Citation: R v Saifoloi Afele [2007] NSWDC 345
Court: District Court of New South Wales
Date: 14 November 2007
Judge(s): Nicholson SC DCJ
Background
The accused was charged with aggravated robbery at St Mary's in December 2005, involving the infliction of actual bodily harm on the victim. He was arrested at the scene but released without charge that day because no Samoan interpreter was available. Police arrested him again in March 2006 for the purpose of questioning.
At Blacktown Police Station, a Samoan interpreter was engaged, initially by telephone and later in person. The accused's sister also attended as a support person. An electronically recorded interview was then conducted, during which the accused made admissions.
The proceedings were a special hearing. The defence applied to exclude the record of interview under section 90 of the Evidence Act 1995, arguing that the admissions should not be used against the accused given his intellectual impairment and the circumstances in which the interview was conducted.
Legal Issues
- Whether the record of interview should be excluded under section 90 of the Evidence Act 1995 on the basis that it would be unfair to the accused to admit the evidence
- Whether the accused, who was intellectually impaired and required a Samoan interpreter, had sufficiently understood the caution and his right to silence before making admissions
- Whether the support person requirement under the Law Enforcement (Powers and Responsibilities) Regulations 2005 had been satisfied, and whether any non-compliance affected admissibility
- Whether, if the interview had been obtained improperly or unlawfully, the court should nonetheless exercise its discretion to admit the evidence
Decision
Nicholson SC DCJ found that police had good reason to suspect the accused was experiencing comprehension difficulties beyond mere language barriers, and that his intellectual impairment was evident. The judge rejected the evidence of one detective who maintained that language alone explained the accused's difficulties, finding that police were or ought to have been aware of the accused's intellectual limitations from available records, including prior criminal history entries referencing mental health issues.
Despite initial comprehension difficulties, the court was satisfied that by the time the interview was conducted the accused had come to understand the caution and his right against self-incrimination. The analysis of the interview transcript supported this conclusion: although there were early indicators of confusion, the accused answered questions responsively and demonstrated an understanding of his rights when they were explained again by the interpreter.
On the question of the support person, the court held that the accused's sister qualified under regulation 26(b) of the LEPRA Regulations and that police were required to inform her of her role under regulation 30. The judge was not satisfied that this obligation had been fully met, but proceeded on the assumption that there may have been some impropriety in this regard. Even on that assumption, the court found the admissions were freely and voluntarily given, the interview was reliable, and the accused had understood the questions put to him and the use to which his answers might be put.
Applying the principles in Bunning v Cross and the framework for confessional evidence involving intellectually impaired accused, the court held that the desirability of admitting the record of interview outweighed any undesirability arising from assumed procedural non-compliance. The defence had not established that admitting the evidence would be unfair to the accused.
Orders Made
- The application to exclude the record of interview under section 90 of the Evidence Act 1995 was refused.
Key Takeaways
- The District Court confirmed that an intellectually impaired accused may nonetheless come to understand the terms of a caution during an interview, even after initial comprehension difficulties, and that admissions made in those circumstances can be voluntary and admissible.
- Where police records contain material indicating prior mental health issues or intellectual impairment, that information is relevant to assessing what police knew or ought to have known when conducting a custodial interview.
- Under regulation 26(b) and regulation 30 of the LEPRA Regulations 2005, police are required not only to arrange a support person for an intellectually impaired or non-English-speaking accused, but also to inform that person of their role.
- Assumed procedural non-compliance does not automatically lead to exclusion: where the evidence is reliable, the admissions voluntary, and no actual unfairness is established, the court may conclude that the desirability of admitting the evidence outweighs the undesirability of excluding it, consistent with Bunning v Cross.
- In assessing the admissibility of confessional evidence from a vulnerable accused, the relevant criteria include: the intelligibility of the account given; whether the accused understood the questions; whether responses were appropriate; whether the right to silence was appreciated; and whether answers were freely and voluntarily given.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), section 90 (exclusion of admissions in criminal proceedings where unfair), section 138
- Law Enforcement (Powers and Responsibilities) Regulations 2005 (NSW), regulations 26(b) and 30
Cases
- Brennan, Patrick Donnelly (1997) 96 ACrimR 432
- Bunning v Cross (1978) 141 CLR 54