Abdula v R

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

[2011] NZSC 130

IN THE SUPREME COURT OF NEW ZEALAND

Court:

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

SC 80/2010

Chala Sani Abdula
and
The Queen
Counsel:

D L Stevens QC for Appellant

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

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.

Held: The accused had a right to know in full detail and contemporaneously what was taking place at the trial. The level of understanding protected by the right was high. Monitoring of indications of the adequacy of interpretation was required by the courts by reference to whether an accused understood what was happening and could make himself understood.

Interpretation was not a mechanical exercise, but an interpreter should convey, as accurately as the target language permitted, the idea or concepts expressed. Deficiencies in interpretation might not give rise to a breach of the rights of an accused at common law or under the NZBORA. The focus was on the right of assistance of an interpreter under s24(g) NZBORA (right to have the free assistance of an interpreter) and the right to a fair trial under s25(a) NZBORA and to be present at trial under s25(e) NZBORA.

The standard of interpretation was one which complied with those rights. That standard had to reflect the accused person's entitlement to full contemporaneous knowledge of what was happening at trial. Interpretation would not be compliant if as a result of its poor quality the accused was not able to sufficiently understand the trial process or any part of the trial that affected the accused's interests to the extent that there was a real risk of impediment to the conduct of the defence.

Where compliance was challenged, the cumulative effect of the deficiencies in the interpretation had to be evaluated in the overall context of the trial to determine if the standard was such that there was nevertheless compliance with the accused's rights. Once properly established, a breach – the failure to meet the required standard — necessarily made the trial unfair. It was axiomatic that a substantial miscarriage of justice would have occurred and there could accordingly be no recourse to s385(1) Crimes Act 1961 (appeal to be dismissed if court of opinion no substantial miscarriage of justice occurred).

The interpreter had been qualified and held the highest formal qualification available in Australasia and had undertaken numerous interpreting assignments. That fact his experience was mainly at Tribunal level was of no importance. There was no evidence that the fact he was not a member of the professional body in Australia had affected his ability. It was not the case in New Zealand that only those holding particular qualifications were recognised as competent to interpret trials.

The interpreter's approach had been one of consecutive interpretation which at times became simultaneous with counsels' and witnesses' responses. Although there had been some occasional difficulties, the Judge had regularly taken the initiative in ensuring the interpretation process was working. It was also clear that the interpreter sought and obtained repetition of questions or evidence before translating.

There had not been any objection during the hearing to the interpretation. Although Abdula said he was reticent about complaining, that did not adequately explain his failure to indicate to his counsel that that was any problem when he had been approached by them; he had told them he was happy with the interpreting. At no stage had Abdula indicated that he had difficulty understanding evidence or the trial procedure. Abdula had also had opportunities during breaks, when conversing informally, to raise any issues. It was relevant that this had been a straightforward trial in which the issues were clear and no doubt well understood by Abdula (who understood English to some extent) at the outset.

While the approach followed in the case was not unusual, it did not at times reflect best practice. Consecutive interpretation at all time was highly desirable. The interpreter should speak in a voice loud enough for all in the courtroom to hear. An audio recording should be made in all criminal trials in which there was an interpreter, and this would be transcribed or released to the parties by order of the court only if and when necessary. These practices would prevent lapses in the standard of interpretation that might lead to beaches of the accused's rights.

Abdula had not shown that the interpretation fell below the standard required by the NZBORA. Appeal dismissed.

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

REASONS

(Given by McGrath J)

Introduction
1

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.

Background
2

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.

3

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.

4

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.

5

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
6

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.

7

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...

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19 cases
  • Chow v R
    • New Zealand
    • Court of Appeal
    • 12 August 2013
    ...an accused's rights in this context would not be breached unless “there was a real risk of an impediment to the conduct of the defence” ( Abdula v R). C's counsel had discussed the documents with C in the presence of an interpreter, and there was then had a two day adjournment to consider t......
  • Hksar v Eruvattam Kundil Anil
    • Hong Kong
    • High Court (Hong Kong)
    • 10 June 2015
    ...that will ensure that the defendant is understood and understands the proceedings and that he receives a fair trial. See Abdula v R [2011] NZSC 130 at paras 40 to 44 per McGrath J and HKSAR v Shahid [2013] 4 HKLRD 226 at paras 41 to 53 per McWalters J (as he then 31. Of course, under our cr......
  • Criminal Bar Association of New Zealand Incorporated v the Attorney-General
    • New Zealand
    • High Court
    • 31 August 2012
    ...legal assistance without cost (s 24(f)), and to have adequate facilities to present a defence (s 24(d)) will inevitably be compromised. In Abdula v R the link between s 24 rights and “the overarching right of a person charged to a fair trial” (s 25(a)) was highlighted. 21 82 The plaintiff a......
  • Hksar v Shahid
    • Hong Kong
    • High Court (Hong Kong)
    • 16 August 2013
    ...able to locate a case on mistranslation of evidence. It comes from New Zealand and is the decisions of its Supreme Court in R v Abdula [2011] NZSC 130. At paragraphs 40 – 41 McGrath J “[40] Prior to considering whether the interpretation in this case met the Bill of Rights Act standard, it ......
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