The Queen v Shaqlane [2001] NZCA 47; (2001) (unreported, Court of Appeal, NZ, 5 March 2001) (5 March 2001)

Last Updated: 14 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA341/00

THE QUEEN

V

HASSAN AHMED SHAQLANE

Hearing:	27 February 2001
Coram:	Blanchard J Anderson J Paterson J
Appearances:	G Wilson for Appellant M A Woolford for Crown
Judgment:	5 March 2001

JUDGMENT OF THE COURT DELIVERED BY PATERSON J

[1] Upon his trial before a Judge and jury the appellant was convicted of one charge of sexual violation by rape and one charge of detention under s 209(1)(a) of the Crimes Act 1961. He was sentenced to a term of imprisonment of eight years on the sexual violation conviction and a concurrent term of five years on the detention conviction. This appeal is against both conviction and sentence.
[2] The stated grounds of appeal on the conviction appeal are, first, that the Judge erred in declining counsel’s request to call the Court interpreter as a witness; secondly, the Judge erred in declining to accept the jury’s advice that it could not agree, and in directing the jury to return to its deliberations; thirdly, the defence case was prejudiced by the Crown’s refusal to make full disclosure in that statements taken by police from alibi witnesses were not disclosed; and lastly, the verdicts were “against the weight of evidence.”

The interpreter

[3] The appellant is a Somali with a limited understanding of English. When interviewed by the police, the appellant gave an interview which was recorded on video tape and at which he was assisted by an interpreter, Mr Abdi.
[4] The appellant had previously been tried on the same charges but the jury had failed to agree. Both at the original hearing and on the retrial, Mr Gamadid was the Court appointed interpreter. After the video of the appellant’s interview was shown at the retrial, Mr Gamadid raised with the defence counsel concerns about the accuracy of the interpretation. As a consequence, there was a discussion with counsel in Chambers at which the appellant’s counsel requested Mr Gamadid be called to testify as to his different interpretation of what the appellant said during the police interview. This application was declined and it was submitted that in so declining, the Judge erred.
[5] The reason the Judge declined to allow Mr Gamadid to give evidence was that he was a functionary of the Court. His responsibility was to the Court and if he were to give evidence, it would be necessary to abandon his official role and for another Court interpreter to be sworn in for the rest of the trial. The Judge made it clear that the defence had the right to call another interpreter of the Somali language who would then be entitled to give a literal translation of what he or she believed to have been said by the appellant at the police interview. He would not, however, permit an interpreter to give a subjective explanation of what the witness had said.
[6] The Judge did consider it appropriate to ascertain what Mr Gamadid’s concerns were and informally saw Mr Gamadid in the presence of both counsel and the accused. There were two portions of evidence which Mr Gamadid thought had not been literally interpreted. The transcript shows that Mr Abdi interpreted the first portion as follows:

“Interpreter:

Well, he said that did not happen and that he never touched that girl.

Police Officer:

Okay.

Interpreter:

And if the Police can prove that, then he said he will be responsible.

Police Officer:

If the Police can prove it?

Interpreter:

Yeah.

Police Officer:

He will be responsible?

Interpreter:

Yeah.

And then the accused added himself “Yeah”.

Mr Gamadid said that the correct interpretation was:

“If I touched the girl it must be proved. I didn’t touch the girl, but I would be responsible if it is proved.”

[7] The second portion of the interview was interpreted by Mr Abdi as follows:

Police Officer:

Yeah, is there anything else you want to tell me?

The accused then spoke to the interpreter in Somali, and the interpreter responded:

Interpreter:

Well, he said he would bear responsibility if blood prove it.

Accused:

By blood test, blood test.

Interpreter:

You know, by doing blood tests.

Police Officer:

Yeah.

The interpreter said something that was not audible, and then said:

Interpreter:

If it can prove, if it can be proved, then he is quite happy to co-operate.

Police Officer:

Okay, that’s good.

Accused:

Yeah.

In Mr Gamadid’s view, this should have been interpreted as follows:

“If someone was raped by others it should be found from the blood. I am prepared to accept if the Police prove that I am the one that raped the girl from the blood test.”

[8] Mr Abdi also viewed the videotape with the officer in charge and Crown counsel. As a result, he produced what he considered to be the correct translation of the two passages at issue. These were shown to counsel for the appellant. There was then a further discussion in Chambers with the Judge and both counsel in the end effectively agreed to let the matter lie. Mr Abdi’s reviewed translations were:

First Portion

“If I touched her, if the police, they investigate, it is my crime.”

Second Portion

“If something shows up on someone who has been raped, the blood is tested, the blood of the person. Once that is proved and the crime is proved against me I am standing for it.”

