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Balo v The Queen [1975] PNGLR 378 (12 December 1975)

Papua New Guinea Law Reports - 1975

[1975] PNGLR 378 - Fande Balo v The Queen 

[1975] PNGLR 378

SC90

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

FANDE BALO

V

THE QUEEN

Waigani

Frost CJ Raine Saldanha JJ

30-31 October 1975

12 December 1975

CRIMINAL LAW - Confessions and admissions - Record of interview. - Admissibility - Interview conducted in Pidgin - Recorded in English - Read by translating to Pidgin - Acknowledged by accused and mark affixed.

CRIMINAL LAW - Confessions and admissions - Record of interview Admissibility - Instructions of Commissioner of Police[dxx]¹ - Desirability of recording in language of accused.

EVIDENCE - Admissions - What are - Record of interview - Interview conducted in Pidgin - Recorded in English - Read by translating to Pidgin - Acknowledged by accused and mark affixed.

An interview between an accused who did not speak or read English and a police constable was conducted in Pidgin; and recorded in question and answer form by the same police constable in English only: the record of interview was then read to the accused by the police constable translating from English to Pidgin as he read. The accused then stated that it was true and put his mark to each page.

On appeal against conviction and sentence on a charge of attempted rape, on the ground that the record of interview had been wrongly admitted in evidence,

Held

That the record of interview had been properly admitted and the conviction and sentence should be affirmed.

R. v. Fajkovic; and R. v. Zema and Jeanes [1970] VicRp 73; [1970] V.R. 566 followed: Gaio v. The Queen (1960) 104 C.L.R. 419, [1964] P. & N.G.L.R. 263, considered.

Per Frost CJ and Saldanha J: That any argument for exclusion of the record of interview based on the hearsay rule is unreal and unsound, for “what is in truth and in substance taking place is a single conversation” (per Fullagar J in Gaio v. The Queen [1960] HCA 70; (1960-61) 104 C.L.R. 419 at p. 429) between the parties, but if it did infringe the hearsay rule the application of that rule would be inappropriate in the present type of case, to the circumstances of the case. The rule that a person who pursuant to his acceptance of the reading or interpretation of a document adopts the document by marking it, thereby making it his document is appropriate to the circumstances of Papua New Guinea, where the solemnity and significance of attaching a mark to a document, is very well understood.

Per Raine J: “I cannot agree that only a document written in the words spoken, namely, Pidgin, could be relevant, and admissible on a ‘best evidence’ basis, nor do I agree that the rule against hearsay was infringed, and I do not agree that the record of interview remained unacknowledged, and constituted no more than a contemporaneous record that could only be used by the interrogating (police constable), to refresh his recollection, but which could not be admitted as an exhibit.”

Discussion of the desirability where possible of recording interviews in the language used by the accused and the instruction by the Commissioner of Police (4-1)[dxxi]² to this effect.

Per curiam, Frost CJ: If in a criminal trial it is found that the instruction by the Commissioner of Police (4-1) has not been observed, the trial judge should not be slow in the exercise of his discretion to reject as unfair to an accused an English translation of what was said in Pidgin or Motu in a proper case, where it is genuinely disputed by the accused person.

Appeal

This was an appeal against conviction and sentence: the appellant was found guilty of the offence of attempted rape and sentenced to two years’ imprisonment. The principal ground of appeal was that a record of interview (without which the case for the prosecution could not have been proved) was wrongly admitted in evidence.

Counsel

N. H. Pratt, for the appellant.

K. B. Egan, for the respondent.

Cur. adv. vult.

12 December 1975

FROST CJ: This is an appeal against the decision of Williams J given in Port Moresby on 14th February, 1975, whereby the appellant was found guilty of an offence that on 17th September, 1974, in Papua, he attempted to commit rape upon one Martina Kisaka, and was sentenced to two years’ imprisonment.

The point of the appeal concerns the admission in evidence of a record of interview without which the case for the prosecution could not have been proved.

The interview was conducted between Constable Elias Banjui and the appellant, on the night following the alleged offence, at the Boroko police station. It was conducted in Pidgin. The procedure adopted by the constable was to type the question in English then interpret it in Pidgin to the appellant, whose answer in Pidgin was translated and typed in English by the constable. In short, the interview was conducted in Pidgin but recorded only in English, the constable acting as his own interpreter. Upon the completion of the interview the record was read to the appellant, being retranslated into Pidgin. The appellant did not wish to alter anything, and said it was true. On being asked if he would put his mark on each page he said he was willing to do so, and taking the pen he did this.

