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District Court 18 April 2007

Regina v Amir Ibrahim El Mostafa

[2007] NSWDC 328

Public order & justice offences
CRIMINAL LAW ADMISSIBILITY OF EVIDENCE ERISP TRANSLATOR USED DURING ERISP MENTAL ILLNESS

Citation: Regina v Amir Ibrahim El Mostafa [2007] NSWDC 328
Court: District Court of New South Wales
Date: 18 April 2007
Judge(s): Cogswell SC DCJ

Background

The accused was interviewed by police on 29 July 2005 under an Electronically Recorded Interview with a Suspected Person (ERISP), conducted with the assistance of a translator. The accused had a diagnosed mental illness, for which he was prescribed medication for depression and schizophrenia, and he did not receive that medication before or during the interview.

Before the interview commenced, the accused made clear he wanted a lawyer present. He ultimately spoke briefly with a legal representative by telephone, who advised him not to answer questions until a lawyer arrived in person. During the interview, the accused repeatedly indicated he did not wish to answer questions about the allegations against him.

A significant issue arose around questions 18 to 22 of the ERISP, during which police asked the accused about his nickname "Abu Fajr." The police had told the accused the preliminary questions were merely formal, but the nickname question was substantive in nature: identifying the accused by that name was important to the investigation and capable of constituting an admission.

  • Whether the entire ERISP, or parts of it, should be excluded under section 85 of the Evidence Act 1995 on the basis that the circumstances made it unlikely the answers were reliable
  • Whether the ERISP should be excluded under section 90, which allows exclusion of admissions where it would be unfair to use them against a defendant
  • Whether the conduct of the interview gave rise to an impropriety under section 139, in particular whether the use of a translator triggered a deemed breach of caution requirements
  • Whether the ERISP, or parts of it, should be excluded under section 138, which provides for exclusion of improperly or illegally obtained evidence where the desirability of admitting the evidence is outweighed by the undesirability of how it was obtained

Decision

The court rejected the application to exclude the whole ERISP under section 85. It was not persuaded that the circumstances of the interview rendered the accused's answers generally unreliable. Similarly, the application under section 90 for exclusion of the whole ERISP on unfairness grounds was rejected, as was the argument that the use of a translator created a deemed impropriety under section 139.

On the section 138 application, the court found that the questioning about the accused's nickname (questions and answers 18 to 22) had been obtained improperly. Police had reassured the accused that the preliminary questions would be purely formal and that he would not be asked about the allegations. The questions about the nickname "Abu Fajr" crossed from formal into substantive territory and were capable of lulling the accused into a false sense of security.

The court acknowledged the significant probative value of the nickname evidence, given its importance to establishing the accused's identity. However, it concluded that the desirability of admitting that portion of the interview did not outweigh the undesirability of admitting evidence obtained in that manner. The impropriety was not characterised as grave, partly because the court was not satisfied the interviewing police knew about the accused's mental illness at the relevant time.

The remainder of the ERISP was ruled admissible. Only questions and answers 18 to 22 were excluded under section 138.

Orders Made

  • The application to exclude the whole ERISP under sections 85, 90, and 138 was rejected
  • The application based on a deemed impropriety arising from the use of a translator under section 139 was rejected
  • Questions and answers 18 to 22 of the ERISP were excluded under section 138 of the Evidence Act 1995
  • The remainder of the ERISP was ruled admissible

Key Takeaways

  • The District Court confirmed that an accused's mental illness does not automatically render an ERISP inadmissible under section 85, particularly where police were not demonstrated to have known about the mental health condition at the relevant time.
  • Under section 138, the balancing exercise between the probative value of improperly obtained evidence and the undesirability of its admission can result in partial exclusion: the court excluded only the specific questions and answers tainted by the impropriety, leaving the rest of the ERISP intact.
  • Where police reassure a suspect that questions are merely formal and preliminary, subsequent questions that are substantive in nature may be found to have created a false sense of security, contributing to a finding of impropriety.
  • A suspect's repeated requests for legal representation during an ERISP do not, on their own, render the entire interview inadmissible, but they form part of the factual context assessed in the section 138 balancing exercise.
  • Use of a translator during an ERISP does not, without more, give rise to a deemed impropriety under section 139 of the Evidence Act 1995.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), sections 85, 90, 138, 139

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