowledge of English, intellectual qualities, or other subjective characteristics; Inwood v R (1973) 57 Cr App R 529 at 536.

75 For the reasons I gave earlier in relation to the requirements of the Act, s139(5), in my view the accused was under arrest at the time of the interview. His movements had been, and were being, controlled by police. If he had made to leave, he would have been formally arrested, and Sgt Manhood accepted the proposition that the accused would reasonably have held the view that he was not free to leave.

76 The Act, s139(3), requires a caution to be given in a language in which the person is able to communicate with reasonable fluency. The CLDI Act, s5, requires the officer conducting the investigation to arrange for the presence of a competent interpreter and to defer the questioning until the interpreter is present, if the person in custody does not have a knowledge of the English language sufficient to enable that person to understand the questions.

77 To my mind, the same reasoning process which applied to s139(3), as explained in R v Taylor [1999] ACTSC 47 should be applied to the obligations on a police officer under the CLDI Act, s5. That is to say, there would only be non-compliance with that section, if the circumstances were such that the officer knew, or ought to have known, that the person in custody did not have a knowledge of the English language sufficient to enable him to understand the questions.

78 For the reasons which I have already given in relation to the Act, s139(3), I concluded that the evidence of the statements of the accused in the interview was not obtained as a consequence of an illegality.

79 There is another ground upon which I so held. On the whole of the evidence, I was not persuaded that the accused's knowledge of the English language was not sufficient to enable him to understand the questions asked.

80 In determining this issue, I had the benefit of several viewings of the recorded interview itself, in addition to the police evidence and all of the evidence of the accused. The record of interview provided a good insight, in that the flow of the questions and answers could be closely followed, as could the behaviour and mannerisms of the accused. I was also able to observe the accused responding to questions, both with and without the aid of the interpreter, in the course of his evidence.

81 In closing submissions, Mr Ayliffe acknowledged that the accused's level of comprehension demonstrated in his cross-examination was less than that shown in the record of interview. I was asked to bear in mind the more formal setting of the Court, as distinct from the room in which the interview was conducted.

82 Both in relation to the accused's evidence in this Court, and as to the circumstances of the interview, and what can be heard and seen on the record of it, I made what I believed to be appropriate allowances.

83 I was mindful of the warnings about acting on the impressions of witnesses, and the greater difficulties created where the witness belongs to some other nationality and is giving evidence either in English as his second or third language, or through an interpreter; see for instance, Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 at 189 - 191, particularly 190 at par[22].

84 However, having made those allowances, and having regard to the whole of the material, I was not persuaded that the accused did not understand the nature of the caution which was given to him, nor that his knowledge of English was insufficient to enable him to understand the questioning.

85 Some of the particular matters which had an impact in this assessment were as follows:

(a) The uncontradicted evidence of Sgt Manhood that he and the accused had a lengthy conversation outside the unit, during which he was able to converse with the accused, to be understood and to understand.

(b) The contradictions as to whether or not the accused asked for a qualified interpreter and whether or not he knew what qualified or professional was, the relevant parts of his evidence as to which I have set out earlier in these reasons at pars[30] - [33].

(c) At the outset of the interview the accused was able to discriminate between relating what he had told the police that morning about what had happened, and relating the events themselves.

(d) In spite of the accused's difficulties with pronunciation, grammar and syntax, the interview reveals relatively prompt and responsive answers. On one occasion, when the accused was asked "roughly" what time K had left his home, he offered to, and did, turn on his mobile phone to check the time at which he had called the taxi.

(e) Notwithstanding his evidence-in-chief, he ultimately agreed that he understood the words "penis", "vagina", "sex", and conceded that many, many of the questions he was asked were short ones which he understood.

(f) There was a complete contradiction from the first cross-examination to the one conducted after he was recalled, as to whether he had made a comment about this being a democratic country, when the police removed the can of beer from him.