As Williams J said this procedure has become by no means novel in Papua New Guinea. It is true that there are many “place” languages in Papua New Guinea of which there is no documentary record. But so far as the two main lingua franca are concerned, viz. Pidgin and Hiri Motu, most police speak Pidgin and, outside Papua, in the main towns at any rate there is no dearth of Motu speakers. In cases where either of these languages is used by an accused person there is normally no sufficient reason for not recording the interview in the accused’s language. An instruction has been issued by the Commissioner of Police upon this subject to which I shall later refer.

At the trial objection was taken to the admissibility of the document but the objection was over-ruled. The issue was tried on the voire dire upon which the accused gave evidence denying the truth of the greater part of the record. His evidence was disbelieved and the record admitted. On the trial being resumed the appellant elected not to give evidence and was convicted.

The grounds of appeal are substantially the same grounds of objection which were over-ruled by the trial judge. The first ground of appeal was that in effect the case of Gaio v. The Queen[dxxii]³ was wrongly decided. In that case the High Court had to consider the admissibility of a confession made by an accused charged with murder who was interviewed by a patrol officer through an interpreter. The interpreter being illiterate made no notes of the conversation, which was conducted in Motu, and gave evidence only as to the fidelity of the interpretation and not as to the contents of the conversation. The High Court upheld the decision of Mann CJ in admitting the evidence of the patrol officer of what was told him by the interpreter. It was held that the rule against hearsay had not been infringed. In the opinion of Dixon CJ the translation word by word or sentence by sentence by the interpreter was an integral part of one transaction consisting of communication through the interpreter. On the facts of the case the adequacy of the interpretation was not challenged, nor was the patrol officer’s account of the conversation.

The present case is however distinguishable on the ground that the conversation took place in Pidgin, a language common to both the constable and accused. Accordingly it is concerned, as Williams J held, not with the admissibility of confessional material as such but with the different question of the admissibility of a written document. The same view was taken by Neasey J in Curtis v. The Queen[dxxiii]⁴ a decision of the Court of Criminal Appeal of Tasmania in which the accused, an illiterate, put his mark to a record of interview and it was admitted, the Court held properly, upon evidence that it had been read to him and acknowledged to be true.

But as the question whether this Court should continue to be bound by Gaio v. The Queen[dxxiv]⁵ was fully argued it is proper to determine it. Mr. Pratt’s argument in effect adopted the criticism of the High Court decision by Professor Cross in an article “The Periphery of Hearsay” (1969) 7 M.U.L.R. pp. 3-5, and by the author of a note in the Criminal Law Quarterly, Vol. 12, p. 25, on the Canadian case of Reg. v. Kores[dxxv]⁶. That was a decision of the Court of Criminal Appeal of British Columbia upholding the admissibility of a confession, made through an interpreter by a respondent who spoke only Greek, and taken down in English. In the course of its judgment the Court considered Gaio v. The Queen[dxxvi]⁷ and agreed with it. Mr. Pratt’s submission that it is contrary to the hearsay rule, however, is supported by Wigmore on Evidence, 3rd ed., s. 668, p. 1810. Upon consideration I agree with Fullagar J’s view that the argument based on the hearsay rule is unreal and unsound, and that “what is in truth and in substance taking place is a single conversation” (at p. 429) between the parties. Mr. Pratt also relied on the “best evidence” rule, but that rule has now lost its force. There is a further reason, in my opinion, not to depart from the High Court’s decision, for, as Professor Cross acknowledged, because of the multiplicity of languages in Papua New Guinea the aid of interpreters is essential to the work of the police and the administration of justice. As a general rule any procedure other than the present is not practicable. Taking this view, he recognized that there would be grounds for the creation of a new exception to the hearsay rule.

Under the Constitution the law to be applied and enforced consists of the principles and rules of common law in force in England except to the extent that they are inapplicable and inappropriate to the circumstances of the country from time to time — see Sch. 2.2. If, contrary to my opinion, Gaio v. The Queen[dxxvii]⁸ does infringe the hearsay rule the application of the rule would in the present type of case be inappropriate, in my view, to the circumstances of the country. For this reason also the rule in Gaio v. The Queen[dxxviii]⁹ should not be disturbed.

The second ground of appeal relates to the admissibility of the record of interview as a written document. The question is whether the action of the appellant in affixing his mark to the document after it had been translated into Pidgin by the constable and acknowledged to be true constituted sufficient adoption of the document to make it admissible. The point is not so important in trials by a judge sitting alone as in Papua New Guinea, for the document recording what was said in an interview may be used to refresh the witness’ memory — see R. v. Layer [dxxix]¹⁰; R. v. Jones [dxxx]¹¹; cited in Curtis v. The Queen[dxxxi]¹² per Crawford J and Neasey J It is immaterial, in my opinion, that the document is not written in the language of the accused. In jurisdictions where there is trial by jury, different considerations arise. For it is possible that jurors may be more influenced by a document which, if it is admitted, is in front of them in the jury room and can be read and re-read, than by their recollection of oral evidence only, even though in exactly the same terms and given after the witness has refreshed his memory.

