Abdula v R

JurisdictionNew Zealand
CourtSupreme Court
JudgeMcGrath J
Judgment Date01 November 2011
Neutral Citation[2011] NZSC 130
Docket NumberSC 80/2010
Date01 November 2011
Chala Sani Abdula
The Queen

[2011] NZSC 130


Elias CJ, Blanchard, Tipping, McGrath and William Young JJ

SC 80/2010


Appeal against conviction on grounds of inadequate translation during hearing — accused Ethiopian with limited understanding of English — two translators used, one had no formal qualifications — accused did not complain during trial of translation issues — whether manner of interpretation breached accused's trial rights under s24 (rights of persons charged) and s25 New Zealand Bill of Rights 1990 (minimum standards of criminal procedure) — principles related to standard of translation.


D L Stevens QC for Appellant

D B Collins QC Solicitor-General, H W Ebersohn and R A Kirkness for Crown


The appeal against conviction is dismissed.


(Given by McGrath J)


This appeal raises an issue that is central to fairness in the administration of criminal justice. It concerns the right of accused persons who do not speak English to hear and understand the case being presented against them. They are dependent on effective interpretation of what is said in court if they are to understand the proceedings and have a real opportunity to present a full defence to the criminal charges they face.


The appellant, Mr Abdula, was tried jointly with a Mr Ahmed on a charge of rape. The complainant was an 18 year old woman who had been walking home early on a Sunday morning while intoxicated. She approached a group standing outside bakery premises and asked to use the toilet. One of the group, Mr Ahmed, took her inside to a disabled persons' toilet where he forced her to remove her clothing and sexually assaulted her. The complainant's evidence was that a second man then entered the toilet and raped her. She did not get a good look at him but heard one of the two men then present threaten her in English. There was evidence that the appellant had some command of English while Mr Ahmed had virtually none. A third man then intervened and the complainant was able to leave the toilet and walk away from the bakery to a bus stop where persons she came across paid for a taxi to take her home.


After speaking with her flatmate, she called the police and later that morning was medically examined with vaginal cervical swabs being taken. Testing indicated the presence of semen which, on analysis, was consistent with having originated from the appellant or a close relative of his. DNA profiling results on the clothing worn by the complainant were “50 million million” times more likely to occur if the DNA originated from the appellant than from another randomly chosen male.


The appellant, in a statement to the police, denied that he had raped or had sexual intercourse with the complainant. He admitted engaging in other sexual activity with her, which he said was consensual. As a result of that activity, he had ejaculated on her hand. The appellant's defence was that part of the fluid on the complainant's hand was later transferred to the areas from which swabs were taken. There was evidence indicating this was possible and the defence case was that this explained why the appellant's DNA was found in those areas.


The issues at the trial were straightforward. They principally concerned the nature of the sexual activity that had taken place, whether or not it was consensual and how the appellant's DNA came to be associated with the complainant. The time during which the disputed events occurred was short. The scope and nature of the dispute concerning the relevant events would have been apparent to the appellant and his counsel prior to trial. The defence case required cross-examination of the complainant concerning the nature of the sexual activity and cross-examination also of the technical witnesses to establish the possibility of transfer of the appellant's DNA to the complainant by a means other than sexual intercourse. The appellant did not give evidence. He relied on his police statement to support his version of the sexual activity that had taken place. The outcome of the trial was that the appellant was convicted of rape and Mr Ahmed of being a party to that rape. Mr Ahmed was also convicted of unlawful oral sexual connection in respect of the separate incident. It is in this factual context that the adequacy of the interpretation assistance provided to the appellant during his trial must be assessed.

Interpretation during the trial

The appellant and Mr Ahmed were tried together by Judge Behrens and a jury. They had the assistance of a single interpreter at the trial. An interpreter had been brought to New Zealand from Australia for the trial to interpret for Mr Ahmed between the English and Oromo languages. Oromo is one of the official languages in Ethiopia, from where both accused came. Initially there were no plans to provide an interpreter for the appellant because he had some understanding of English. When asked by the Judge at the commencement of the trial whether he could also interpret for the appellant, the interpreter agreed to do so. He told the Judge that he had previously interpreted in two trials in New Zealand and had also interpreted for two people at once.


The interpreter sat in the dock, between the two accused, for the whole of the first week of the trial. During that week the Crown opened, counsel for each accused made opening statements, and the Crown called all its evidence. Counsel for Mr Ahmed then opened and called evidence, and counsel for the appellant opened his case. The interpreter then had to return to Australia. The trial continued the following week with a different interpreter, who is a taxi driver in Wellington and does not appear to have formal qualifications. There was no complaint concerning the standard of his interpretation.


Early on in the trial the Judge intervened, expressing concern over whether the interpreter was keeping up. The interpreter said he was having some trouble. At the Judge's request, Crown counsel repeated his opening address, this time waiting until interpretation of each passage had been concluded before continuing. The prosecutors thereafter explained to each Crown witness how the interpretation process would work and that the process would be slow. There were a number of interventions by the Judge during the week in relation to interpretation. These included directions to witnesses to wait until translation of questions had been completed before commencing to answer them, and to counsel to read out documents and provide copies to the interpreter to facilitate their interpretation. On occasion, presumably at the interpreter's request, the Judge required repetition of questions. It is common ground that no complaint was made during the trial over the adequacy or effectiveness of the interpretation.

The appeal

The appellant appealed against his conviction. 1 One of the grounds of appeal was that the standard of interpretation at his trial did not meet that required to comply with his right to an interpreter under the New Zealand Bill of Rights Act 1990. The Court of Appeal admitted affidavits on behalf of the appellant from, amongst others, the appellant himself, his partner, and his junior counsel, Ms Fairbrother. The Crown replied with affidavits, including one from the interpreter, and one from the appellant's senior counsel, Mr Nisbet.


In his affidavit, the appellant said it was apparent to him that the interpreter was not coping. Often the appellant could not hear the interpretation, and sometimes the next evidence commenced before the interpreter had finished interpreting that already given. At times, there had been incorrect interpretation of words in English which the appellant understood. The interpreter had also described some evidence as

relating to Mr Ahmed when the appellant thought it had related to him. The appellant said he had to correct the interpreter when he did this. This is relevant to the level of understanding the accused had about what was being said at the trial

Mr Nisbet said he had regular contact with the accused, his partner and supporters during the trial. He checked regularly with the appellant that he was understanding matters and “he confirmed that all was okay”. Both counsel for the appellant were concerned over the accuracy of interpretation. The appellant did not, however, raise with them during the trial any issues about the quality of interpretation, nor did he indicate at any stage he was having difficulty in understanding the evidence or procedure.


One reason why senior counsel made every effort to ensure the appellant understood what was going on was that he realised that the accused was a person who wanted to please and never complained. Mr Nisbet said he was not surprised to learn subsequently from his affidavit that the appellant had at times struggled to understand everything the interpreter was saying. Mr Nisbet also said that much of the interpreter's time was spent ensuring that Mr Ahmed understood the evidence and the court process. He said that “[t]his could have been to the detriment of Mr Abdula's understanding of the evidence being led”.


Ms Fairbrother said that the interpreter did not speak at a volume that everyone in the courtroom could hear. At times, the witness and counsel were speaking while the interpreter was still interpreting. It seemed to Ms Fairbrother at the time that there was “a potential problem with an interpreter who was softly spoken sitting between two men in the dock and seeking to interpret for them both”. The appellant was, however, asked by Ms Fairbrother, in English, whether he was happy with the interpreting and he told her he was. In any event, no other interpreter was available.


The interpreter himself made an affidavit on which he was cross-examined, by video link,...

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