SUPREME COURT OF QUEENSLAND

Transcription

1 SUPREME COURT OF QUEENSLAND CITATION: R v Watt [2007] QCA 286 PARTIES: R v WATT, Gregory Thomas (appellant) FILE NO: CA No 122 of 2007 DC No 211 of 2007 DIVISION: PROCEEDING: ORIGINATING COURT: Court of Appeal Appeal against Conviction District Court at Cairns DELIVERED ON: 7 September 2007 DELIVERED AT: Brisbane HEARING DATE: 27 August 2007 JUDGES: ORDER: CATCHWORDS: McMurdo P, Wilson J and Philippides J Separate reasons for judgment of each member of the Court, each agreeing as to the orders made 1. Appeal allowed 2. Set aside the convictions on counts 3 and 4 3. Enter verdicts of acquittal on counts 3 and 4 CRIMINAL LAW APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION APPEAL AND NEW TRIAL PARTICULAR GROUNDS UNREASONABLE OR INSUPPORTABLE VERDICT WHERE APPEAL ALLOWED where the complainant, an Aboriginal Australian, gave evidence with the aid of an interpreter where cultural and linguistic issues affected her evidence where her evidence was vague and inconsistent where the Crown case depended on the jury accepting the complainant s evidence whether the verdicts were unsafe and unsatisfactory CRIMINAL LAW APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION APPEAL AND NEW TRIAL PARTICULAR GROUNDS UNREASONABLE OR INSUPPORTABLE VERDICT WHERE APPEAL ALLOWED where the appellant was charged with three counts of rape and one count of deprivation of liberty where the appellant was acquitted of two counts of rape and convicted on the other counts whether the verdicts were

2 2 COUNSEL: SOLICITORS: inconsistent on the evidence CRIMINAL LAW APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION APPEAL AND NEW TRIAL PARTICULAR GROUNDS MISDIRECTION AND NON-DIRECTION WHERE GROUNDS FOR INTERFERENCE WITH VERDICT PARTICULAR CASES WHERE APPEAL ALLOWED where the trial judge incorrectly summarised an aspect of the evidence where the jury may have been misled as to the relevant issues whether the error justified setting aside the conviction Criminal Code 1899 (Qld), s 24 Oaths Act 1867 (Qld), s 29 Daniel v R (1989) 1 WAR 435, cited MacKenzie v The Queen (1996) 190 CLR 348, cited MFA v The Queen (2002) 213 CLR 606, cited R v Imrie (1917) 12 Cr App R 282, cited R v Mrzljak [2004] QCA 420; [2005] 1 Qd R 308, cited C W Heaton for the appellant M J Copley for the respondent Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent [1] McMURDO P: I agree with Wilson J s reasons for allowing the appeal, setting aside the convictions on counts 3 and 4 and instead directing that verdicts of acquittal be entered on those counts. [2] Counsel for the respondent submitted that the verdicts of guilty on counts 3 and 4 can rationally stand with the verdicts of not guilty on counts 1 and 2 because of the primary judge s erroneous direction, excessively favourable to the appellant, that under s 24 Criminal Code 1899 (Qld) the appellant's intoxication was something they could take into account in determining whether he may have honestly and reasonably believed the complainant was consenting to intercourse. There was evidence that the appellant was drunk at the time of counts 1 and 2 but the jury may have inferred that, by the time of the third count of alleged rape the next morning, the appellant was sober. That argument would provide some comfort for the respondent but for count 4 (deprivation of liberty) being particularised as occurring over several hours from when the complainant was first apprehended by the appellant in the evening of 20 July until mid-morning the next day when she was found by police on the second visit to the house. As count 4 was a continuing offence occurring over a lengthy period, including when the evidence was that the appellant was drunk, the guilty verdict on count 4 cannot be reconciled with the verdicts of acquittal on counts 1 and 2 in the way suggested. It follows that the guilty verdicts are unsafe and unsatisfactory: MacKenzie v The Queen. 1 [3] Justice Wilson in her reasons has thoughtfully highlighted some concerning aspects of this trial flowing from the use of the interpreter of the Australian Aboriginal 1 (1996) 190 CLR 348.