[9] It will be seen that in terms of literal translation the opinions of both Mr Gamadid and Mr Abdi were essentially similar. The concern of counsel for the appellant was, however, that beyond the issue of exact translation there were considerations of meaning or connotation, according to the nature of the Somali language, which gave such words a quality of emphatic denial although the exact translation might suggest, wrongly, a confession of guilt or at least ambiguity in that respect. Mr Wilson therefore submitted that a risk that the jury might wrongly evaluate the words used, according to the interview translation, as an admission or as an equivocal statement would have been avoided by the calling of expert evidence as to the characteristics of the Somali language.
[10] We were told from the Bar that appellant’s counsel did consider calling another interpreter. He was given five names of possible interpreters but two of them were already involved, namely, Messrs Abdi and Gamadid. During a luncheon adjournment he was unable to contact any of the other three. He did not seek an adjournment.
[11] There are two reasons, when considered together, which in our view lead to the conclusion that there was no miscarriage of justice in this case. First, when the transcript of the videotaped interview is read in context, the relatively minor differences in the interpretation are not, in our view, material. The comments were made in an interview in which the appellant clearly denied that he had offended. He denied ever being in the car in which the rape allegedly occurred and at an earlier stage in the interview, had said that he was ready to do a blood test, a DNA test to prove that he was not the one who raped her. He said the story of the rape had no basis. When taken in context it is difficult to see that any of the alternative meanings amounted to an admission or would have been taken as such by the jury.
[12] Secondly, after both counsel in their final addresses had made submissions on the interview, the Judge in his summing up gave the jury a clear warning. When referring to the interpreter’s evidence, he said:

“Now there may well be some imperfections in this process as I am sure some of you will realise if you have friends whose native tongue is not English. It is often difficult to be perfectly accurate in this translation process. The interpreter as I am sure as I am sure has been the case here, tries his best but there may be a cultural difference or overlay that affects the translation process. Of course, unless someone on this jury happens also to be fluent in the Somali language, then you will be very much into the dark as to the accuracy of the translation and it is not for you to, of course, guess or speculate about things of that sort. But you can, I think at least accept that cultural and linguistic difficulties may colour the actual way, in this case the Somali tongue is translated into the English tongue.”

Later in his summing up, he said:

“Mr Wilson says do not forget, of course, that there was this immediate denial by the accused. He has never admitted anything. There were these funny passages in the transcript of the video tape. Well it is for you to make what you will of that on pages 15 and 18 of the transcript where the language is somewhat odd to our ears but where he seems to first be saying, “well, I didn’t I wasn’t there, I didn’t do anything, it didn’t happen” and then goes on with these unusual words that if the police can prove that he would be responsible. Well whether that is just a problem with the translation I do not know, it is a matter for you to determine from your impressions of the video. Then at the last page where there is a bit about the blood. I will ask you to look at that, it is page 18. He would bear responsibility if the blood proved it. Now you make what you will of that, it is for you to assess as you assess the other things.”

[13] Having regard to the interview as a whole and the above directions given by the trial Judge, we think there was no real risk of the jury thinking that the appellant, in his videotaped interview, was resiling from the denial that he had maintained throughout the interview. It follows that we are not satisfied that in consequence of the Judge’s decision declining the application to call the Court interpreter as a witness there was a miscarriage of justice.

Jury deliberations

[14] This point of appeal was based on the assumption that the Judge should have, at an appropriate time, given some of the directions contained in the normal Papadopolos direction. The jury began deliberating about 3.37 pm. At 9.36 pm the Judge received a note from the jury which read:

“At this point we the jury are 10 to 2 that Hassan is the offender on Saturday the 4th, the two jurors are steadfast that they have doubts. With regard to the first charge we the jury are 10 to 2 for acquittal. We the jury have voted exactly the same as Charge 3.”

The first charge referred to was a charge relating to an incident a few days earlier on which the appellant was acquitted.

[15] On receipt of the note, the Judge discussed the matter with counsel in Chambers and declined a suggestion from Crown counsel that the jury be given a Papadopolos direction. He also declined to discharge the jury as requested by defence counsel.
[16] The jury was then called into Court and the record discloses the following conversation:

“QUESTIONS FROM THE JURY:

BENCH:

Mr Foreman, I have received a communication from you. You indicate that the jury is unable to agree on any of the 3 counts in the indictment. You have given some figures here, about 10 to 2 and 2 to 10 and so on, do I take it that there is no possibility, if given further time, that you might be able to achieve a unanimous verdict?

FOREMAN:

On the first charge I think it is possible that we could come to a verdict, as to the other two charges I think the two jurors in question that have doubts, I can not see their doubts I can not see their doubts being gotten rid of.

BENCH:

This has been, you’ve been in this situation now for some time I imagine.

FOREMAN:

Yes, well I think the first charge we could come to an agreement on possibly, but as for the second and third one we tend to.

