Gibson v State of WA  WASCA 141 (28 July 2017)
The Western Australia Court of Appeal has found in favour of the appellant and quashed his manslaughter conviction. In doing so, the Court set aside the guilty plea that the appellant had given at trial on the grounds of a finding of miscarriage of justice. This case explores the various factors that may contribute to a miscarriage of justice which is a fundamental human rights concept.
The Court found that there was a real risk that the appellant’s plea was not attributable to a genuine consciousness of guilt. The absence of a qualified interpreter during the appellant’s interaction with his solicitors also contributed to the miscarriage of justice.
The appellant, Mr Gene Gibson, was born and raised in Kiwirrkurra, a remote aboriginal community in the Gibson Desert, some 850 kilometres west of Alice Springs. The appellant’s native language is Pintupi, and his second language is Kukutja. The appellant had lived a disadvantaged life; his father died when he was very young and he was later abandoned by his mother. He has a limited education, a history of drug and alcohol abuse and, relevantly to the Court’s determination, a severely limited ability to comprehend and communicate in English and significant and pervasive cognitive impairments.
The appellant was driving a stolen vehicle, with his uncle and cousin, in Broome on 25 February 2010. The appellant was 18 years old at the time, while the other two were aged 19. A young aboriginal woman was also a passenger for a short period.
A Joshua Warneke, was found deceased around 3 am the next morning on the side of the road on which the car travelled. The appellant was not initially identified as a person of interest until over two years later, when he participated in electronically recorded interviews (EROIs) with police. He was charged with Mr Warneke’s murder the next day.
After the State filed the indictment in October 2013 which alleged that the appellant had murdered Mr Warneke, the appellant’s lawyer, Mr Brunello, filed an application that the EROIs were inadmissible. The Court held that they were indeed inadmissible as:
- his participation in the interviews was not necessarily voluntary;
- the police had breached the relevant Criminal Investigation Act; and
- it would be unfair to admit the EROIs, due to his limited English comprehension and communication.
The State subsequently substituted a new indictment which charged the appellant with manslaughter, to which he pleaded guilty, and was sentenced to 7 years 6 month’s imprisonment.
The appellant subsequently appealed the conviction on the ground that a miscarriage of justice occurred because his plea was entered in circumstances in which the integrity of the guilty plea was adversely affected by:
- the appellant’s actual understanding, and capacity to understand, the legal process, the case against him, his legal advice, and the alternate options and consequences;
- the appellant’s guilty plea was entered into where witness statements obtained by police were subsequently proven false;
- the plea was not attributable to a genuine consciousness of guilt; and
- an ‘issuable question’ about the appellant’s guilt.
The Court allowed the appeal and set aside the conviction of the count of unlawful killing.
It found that a miscarriage of justice had occurred because the integrity of the appellant’s guilty plea was impugned by:
- the likelihood that he had not understood adequately the legal process, the State’s case against him, the legal advice given to him about his plea, the options available to him and the consequences of a plea of not guilty; and
- the real, as distinct from fanciful, risk that the plea was not attributable to a genuine consciousness of guilt.
It was noted that the circumstances which will constitute a miscarriage of justice are not closed and cannot be exhaustively listed. The specific factual basis for the finding in this case included:
- the unchallenged evidence of both psychologists established that the appellant suffered from significant and pervasive cognitive impairments;
- the fact that appellant could not read English and his oral communication is less than adequate;
- the appellant’s interpreter who gave evidence was not entirely qualified and had poor recollection;
- the meeting between the appellant and his lawyer, after which his lawyer arranged the guilty plea, was conducted without an interpreter, and his lawyer did not fully appreciate his cognitive impairments.
- the manner in which his lawyer gave advice and received instructions was unsatisfactory due to pressure placed on the lawyer; and
- the appellant did not understand the material aspects of the pending criminal proceedings, or the alternate options and consequences, after meeting with his lawyer.
This case shines a light on several aspects of the judicial system which contribute to a fair and just trial. As the power of the court to enter a judgment of acquittal with a retrial is “to be used sparingly”, the fact that the Court elected to do so here, indicates that the present circumstances clearly indicated a miscarriage of justice.
The need for interpreters who are trained in Aboriginal dialects has been emphasised. As the appellant here could not read English and his oral communication was limited, his inability to understand his legal circumstances contributed to the finding of a miscarriage of justice. In this case, it would have been advisable to obtain the services of an interpreter trained in either Pintupi or Kukutja, the appellant’s first and second languages respectively. The police ought to be wary of questioning suspects, who do not speak English, without the appropriate interpreter on hand.
This case also shines a light on several aspects of the institutional disadvantages faced by indigenous defendants from remote areas in particular the problems in the provision of interpreters in the relevant dialect.
The full text of the decision can be found here.
Tony Sergi is a Special Counsel, Andrew Robertson is a Lawyer and Tim Filippi is a Lawyer at Norton Rose Fulbright.