3 3 language, Wik-Mungkan, in the taking of the Indigenous complainant s evidence. I entirely endorse her Honour's observations. According to the Criminal Justice Commission s Aboriginal Witnesses in Queenslan 's Criminal Courts 2 report Wik- Mungkan is the most widely spoken traditional Aboriginal language in Queensland with about 1,000 speakers in It is the language from the area of Aurukun and the Archer River in North Queensland. 3 In addition to being a non-english speaker, the complainant had a hearing impairment: an estimated 40 per cent of the Aboriginal community suffers hearing loss. 4 The application of the rule of law in Queensland depends not only on the right of an accused person to a fair trial according to law but also on victims of alleged crimes having a genuine opportunity to make a complaint and to give evidence about it. Our community has an obligation to do everything practicable to ensure that even complainants who do not speak English or who have other disabilities have this basic access to the criminal justice system. This obligation is certainly not lessened in respect of Indigenous complainants. The transcript of the proceedings in this trial suggests that, despite the learned trial judge s best endeavours, the complainant may not have been given a full opportunity to give her version of events in the trial. Whether or not that is so, the jury's inconsistent verdicts and the unsatisfactory state of the complainant's evidence as interpreted mean that the appellant must be acquitted because the prosecution did not establish his guilt beyond reasonable doubt. [4] WILSON J: On 25 May 2007 the appellant was convicted by a jury of one count of rape and one count of deprivation of liberty (counts 3 and 4 respectively on the indictment). He was sentenced to 8 years imprisonment for the rape and 2 years imprisonment for the deprivation of liberty, to be served concurrently, with a declaration that 645 days pre-sentence custody be deemed time already served and a parole eligibility date of 20 July He appeals against his convictions. [5] At the commencement of the appeal counsel for the appellant sought and obtained leave to amend the notice of appeal. As amended, the grounds of appeal are 1. The jury verdict is unsafe and unsatisfactory in all the circumstances. 2. The appellant has suffered a miscarriage of justice as a result of the learned trial Judge s misstatement of the appellant s evidence relating to the evidence [sic] on count 3. Context [6] The charges arose out of events in an indigenous community in Cape York Peninsula on the night of 20 July 2005 and the next morning. [7] The appellant and the complainant had formerly been boyfriend and girlfriend, living together for a year or more. 5 Their relationship broke up in February [8] The day before the events in question the appellant learnt that his sister who lived on Mornington Island had died. He could not go to the funeral. On the afternoon of Brisbane, Goprint, June 1996 at 15; Supreme Court of Queensland Equal Treatment Benchbook, Macquarie Dictionary. Aboriginal Witnesses in Queensland's Criminal Courts, Brisbane, Goprint, June 1996 at 29; Supreme Court of Queensland Equal Treatment Benchbook, 9.9. Transcript of the trial, pp 55, 119.

4 4 20 July he went to the local pub to drown his sorrows. When the pub closed at 7.00 pm he went to his grandmother s house. He was drunk, and sat on the veranda, apparently drinking more. He went into the house, picked up the broomstick and started smashing lights. He left the house, and someone called the police who started looking for him. 6 As he walked along a local street he met up with the complainant and two other women LA and ST (one of them a relative of the complainant). The appellant was charged with 4 offences allegedly committed over a period of several hours between then and the next morning. The charges [9] The defendant was charged with 3 counts of rape of the complainant and with depriving her of her liberty. In his opening address to the jury the prosecutor particularised the charges as follows: Count 1 that on or about the twentieth day of July 2005 at [name of community] [the appellant] raped [the complainant] Particularised as occurring on a dirt road (and subsequently referred to as occurring at the Tower) Count 2 that on or about the twenty-first 7 day of July 2005 at [name of community] [the appellant] raped [the complainant] Particularised as occurring in the school grounds Count 3 that on the twenty-first day of July 2005 at [name of community] [the appellant] raped [the complainant] Particularised as occurring in a house the next morning, after a visit by police Count 4 that between the nineteenth day of July 2005 and the twenty-second day of July 2005 at [name of community] [the appellant] unlawfully deprived [the complainant] of her personal liberty Particularised as occurring over several hours from when the complainant was first apprehended by the appellant in the evening of 20 July until mid-morning the next day when she was found by police (on a second visit to the house). Verdicts [10] The appellant was found not guilty on counts 1 and 2, and guilty on counts 3 and 4. [11] Counsel for the appellant submitted that the complainant s evidence was unreliable, lacking in adequate detail and at times internally inconsistent and contradicted by other evidence to the point where there is a significant risk that an innocent person has been convicted. He submitted further (a) that the verdicts on counts 3 and 4 were inconsistent with the acquittals on counts 1 and 2; and 6 7 Transcript of the trial, pp The trial proceeded on the basis that this count occurred on the same day as count 1.

