Discuss About The Complainants And Court Process In Australia?

Positive aspect of the case

Discuss About The Complainants And Court Process In Australia?

In The Queen v BL [2015], the accused BL is alleged to have committed sexual intercourse without the complainant AX without her consent. He is said to have violated section 192(3) of the Criminal Code[1]. He is further charged for violating section 192(4) of the Criminal Code on the ground of gross indecency with AX without her consent. The accused pleaded for excluding a recorded conversation that the investigation officer conducted with BL on 9 January 2015[2].

The accused BL claimed that he refused to make certain admissions in the first interview and participated in a second interview that was held on 9 January 2015 with respect to the alleged offence. His grandfather GR accompanied with him as a support person on 18 November 2014 during the first interview conducted by the investigating officer. The Counsel for the Crown contended that the circumstances in which the accused made admissions does not intend to establish the fact that such admission was adversely affected. It implies that the several issues advanced by the accused do not suffice the justification to exclude the recorded interview under section 85 of the Evidence (National Uniform Legislation) Act.

 When BL was prepared to open up about, the incident complained against him, GR accompanied him to the police station as a support person on 18 November 2014 and Officer Steve Hancock conducted an investigation. GR being the support person provided evidence of the fact that he has encouraged BL to speak the truth with a view to clear any form of misunderstandings. As was observed in Phung & Huynh [2001], the role of a support person has been explicitly explained[3]. The support person plays a significant role in ensuring that the accused person is not being subject to any oppressive or unfair behavior. A support person usually accompanies a child, especially, who is immature, timid or inexperience with respect to the law enforcement matters and requires advice.

In the given case, the accused, BL had his grandfather GR as his support person during his first interview that was conducted on 18 November. At the time of commission of the offense, BL was only 17 year and was inexperience in matters relating to lawful enforcement. Hence, he was entitled to nominate a support person during the interview.

When the accused, BL, refused to speak to any female officer, on the second interview, which was held on 9 January, a male officer named, Officer Dwyer, informed BL that he would be required to participate in an interview on 9 January 2015. In Phung’s case, an accused has a right to be informed about the subject matter regarding which he /she is being subject to questions and such questions must be conveyed to the accused in the language spoken or understood by the accused. GR was capable of speaking Tiwi and during the interview session held on 18 November, he had reformulated the questions in a language that was comprehensible by BL. According to section 128 of Law Enforcement Powers and Responsibilities, an accused is entitled to the right to obtain the services of an interpreter.

Negative aspect of the case

During the interview, conducted on 18 November 2014, Officer Adams discussed with BL whether he needed an interpreter and GR, the support person for the accused, opined that the accused does not require any interpreter. Officer Adams further noticed that the accused was speaking in English with GR, which made the officer believe that BL did not require any interpreter as he was conversing very well. Moreover, BL’s auntie EW has testified that they usually speak English and aboriginal English in their house and since the accused used to reside with them, it is obvious that the accused was capable of understanding English. Furthermore, his auntie contended that the accused attended Kormilda College, which re-establishes the fact the accused was capable of comprehending English language and was not in need of an interpreter.

As per section 13 of the Children (criminal Proceedings) Act 1987 (NSW) any statement, information, confession and admission given or made to a police officer by a child who is a party to the criminal proceedings shall not be admitted as evidence in the criminal proceedings[4]. In the given case, it can be perceived that the police officers have complied with legislations with respect to the admissions made by the accused BL and that the circumstances in which the accused made admissions does not establishes the fact that such admission was adversely affected.

A support person cannot play its role unless the support person himself is not acquainted with the English language. In the given case, GR acted as BL’s support person during his first interview that was conducted on 18 November, but the interview conducted by the investigating officers on 9 January 2015, did not involve a support person for the accused BL[5].

Here, BL’s aunt EW acted as his support person for the interview conducted on 9 January. According to section 128 of the LEPRA, BL was entitled to an interpreter as he was unable to speak English fluently and his support person GR did not speak fluent English either[6]. In regards to the second interview, the BL should have been provided with an interpreter, as he did not have GR who was capable of comprehending the communication mode of BL.

The accused person contended that belonging to the aboriginal group, when the interview was being conducted and he was unable to speak in English. Hence, he was entitled to an interpreter but the state did not provide him with an interpreter and the police caution that should have taken place before the commencement of the interview, was made after the interview[7]. The accused person was not informed about the allegations that were made against him. Further, he was not even provided with an appropriate support person for the interview conducted on 9 January, as GR who was an appropriate support person for the accused person was not even aware of his arrest, hence, the EW was appointed as a support person for BL in the second interview.

Critical analysis of the case

Furthermore, several substantial responses were assumed by significant leading questions relevant to the offence charged. There were issues with respect to the matters pertinent to the Anunga Guidelines and Police General Orders such as whether the accused person was able to comprehend the caution contemplated by the police officers. It also includes issues related to the fact whether the accused person was able to understand the allegations that were made against him and the leading questions that were made during the recording of the interview.