(g) I was not able, readily or really at all, to discern from the interview any of the signs of fear which the accused said he exhibited during the interview. Indeed, it should be noted that when, towards the end of the interview he was given an opportunity to explain what really happened, he said he had been telling the truth but asked a question about what time the complainant had been to the police station or the hospital. Four times after this he asked the same question, becoming more insistent and quite assertive on each occasion.

(g) On several occasions when the accused was using the interpreter, he responded directly to things which were said and to which, if his assertions were correct, might have required interpretation. One example which occurred in cross-examination was the following:

"Well, does he dispute, totally dispute the police evidence that he said he wanted to ring a lawyer .........I can't remember.

Right. And did he know a lawyer back in March? .........I can't remember.

_Well, one final - _

HIS HONOUR: Sorry, just there was another part of that answer there. We'd better have that.

ACCUSED: Which March do you mean? Which?

MR JACOBS (Resuming): March, this year ......... [ACCUSED] Yes I had a lawyer this March, this year, yes.

Before March this year? Before since and we're talking about here ......... [ACCUSED] I visited my lawyer but I never used him at the Court."

86 Section 90 enables the Court to refuse to admit evidence of an admission where it is adduced by the prosecution and, having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

87 As I have noted, the suggested unfairness was questioning the accused when he did not understand the caution. In this context also, I think that the issue should relate to the accused's ability to understand the concept underlying the caution, and the function of a caution; R v Deng [2001] NSWCCA 153. Again, as earlier noted, the accused needed to satisfy me that he did not understand the caution, in that sense. For the reasons given, I was not so satisfied.

Admissibility under the Evidence Act, s85

1">88 Reliance was placed on s85(2) which provides that evidence of an admission (made in the course of official questioning) 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. Section 85(3)(a) provides as follows:

"(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."

89 In this case of course the "admissions" are said to be constituted by the denials of the accused of sexual intercourse and any intimate physical contact. The "truth" of the admissions lay in the denials being made from a realisation of guilt. This issue, in the context of the Evidence Act 1995, s85 (NSW), was dealt with in R v Esposito (1998) 105 A Crim R 27. Woods CJ at CL, in considering s85(2), said at 43 that an inquiry would be initiated if a doubt arose as to whether the truth of an admission was adversely affected by reference to the circumstances in which it was made.

90 Such a doubt, his Honour said, might arise for, example, where age, mental or physical condition, intellectual capacity or state of sobriety was such as to impair orientation, comprehension or recollection, and hence the reliability or factual accuracy of anything said.

"The same inquiry is, as a matter of logic, in my view, equally available where the Crown relies on a statement that is untrue, as it did here, as giving rise to an implied admission of guilt. For example, if the evidence was such as to show, or to raise a doubt as to whether a defendant had been suffering from brain damage, intoxication, or amnesia, when interviewed, and as a consequence to have been confabulating, then a doubt might well arise as to whether it was that circumstance that led to the defendant supplying an answer that the Crown could prove was untrue.

If the untruth of the answer is then relied upon as an implied admission of guilt, I see no reason why s 85(2) should not apply. As a matter of ordinary language, the "truth" of the admission may in the circumstances postulated, have been adversely affected."

92 In this case, the circumstance said to impact on the reliability of the admission in that sense, was of course, the lack of understanding on the part of the accused of the questions asked. There is nothing in s85(3) to suggest that it would be only relevant conditions or characteristics of the person known to the police, to which regard should be had. This was the view taken by Higgins J in R v Taylor [1999] ACTSC 47; see also R v Fischetti [2003] ACTSC 9.

93 However, for the reasons I have given, my view was that the accused's understanding of English was not as compromised as he contended. In the end, I was satisfied that it was unlikely that the truth of the admissions, in the relevant sense, was adversely affected by the circumstance of English not being the accused's first language.

94 The ultimate question of fact of whether the admissions were "true" in the sense of being denials made from a realisation of guilt, was one which rested with the jury, as directed in accordance with Edwards v R (1993) 178 CLR 103, and Zoneff v R (2000) 200 CLR 234.

95 For those reasons I ruled that the record of interview was admissible and would not be excluded in the exercise of my discretion.