5 5 (b) that the verdict on count 4 was inconsistent with the acquittals on counts 1 and 2. Admissions [12] The appellant admitted (a) (b) that on the night of the 20 th to the morning of the 21 st of July 2005 he had sexual intercourse with the complainant on three occasions; 8 that on 21 July 2005 the complainant had 2 x 6 cm long recent scratches to her back; 9 (c) that on 21 July 2005 vulvar swabs were taken from the complainant; on analysis they contained DNA material that matched that of the appellant. 10 The evidence [13] The complainant gave evidence that on the night of 20 July 2005 the appellant approached her in the street where she was walking with her friends LA and ST. He came up to her, grabbed her by the shirt and pulled her by the shirt, gripping her tightly and pulling her down the road. He hit her and slapped her. She called out for help. She told him to leave her as she was going to ST s house, but he did not let her go. He pulled her by the shirt to the disco hall and into the bushes. ST called out her name, but the appellant put his finger across his lips indicating to her to keep quiet. She said he told her they would go to the Tower (a Telstra tower) for sex. She said that he would not let her go and that he took her to the Tower. She said she told him she wanted to go to her aunty s house where she was staying, 11 but that he told her instead that they would go to the Tower for sex. [14] The appellant gave evidence that he met up with the complainant in the street and asked her to stay with him the night at his sister s house. He said that she agreed. According to him, she said she was going to speak to LA and ST, but he said he did not have time for that, and so he put his arm around her shoulder and they walked off down the street together. [15] The complainant s evidence of what happened in the street was generally supported by that of LA and ST. [16] On the complainant s evidence the first occasion they had sex was at the Tower. The following occurred in her evidence in chief Now, when you got to the Tower, what happened there? He want more sex, he said to me. And what did he do, or what happened at the Tower? He said to have sex again. She said, [The appellant] forced me for sex. She said he pulled her clothes down despite her saying No, and that he forced her to the ground where they had sex despite her saying No Transcript of the trial, p 27. Transcript of the trial, p 116. Transcript of the trial, p 116. ST is her aunty. Transcript of the trial, p 36.

6 6 [17] On the appellant s evidence they had intercourse at the Tower consensually. Moreover that was the second occasion on which they had intercourse that night. He said that they had first gone to an empty house where they had had intercourse consensually. [18] The complainant was questioned about the empty house incident, and counsel for the appellant submitted that her responses showed her general unreliability. She seemed to accept that they went into the empty house before the Tower and seemed to accept that they had intercourse there, but that it was against her will. When further cross-examined about her evidence on a previous occasion when she had denied going into the empty house with the appellant, she denied going into the empty house and denied earlier saying that she had. She then denied that she and the appellant had had sex at the Tower. 13 [19] The complainant said that after the Tower the appellant took her to the school. He forced her to go inside the school grounds. He found the leg of a sprinkler (apparently a metal bar) and threatened her with it. He forced her to have sex under B Block despite her protestations. She said she was on a stool at the time. [20] The appellant denied that they had sex at the school. He said they had been sitting under B Block for about half an hour when he heard a dog barking. He told the complainant to walk to the fence. He saw a sprinkler and broke one of its legs to protect him and the complainant if the dog attacked. They jumped over the fence and saw a torch shining. Then they made their way to his sister s house. [21] The complainant s evidence was that she did not want to go to his sister s house, but rather to her aunty s. However, the appellant forced her to go to his sister s, all the time holding on to her shirt. She said he still had the piece of metal he had had at the school. He took her into the first room and once more they had sex, against her wishes. 14 According to the appellant they had consensual intercourse in a bedroom at the house; then they both went to sleep. [22] About 8:20 am the next day police arrived at the appellant s sister s house after one of the complainant s relatives had gone to the police station. His sister would not let them in. The police officers left. The appellant and the complainant had a cup of tea and something to eat; according to the appellant s nephew who saw them eating, they were friendly to each other. [23] According to the appellant they went back into the bedroom and back to sleep. But according to the complainant, after the police had gone, the appellant once again forced her to have sex against her wishes. 15 [24] Some time later police returned to the house. They looked in 2 rooms, and then the complainant emerged from the toilet. (The toilet door had been locked, from the inside.) They had the owner of the house unlock the bedroom: when the door was opened, the appellant was inside looking out of the window. The complainant accompanied them to the police station. When police returned to the house later in the day, they found the sprinkler bar in the bedroom Transcript of the trial, pp Transcript of the trial, p 48. Transcript of the trial, pp 49,

