DPP v Natale (Ruling)  VSC 339
In a recent interlocutory ruling, Justice Bell of the Supreme Court of Victoria excluded from evidence admissions obtained from an elderly Italian migrant who spoke limited English during a police interview conducted without an interpreter.
Justice Bell excluded the evidence on the basis that, because of the failure of police to provide an interpreter, the admissions had been ‘improperly and unlawfully’ obtained and it would be unfair to admit them.
The accused, Mr Rocco Natale, faced charges of incitement to murder, extortion with threat to kill and threatening to kill. It was alleged that he had offered $4,000 to a friend in return for killing a member of his wife’s family, and when the friend refused to comply, that the accused threatened to kill the friend and his family.
The prosecution sought to adduce evidence of admissions Mr Natale had made during a police interview. The admissions included what was, in effect, a threat to his wife’s family, made some months before the allegations in question.
Mr Natale had a very limited command of the English language. During the police interview, he stated at various points that he did not understand the questioning, and the audio-visual recording showed body language consistent with a lack of understanding. Much of the questioning on the recording was leading and Mr Natale’s answers were perfunctory monosyllabic “yeah” or “no” responses.
The defence made an application to exclude evidence of the admissions, including under the following sections of the Evidence Act 2008 (Vic):
Section 90, which contains a discretion to refuse to admit evidence of an admission if, having regard to the circumstances in which it was made, it would be unfair to use the evidence.
Section 138, which provides that evidence is not to be admitted if it was improperly or unlawfully obtained, unless the desirability of admitting the evidence outweighs the undesirability.
Justice Bell, having read the record of interview and watched the audio-visual recording, made the following factual findings which informed his consideration of the application:
[Mr Natale] did not have sufficient knowledge of the English language to be able to understand the questioning or communicate his answers. He did not appreciate his human rights, especially his right to remain silent, and that the admissions could be used against him in court. The interview was not actually voluntary, whatever the outward appearances.
Section 90 – discretion to exclude evidence on basis of unfairness
Justice Bell confirmed that the purpose of the unfairness discretion contained in section 90 of the Evidence Act is to protect the rights and privileges of the accused, the most fundamental of which is the right to a fair trial.
His Honour concluded that it would be unfair to admit evidence of the admissions in the circumstances, which included:
Mr Natale’s personal condition and characteristics (in particular his poor English);
the fact that the interview was not substantively voluntary;
the “real questions” which arose as to the reliability of the admissions; and
the fact that Mr Natale would face an unfair forensic disadvantage if the evidence were admitted.
The unfair forensic disadvantage arose because Mr Natale would be faced with electing to give evidence to explain what he had said during the interview, which would expose him to a potentially credit-destroying cross-examination.
Justice Bell referred to Gibson v State of WA  WASCA 141 in which Justice Hall discussed what standard of English was required before police could interview a person without an interpreter. A summary of that decision can be found here. According to Justice Bell, the standard set by Justice Hall was not met in this case.
Accordingly, Justice Bell concluded that the admissions ought to be excluded under section 90 of the Act.
Section 138 – exclusion of improperly or illegally obtained evidence
In considering the application of section 138(1) of the Evidence Act, Justice Bell addressed first the question whether the evidence was obtained improperly or unlawfully, and second, the question whether the desirability of admitting the evidence outweighed the undesirability.
His Honour concluded that the evidence was obtained improperly or unlawfully because the officer who conducted the interview had violated the various human rights of Mr Natale, and the officer’s associated legal obligations, each of which is set out below.
The right of Mr Natale to equal and effective protection against discrimination in article 26 of the International Covenant on Civil and Political Rights (ICCPR). Section 138(3)(f) of the Evidence Act permits the Court to take into account whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the ICCPR. His Honour held that the failure to provide an interpreter was a form of (indirect) discrimination contrary to article 26 of the ICCPR. The discrimination was based on race (defined to include nationality or national origin) because Mr Natale’s lack of English was a natural attribute of his Italian descent.
The obligation of the officer under section 464D(1) of the Crimes Act 1958 to arrange for an interpreter and defer the questioning until one was available.
The right of Mr Natale to equal and effective protection against discrimination in section 8(3) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the obligation of the officer to act compatibly with that right in section 38(1). Justice Bell held that ensuring the presence of an interpreter during an interrogation of someone with poor English is an accommodation of difference without which the interrogation may be discriminatory.
The obligation of the officer to give or translate the caution into a language in which Mr Natale could communicate with reasonable fluency in section 139(3) of the Evidence Act.
On balance, his Honour was not satisfied that the desirability of admitting the evidence (the exclusion of which would not be fatal to the prosecution’s case), outweighed the undesirability. In particular, he noted that the violations of the rights and obligations listed above damage the administration of justice and the rule of law and that the Court may denounce what has occurred.
Accordingly, his Honour held that the evidence ought to be excluded pursuant to section 138.
Australia is a multicultural nation which, according to the 2016 Census, is home to speakers of over 300 separately identified languages. People from non-English speaking backgrounds are among Australia’s most vulnerable when it comes to asserting their legal rights. This vulnerability potentially impacts a number of minority groups in Australia, such as Aboriginal and Torres Strait Islander Australians, asylum seekers and refugees, and migrants.
The vulnerability is not always obvious. A person may be competent conversing in everyday English, but may not be able to adequately understand more complex words or ‘legalese’ which may be crucial in interviews with police or other authorities. For people in this situation, the right to an interpreter is an important legal protection.
According to research published by the Australian Institute of Criminology, all jurisdictions except the Northern Territory have legislation providing for the provision of an interpreter where the interviewee’s English is limited.
This case demonstrates that the rights of non-English speaking people can be protected in Australia through legislative safeguards, including the enactment of specific requirements for interpreters, through the codification of human rights law, or as in this case, through a combination of both.
The full text of the decision is available here.
Caitlin Brown is a Senior Associate, Hector Sharp is a Lawyer and Cassie Mortimer is a Graduate at Norton Rose Fulbright.
 Dr Lorana Bartels, ‘Police interviews with vulnerable adult suspects’ (Research in Practice Report 21, Australian Institute of Criminology, Australian Government, 2011)