BENCH:

Alright, I will ask you to retire further to continue your deliberations ladies and gentlemen. I will make inquiry of you within another half an hour or so.

[17] There is nothing in this ground of appeal. The Judge was under no duty to give a Papadopolos direction and did not put the jury under any pressure. He told them he would make an inquiry within half an hour or so. To have given the direction now suggested by the appellant would have placed greater pressure on the jury.

Disclosure

[18] The third ground was that the appellant’s case was prejudiced by the Crown’s refusal to make disclosure of statements taken by the police from alibi witnesses. Prior to the first trial, the appellant’s counsel requested a copy of the interview notes of one of the appellant’s named alibi witnesses. The Crown declined to provide these notes, relying on the House of Lords decision in R v Brown [1997] 3 All ER 769. The appellant did not apply before either trial for an order directing that the Crown provide the statements. In the first trial, one of the alibi witnesses gave evidence for the appellant and had put to him in cross-examination his statements to the police. This differed from his evidence in Court and he was cross-examined at length on the inconsistencies. Notwithstanding these inconsistencies, he was again called at the second trial and once again, the subject of cross-examination was on the inconsistencies between the evidence given in Court and what he said in his police statement.
[19] We accept on the authority of R v Brown that there was no obligation on the Crown to disclose these statements. Brown was a case where the defence contended that the Crown was under a duty to disclose to it information which tended to reflect on the credibility of two alibi witnesses whom the defence called and the failure to do so was a material irregularity which rendered the conviction unsafe and unsatisfactory. Lord Hope of Craighead in giving the principal judgment of the Court of Appeal said at p 277:

“A defendant is entitled to a fair trial, but fairness does not require that his witnesses should be immune from challenge as to their credibility. Nor does it require that he be provided with assistance from the Crown in the investigation of the defence case or the selection, on grounds of credibility, of the defence witnesses. The legal representation to which he is entitled, usually with the benefit of legal aid, has the responsibility of performing these functions on his behalf ... The prosecutor’s duty is to prosecute the case fairly and openly in the public interest. It is not part of his duty to conduct the case for the defence.”

The judgment also noted that cross-examination which is directed only to credibility may lose much of its force if the line is exposed in advance. To insist on disclosure of the alibi statements would, sooner or later, undermine the process of trial itself. It would protect from challenge those who were disposed to give false evidence in support of the defence which had been fabricated. This would be to tip the scales too far. We agree. In our view, there was no obligation on the Crown to produce the statements in this case.

Against weight of evidence

[20] The final point on appeal was “the verdicts were against the weight of evidence.” As stated, this is not a ground of appeal. Section 385(1)(a) of the Crimes Act 1961 permits this Court to allow an appeal if, in its opinion, “the verdict of the jury should be set aside on the grounds that it is unreasonable or cannot be supported having regard to the evidence.”
[21] Mr Wilson referred to the verdicts being against the weight of evidence because of the absence of forensic and fingerprint evidence and the possibility that the two main identification witnesses may have been incorrect or given false evidence. We have read the evidence in this case and are satisfied that the verdict can be supported with regard to the evidence which was adduced. The complainant made the allegations against the appellant and the identification evidence was supported by the driver of the car in which the offence was allegedly committed. The question of whether or not the jury accepted this evidence was a matter entirely for the jury. This was a case where the vital jury issue was credibility. It accepted the complainant’s evidence on the two charges and was entitled to do so.
[22] An appellant has a difficult task in persuading an appeal Court that the verdict is such as twelve reasonable persons, giving due weight to the presumption of law in favour of the accused’s innocence, could not properly have found. In this case, the appellant cannot discharge that onus because there was clearly evidence upon which the jury could have arrived at its verdict. The matters raised by counsel in this Court are matters which were before the jury, as was the accused’s denial, supported by submissions of the appellant’s counsel. In respect of several of the identification matters upon which counsel relied, there was no independent evidence which would undermine that identification. In the circumstances this ground of appeal must also fail, as must the appeal against conviction.

Sentence appeal

[23] Mr Wilson quite properly, in our view, could not put forward any submissions which suggested that a sentence of eight years for the crime of sexual violation by way of rape was manifestly excessive. He did submit a character reference signed by four Hamilton Somali elders. While we accept the sincerity of this reference, it does not, in our view, entitle this Court to allow the sentence appeal. The sentencing Judge was correct in starting at a sentence of eight years. He had the benefit of hearing the evidence and knowing the severity of the offending. He balanced factors in favour of the appellant against the circumstances of the offending and saw no reason to depart from the starting point of eight years. The sentencing process was appropriate and there is therefore no ground for appeal.

Result

[24] The appeals against both conviction and sentence are dismissed.

Solicitors:
The Crown Solicitor, Auckland