7 7 [25] The complainant s evidence was that they had intercourse on 4 occasions, each time without her consent at the Tower, at the school, at the appellant s sister s house in the evening and at the house the next morning. The first, second and fourth of these incidents are the subject of counts 1, 2 and 3. The appellant s evidence was that they had intercourse consensually on 3 occasions at the empty house, at the Tower, and at his sister s house in the evening. The complainant s reliability [26] Counsel for the appellant submitted that the complainant s evidence was generally unreliable and vague. He gave a number of examples, including (a) the evidence to which I have already referred about whether they had intercourse in the empty house; (b) her evidence about intercourse at the Tower: the transcript records MR SHERIDAN: Okay. You and [the appellant] went to the tower? INTERPRETER: She wants to go from the start of the story. WITNESS: What are we saying about the tower? And who took me? MR SHERIDAN: Okay. Did you have sex with [the appellant] at the tower?-- No. Did you go to the tower with [the appellant]? INTERPRETER: She's saying, What? MR SHERIDAN: Did you and [the appellant] walk to the tower together? HER HONOUR: Do you think she understands the timeframe, [interpreter]? INTERPRETER: I'm not sure what the I think we re back with the problem we had with the first questions. HER HONOUR: Yes, all right. INTERPRETER: That s why she s not answering. HER HONOUR: Yes. MR SHERIDAN: Just trying to mirror where she s describing her examination-in-chief about the incidence at the tower and----- HER HONOUR: Well, that can you move from the point of view that she's given that evidence and just put to her where your instructions differ? It's probably time adjourn for lunch now anyway Transcript of the trial, pp

8 8 After lunch the evidence continued HER HONOUR: Can you frame it as a question? MR SHERIDAN: Okay. Did you and [the appellant] sit down at the tower?-- He, he said to have sex. Did [the appellant] ask you to have sex with him?-- I'm saying honestly that he raped me. 17 This evidence appears contradictory. The explanation may lie in the difficulties faced by the interpreter, as well as in the failure of defence counsel to tease out possible issues of consent. At any rate the jury was left with internally inconsistent evidence; (c) (d) (e) her evidence about when they had intercourse at the appellant s sister s house: in his opening the prosecutor particularized count 3 as occurring the morning after they arrived at the house, but in her evidence the complainant spoke of non-consensual sex both soon after they arrived at the house and the next morning; 18 inconsistencies between her evidence and that of ST: she spoke of ST yelling out to her after the appellant had taken her down the street, 19 but ST did not say this, instead giving other evidence of his frogmarching her down the street; 20 that what she meant by sex was never explained. This is a non-issue. The prosecutor made it clear in his opening that the charges related to penile penetration of the complainant s vagina; the trial was not conducted on any other basis, and the vulvar swabs contained DNA matching that of the appellant. Inconsistent verdicts? [27] There is force in counsel for the appellant s submission that there was no difference in quality between the complainant s evidence on counts 1 and 2 and her evidence on counts 3 and 4. He submitted that a jury could not reasonably have returned a different verdict in relation to counts 1 and 2 on the one hand and count 3 on the other hand. Further, he submitted, the acquittals on counts 1 and 2 were inconsistent with the finding that the complainant was deprived of her liberty at the time of the events in counts 1 and 2, so that the acquittals undermined the conviction on count 4 as well. [28] Counsel for the respondent submitted that there was no inconsistency between the verdicts on counts 1 and 2 and those on counts 3 and 4. He submitted that it was open to the jury to find as a fact that she was deprived of her liberty but to have a doubt as to whether she was consenting to intercourse. First, she might have grudgingly consented to the intercourse in the hope of regaining her liberty. With respect, this is a specious line of reasoning. Secondly the jury may not have been Transcript of the trial, p 68. Transcript of the trial, pp 48-49; Transcript of the trial, p 34. Transcript of the trial, pp