A document is admissible if the document as such is acknowledged or adopted by the accused. R. v. Lapuse [dxxxii]¹³. If it is read aloud by an accused person and acknowledged to be true that is sufficient adoption of the document even if the accused refuses to sign it. Dawson v. The Queen [dxxxiii]¹⁴; R. v. Harris [dxxxiv]¹⁵. A document is admissible if it is merely read over and then signed by the accused person if it also contains a statement that it is a correct or accurate record — R. v. Clark [dxxxv]¹⁶. But a document is not admissible where the truth of its contents is admitted by an accused after it was read out aloud by a police officer and not read himself by the accused and he had refused to sign it or acknowledge it in any way as a document. R. v. Kerr (No. 1)[dxxxvi]¹⁷; R. v. Lapuse [dxxxvii]¹⁸. There is no sufficient adoption if the accused simply reads over the document without comment — R. v. Vandine [dxxxviii]¹⁹.

The point of the present case is that the record of interview was read in Pidgin by the constable translating from English as he read. It was thus contended by Mr. Pratt that in placing his mark on the document he was acknowledging the truth of what was read out and not the document itself, which was in English.

In the case of an illiterate, which is analogous to the present type of case, there is early English authority that the document is admissible upon proof that it was read over to the accused and acknowledged by him to be true and the accused put his mark to it. R. v. Lambe [dxxxix]²⁰; R. v. Chappel [dxl]²¹. This view was adopted by the majority of the Court of Criminal Appeal in Curtis v. The Queen [dxli]²². The law was exhaustively examined and the cases reviewed, both by Neasey J one of the majority, and also by Crawford J who dissented.

The difficulty that Crawford J felt is expressed in the following passage:

“... On the one hand, in the English cases, judges did usually permit documents to be admitted if read to the accused and acknowledged to be true, but in no case was it submitted to the Court that this was only an acknowledgement of the words spoken. The question was never decided on any principle but rather as a practice in a country which was then substantially composed of illiterate persons.”[dxlii]²³.

The view of that learned judge was in effect that, despite the early English cases, in the case of an illiterate or foreigner who can rely for knowledge of the contents of a doucment only on the words spoken by another, there can be no acknowledgement or adoption of the document as such.

But in my opinion that view fails to take account of the significance of the deliberate act where it takes the form of affixing a mark to a document, which the law holds is sufficient adoption of a document. There must of course be sufficient proof of the communication of the contents, but there is no reason why another should not read the document aloud.

The rule and practice in Victoria is the same as in England in the last century. It has been applied in two cases, both decided by Gowans J, in which the interview was taken through an interpreter, recorded only in English, and on translation back to the accused, who did not sufficiently understand English, was acknowledged by him to be true and signed. R. v. Fajkovic [dxliii]²⁴; R. v. Zema and Jeanes [dxliv]²⁵. I cannot agree with Crawford J in Curtis v. The Queen[dxlv]²⁶ that those cases are contrary to R. v. Kerr (No. 1)[dxlvi]²⁷ or R. v. Lapuse[dxlvii]²⁸. With respect also the dictum of Dixon CJ in Dawson v. The Queen[dxlviii]²⁹ that if a witness never saw the paper as a writing, he cannot give evidence of its contents because he is only giving an inference or opinion, was not directed to the present problem.

In my opinion the law is correctly laid down by Gowans J in the following passage from R. v. Zema and Jeanes [dxlix]³⁰. After referring to R. v. Kerr (No. 1)[dl]³¹, R. v. Lapuse[dli]³² and Dawson v. The Queen[dlii]³³ his Honour said:

“There is a difference in the present case because the accused did not read the document itself aloud (if at all). What was said aloud was a translation, or a purported translation, of what was written. But what distinguishes this case further from the others I have mentioned is that the accused wrote on the document a signed acknowledgement of its truth. If he had been able to read English, then whether he read the document or not, that would be a sufficient acknowledgement or adoption of it. But it is said the result is different because the circumstances show that the accused relied for his understanding of the contents upon the alleged translation spoken to him.