The accused person, BL was reluctant to speak with any female officer about the charged offenses because of which Officer Adams asked Officer Dwyer to speak with BL during the interview[8]. However, BL was provided with a list of person who could accompany him as a support person as GR was becoming more of a witness than a support person. BS was selected as a support person from the Red Cross who was a female when BL persisted to talk with a female officer. Further, BS spoke only English, she did not belong to aboriginal background, and the concern regarding participation of female officers was not evident while selecting BS as support person.

The way BL was speaking conversing in English with BS was not considered as a standard form of English by the court. His conversing manner signifies that BL was a partial English-speaking person. GR also contended before the court that with BL he and his wife mostly spoke Aboriginal English with considerable amount of Tiwi language with it. During the interview held on 18 November, when the accused person was asked whether he requited a interpreter, both GR and Officer Adams stated that there is no need to appoint an interpreter from BL as BL was capable of understanding English owing to the fact that he was speaking in English with GR. Given that GR was an appropriate support person for the accused person as he could comprehend his communication mode, it was acceptable that an interpreter was not appointed during the interview held on 18 November.

However, with respect to the second interview that was conducted on 9 January, the support person appointed for the accused person was BS who only spoke English, hence, it was necessary to appoint an interpreter for BL[9]. Further, Officer Adams asserted that she did not appoint an interpreter for BL in the second interview mainly because GR said so during the first interview held on 18 November 2015. The police officer did not even ask the accused person about his first language and emphasized on the fact that since the accused person had attended Komilda College, he is capable of understanding and speaking English. EW, auntie of the accused person also agreed that aboriginal English was spoken in her house and was usually spoken with the accused person as well.

Officer Dwyer did not ask the accused person either about his first language and stated that he and the accused both understood each other without misunderstanding. It can be argued here that the recordings of the interview indicate the discussion with BL about the appointment of interpreter, lacked clarity. In the first interview, GR stated no interpreter was required as he understood the communication mode of BL. However, with respect to the second interview, in the absence of GR as support person, it is apparent that there was high probability of miscommunication as the support person only spoke English and the first language of the accused person was Tiwi. Under such circumstances, the reliability of the admissions made by the accused person was adversely affected.

Further, while the second interview was being held on 9 January, BL was neither arrested nor was he under custody, he was merely in the police station. On being questioned whether BL required an interpreter, his response long silence and monosyllabic answers. Such responses in an interview were not reliable. The police caution which states that the statements made by the accused person during the interview may be used against him as evidence and that he has a right to remain silent and not answer any questions asked by the investigating officer, must be made to the person in custody before the commencement of the interview[10]. However, in this case, the police officers did not mention about the police cautions to the accused person before conducting the interview.

The responses given by the accused person, BL, indicate the fact that he did not have command over the English language, which implies that the court cannot rely on the interview conducted. In this context the circumstances under which the admissions made by the accused person, BL, were such that there is a high probability that the truth of the admissions made by the accused person were affected adversely. The reliability of the conversation during the second interview reduces owing to the failure of the state to appoint an interpreter for the accused person. The fact that the accused person speaks broken English is not sufficient evidence to establish that the interview with the police officers was completely reliable.

In the given case, the court was of the opinion that Officer Dwyer did not ask BL about his first language otherwise Tiwi language interpreter could have been appointed for BL. The investigating officers emphasized on the fact that BL was a student of Kormilda College; hence, he was capable of comprehending and speaking English. Moreover, the Anunga Guidelines required the investigating officer to ensure that the caution is explained in the language spoken and understood by the accused person and such person is capable of participating in the conversation without an interpreter[11]. It implies high probability of miscommunication during the recorded conversation with the accused person. At the time of commencement of the interview, BL did not want to talk to the police officers, which indicated a gesture that he did not wish to participate in the interview.

Further, during the interview held on 9 January, BL was unaware of the fact he was being investigated for committing a sexual offense against the child made him think that he providing information as a witness. Further, section 140 Police Administration Act procedures are conducted on post-arrest but BL was not arrested, hence it was not applicable to interview conducted prior to the arrest. Thus, although the admissions have significant probative value with respect to the offences charged, the interview held on 9 January are not reliable, hence, should be excluded under section 90 of the (Evidence National Uniform Legislation Act)[12].

Conclusion

The communication issues faced by the participants arise when the English speakers are incapable of speaking fluent English that is used in the legal system. The problem enhances, especially for those participants who belong to the aboriginal group and speaks Aboriginal English like the accused person, BL, in the given case. In case, any person who is inexperienced in law enforcement matters must be accompanied with a support person while he is interviewed. The support person must be someone who is capable of understanding the language spoken by the accused. The accused must be informed about the reason for which he is being interviewed and be informed of the police cautions before the commencement of the interview.

Thus, such persons should be explained in the language they comprehend and are comfortable to speak and express their contentions, therefore, addressing the issues related to communication within the justice legal system.

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The Queen v BL [2015] NTSC 85