9 9 satisfied that the prosecution had excluded the possibility that the appellant honestly and reasonably, but mistakenly, thought the complainant was consenting to intercourse. According to the appellant he was intoxicated on the evening of 20 July The trial judge directed the jury on s 24 of the Criminal Code, leaving it open to them to have regard to the fact that he d been drinking in determining whether he believed she was consenting. 21 That direction was erroneous: the appellant s intoxication was probably relevant to the honesty of any mistake, but not to whether the mistake was reasonable. 22 The error was one that favoured the appellant. Counsel for the respondent submitted that the jury might have thought the appellant s intoxication led him mistakenly to think that the complainant was consenting to intercourse on the occasions in counts 1 and 2, but that by the next morning he would have regained his sobriety and he could not then have made such a mistake. However, as counsel for the appellant submitted, while the appellant said he had been drinking before he caught up with the complainant, he did not suggest that alcohol had a role to play in his ability to control his actions or his conduct or in his ability to recall events, and the complainant did not refer to the fact that he appeared to be drunk. In short intoxication does not afford a rational basis for reconciling the verdicts. Deprivation of liberty [29] The deprivation of liberty charge was particularised as relating to the whole period from when the appellant caught up with the complainant in the street in the evening until she went with the police the next morning after their second visit to the house. However (a) (b) (c) they slept together at the house that night; the next morning they appeared happy in each other s company according to the appellant s nephew; and when police arrived the second time the complainant emerged unrestrained from the toilet. As counsel for the appellant submitted, these facts are inconsistent with the complainant s being deprived of her liberty over the entire period. It was not open to the jury to be satisfied beyond reasonable doubt of the appellant s guilt in relation to count That verdict should be set aside. Trial judge s misstatement of evidence re count 3 [30] In his opening the prosecutor particularised the third count as having taken place on the morning of 21 July The complainant s evidence seemed to be that intercourse occurred twice at the house once in the evening and again the next morning on both occasions without her consent. The appellant s evidence was that they had consensual intercourse in the evening; he did not give any evidence of sexual activity the next morning. 24 [31] In her summing up the trial judge said Transcript of the trial, p 211, lines 1 5, R v Mrzljak [2005] 1 Qd R 308, 315, 326; Daniel v R (1989) 1 WAR 435, 445. MFA v The Queen (2002) 213 CLR 606, , 624. Transcript of the trial, pp 48-49,

10 10 He said that when they got to his sister s place he was no longer holding he was not holding onto her, that he spoke to his sister and that [the complainant] was a couple of metres away from him in the house when he was speaking to his sister, that the next morning he got up and had breakfast, went back in the bedroom, they had sex together and he went to sleep and when he woke up [the complainant] was no longer there and that s when the police arrived. 25 What Her Honour said was not in accordance with the evidence, and as counsel for the appellant submitted, the jury may have been misled into thinking that the only issue on count 3 was that of consent. There is a real possibility that the jury would not have convicted on count 3 had they been properly directed as to the state of the evidence in relation to it. That error on its own would warrant setting aside the conviction on count 3. Cultural and language issues [32] Both the appellant and the complainant are indigenous Australians who live in a remote community. The trial took place in the District Court in Cairns. It is all but impossible to gain any real appreciation of how cultural factors may have impacted on their respective presentations to the jury from the written transcript of the trial. It is intrinsically a flat and colourless record of words spoken during the trial. [33] The appellant understood and spoke English, as well as Wik Mungkan. His counsel did not contend that he was at any cultural or linguistic disadvantage, and this Court has to proceed on the basis that he was not. [34] The complainant s language is Wik Mungkan; she does not speak English. She gave her evidence through an interpreter and counsel for the appellant criticised the quality of the interpreting and some of the procedures adopted. I shall turn to these criticisms in a moment. The complainant also had a hearing impediment. 26 [35] Needless to say, in such circumstances it is essential to the proper conduct of a criminal trial that the interpreter accurately relate the questions to the complainant and accurately relate the complainant s responses to the Court. The responsibility cast on the interpreter is particularly onerous: this is reflected in the interpreter s oath NON-ENGLISH SPEAKING WITNESS You swear that you understand the language of the witness and are able to interpret between the witness and the court and jury and the prisoner and all persons conversant with the English language. You shall well and truly interpret and true explanation make between the witness the court and jury and the prisoner and all persons conversant with the English language and the evidence which you shall give to the court and jury sworn between our Sovereign Lady Transcript of the trial, p 209. Transcript of the trial, p 11.

11 11 the Queen and the prisoner at the bar shall be the truth the whole truth and nothing but the truth. So help you God. 27 [36] As a matter of practice, those who act as interpreters in our Courts usually have an accreditation by NAATI (the National Accreditation Authority for Translators and Interpreters). NAATI has several different accreditation levels, and as the trial judge observed, 28 what used to be called Level III 29 is that generally considered appropriate for Court interpreters. [37] Regrettably there are no Wik Mungkan language interpreters accredited by NAATI to that level a matter which, according to the trial judge, the District Court has raised with the Government for the last 6 years. 30 The unavailability of a person with that level of interpreting skill made the conduct of the trial problematic, and called for some flexibility on the part of all concerned. But ultimately, as counsel for the appellant submitted, trial procedures could not be relaxed to the point where the appellant was prejudiced. 31 [38] The interpreter employed in this case holds a Master s degree in Linguistics, having studied applied linguistics language development, child language, and issues in language and culture at the Master s degree level. 32 According to the appellant s trial counsel, one of the difficulties she had as interpreter was that the younger generation in the indigenous community do not speak the rich Wik Mungkan language she knows they borrow English which they use with Wik Mungkan. During the trial the appellant raised issues about the quality of the interpreting with his solicitor. 33 [39] Before this Court the appellant s counsel 34 adverted to the intervention of the interpreter in giving evidence of cultural matters, such as the way the complainant was giving evidence. For example, the following occurred in the cross-examination of the complainant MR SHERIDAN: [the complainant], in 2003 you were the girlfriend of [the appellant]? HER HONOUR: Can you frame it as a question? MR SHERIDAN: Were you the girlfriend of [the appellant] in 2003?-- No. Were you the girlfriend of [the appellant] in 2004?-- No. Do you know Eleanor Woolla?-- No Oaths Act 1867 (Qld) s 29. Transcript of the trial, p 52. now called the Interpreter/Translator level. Transcript of the trial, p 52. See R v Imrie (1917) 12 Cr App R 282. In that case a deaf complainant, incapable of intelligible speech, gave evidence through an interpreter. The manner of interpretation was unsatisfactory, and rendered the witness incapable of being properly cross-examined. The conviction was quashed. Transcript of the trial, p 52. Transcript of the trial, p who was not his trial counsel.

12 12 Did you live in a house with [the appellant] in 2003 and 2004? Didn t live with him. In July of 2005 were you living with [the appellant], again, as your girlfriend as his girlfriend?-- No. Do you know Akay Koo oila?-- No, I didn't go with him. Okay. But does she know a person called Akay Koo oila? INTERPRETER: Well, she said no. Can I, I your Honour----- HER HONOUR: Certainly. INTERPRETER:---may I raise an issue, which I ve tried to get clarified before, is that this is a cultural background thing that you speak yes to the person who is for you and no to the person who is against you, regardless of what is involved, and I don t know I ve tried to explain that you re doing it answering the question, you re not it s not something to the person, without success. HER HONOUR: All right. So are you saying that [the complainant s] answers now, because of the culture, are unlikely to be the truth? INTERPRETER: That's right, your Honour. HER HONOUR: Right. Is there a way of asking that could assist? INTERPRETER: I was thinking, this morning, of whether I could try a different way of asking her to understand that it is the question you answer and not----- HER HONOUR: Not the person. INTERPRETER: -----who you're speaking to. HER HONOUR: Asking, asking. INTERPRETER: I ve thought of a different way of trying but I hadn t seen her to, to actually try. HER HONOUR: All right. Well, perhaps we ll take a bit of a break, I ll discuss the issue with counsel, so I ll just ask the jury to retire, hopefully for not too long. 35 After the jury retired, the following occurred HER HONOUR: So, I take it, [interpreter], for instance, to your knowledge [the complainant] would know Eleanor Woolla and Transcript of the trial, pp

13 13 INTERPRETER: Yes. HER HONOUR: -----And Akay Koo oila? INTERPRETER: Yes. HER HONOUR: One would expect she would. INTERPRETER: Exactly. HER HONOUR: But she's saying no because of the context here? INTERPRETER: Because of the context in court. She did, at the court last case she did exactly the same, she went through no, no, no to, to events. HER HONOUR: To questions that you knew----- INTERPRETER: To the questions that I knew she said well, she had said the day before she knew. HER HONOUR: Okay. Now, you said you thought there was a tactic you could use. INTERPRETER: I have another way of trying. HER HONOUR: Do you need to talk to her privately first? INTERPRETER: I think that would probably be the easiest way. HER HONOUR: Do you have any objection to that? MR SHERIDAN: No, I don t. But I should indicate that your Honour didn't inquire about the expertise of [interpreter]. I think that it would be appropriate to do so because this might become an issue at a later time. HER HONOUR: Well, I m aware of [interpreter s] linguistic background and----- MR SHERIDAN: Yes. 36 There was discussion of the interpreter s qualifications and experience, of the unavailability of a NAATI accredited interpreter, and of the Government s setting up a program for training cultural facilitators. The trial judge observed and I think that s partly what [the interpreter] is doing for us here; is not just the simple language translation and interpreting but also facilitating between our culture and the Wik culture, and that s important, to get the real meaning of what s being said across So 36 Transcript of the trial, p 51.

14 14 perhaps we should be regarding [the interpreter] something of both. Would you agree with that 37 The interpreter agreed. The appellant s counsel was given the opportunity to raise anything else. He responded No, apart from I would agree with those whereupon the trial judge said to the interpreter We ll let you go and have a chat to [the complainant] outside and see how you go and see if we can proceed from there. 38 And that is apparently what happened. [40] Before this Court the appellant s counsel complained, too, that at times it was hard to know what was being interpreted in the first person and what in the third person. [41] While these procedures were unorthodox, this Court should be cautious about being unduly critical of them in all the circumstances, including trial counsel for the appellant s general acquiescence. That said, they cannot be ignored in the consideration of whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt of the appellant s guilt. [42] It may be that the prosecutor was labouring under some difficulty because he had not had sufficient time with the complainant in pre-trial conference. 39 As counsel for the respondent observed, her evidence might have been prerecorded pursuant to s 21A of the Evidence Act 1977, but it does not appear from the record that any consideration was given to this. [43] Clearly there is still much to be done systemically by those involved at all levels of the criminal trial process (the Courts themselves, the prosecution and the defence) to ensure that the defendant in a case such as this receives a fair trial and that the complainant has a proper and meaningful opportunity to give her evidence. And implementation of any new procedures which may be devised will require proper resourcing. Verdicts unreasonable [44] The prosecution case depended on the jury s accepting the complainant s evidence. Whether because of language difficulties or for other reasons or for a combination of language difficulties and other reasons, that evidence was so vague and so riddled with inconsistencies that the verdicts on counts 3 and 4 are unsafe and unsatisfactory. [45] I would allow the appeal, set aside the convictions on counts 3 and 4 and direct that acquittals be entered on those counts. [46] PHILIPPIDES J: I have had the advantage of reading the reasons for judgment of Wilson J. I agree with those reasons and with the proposed orders Transcript of the trial, p 53. Transcript of the trial, p 53. Transcript of the trial, p 10.