I think the matter can be tested by considering the case of an illiterate person who could neither read nor write, but who, after having had the document read over to him, had affixed his mark thereto. Would such a document be admissible as confessional evidence? In R. v. Kerr (No. 1), supra, at (V.R.) p. 212, O’Bryan J, said: ‘There are two kinds of admissions: admissions in writing and verbal admissions. In order to get a written admission in, you must get some adoption of the paper itself. That adoption may be in many ways: by the signing of the document, by the placing of a mark on the document, by the reading of a document.’ This appears to accept the position that the placing of a mark on a document is sufficient to make it a written admission. I can see no difference between the case where a confessional document of itself is unintelligible to the accused by reason of his being blind or illiterate, and that where it is unintelligible by reason of its being in a language foreign to him. In either case he must rely upon what the apparent reading of it tells him of the contents. I do not believe it to be the law that a blind or illiterate person, or a foreigner ignorant of the language, cannot, in any circumstances, sign or authenticate a document. It is clear it is otherwise. If such a person accepts a proper reading or interpretation of the document, and marks it as his, he is bound. If a person accepts a true interpretation of a record of interview, he is in no different position from that which flows from his acceptance of an interpretation, duly proved, in the questioning itself: see Gaio v. The Queen [1960] HCA 70; (1960), 104 C.L.R. 419; [1961] A.L.R. 67. If pursuant to his acceptance of the reading or interpretation he adopts the document by marking it, he makes it his document. It then becomes admissible accordingly. The weight of the evidence by which this result is reached is a matter for the jury.”

That rule, in my opinion, is appropriate to the circumstances of Papua New Guinea, where the degree of illiteracy at its present stage of development is comparable with that prevailing in England in the last century, and where the solemnity and significance of attaching a mark to a document, even in outlying parts of the country, is very well understood.

In my opinion therefore the record of interview was propery admitted.

The remaining ground of appeal relates to the weight placed on the record of interview by the trial judge. Having rejected the evidence of the accused on the voire dire, I consider that the judge was entitled to act on the admissions of the accused. There can be no doubt that the record of interview supports the conviction. Reading through the long record — it contains 177 questions — whilst it is true that, as Mr. Pratt submitted, the English is in some cases quaint, there are many indications of its truth.

For all these reasons I would dismiss the appeal and affirm the conviction.

However, it would be an omission if the Court did not advert to the clear breach on the part of Constable Elias Banjui to observe the instruction by the Commissioner of Police. I would refer to its terms.[dliii]34

As was said by the Supreme Court of Victoria in R. v. Oliver [dliv]³⁵: “It is fundamental to the maintenance of public confidence in the administration of criminal justice that the conditions essential to a fair and satisfactory trial should be strictly observed”. This observation was prompted by the practice which by then had become common in Victoria to have alleged admissions of accused persons tendered in the form of an unsigned record of interview. The practice which causes concern in this jurisdiction is failure to record the language of the accused where that language is Pidgin or Motu where there is usually no practical excuse for the breach.

The Commissioner’s instruction is clearly designed to secure fairness for an accused person. In England where a similar administrative instruction has been made for the interrogation of foreigners it is noted that, “Apart from the question of apparent unfairness, to obtain the signature of a suspect to an English translation of what he said in a foreign language can have little or no value as evidence if the suspect disputes the accuracy of this record of his statement”. Archbold, 37th ed., pp. 424-425.

I would not wish to weaken in any way by my comments the force of the instruction by the Commissioner of Police which I agree is necessary in the interests of fairness. However, if in a case before the National Court the instruction is found not to have been observed, whilst the broad outlines of an account given in another language are unlikely to be falsely or mistakenly recorded in English by a police officer, the trial judge should not be slow in the exercise of his discretion to reject as unfair to the accused the English translation of what was said in Pidgin or Motu in a proper case where it is genuinely disputed by the accused person. I have particularly in mind cases where the record deals with crucial details such as intent, consent in cases of rape, and the like.

RAINE J: I have read in draft the judgment of the Chief Justice and thus there is no need for me to set out the facts.

I only intend to deal with the first two grounds of appeal. In my opinion the last ground must fail, it only goes to weight. Mr. Pratt’s six or seven points were not without substance, but I imagine they were put to the learned trial judge, and, whether they were or not, I have no doubt his Honour considered them.

The first ground of appeal really comes down to a consideration of the apparently competing views of three very experienced judges, namely, Gowans J in R. v. Fajkovic [dlv]³⁶, R. v. Zema and Jeanes [dlvi]³⁷, as opposed to Crawford J in Curtis v. The Queen[dlvii]³⁸ and O’Bryan J in R. v. Kerr (No. 1)[dlviii]³⁹. Crawford J was the dissenting judge in Curtis [dlix]⁴⁰. Neasey and Nettlefold JJ held quite contrary views. The Tasmanian judgments are particularly helpful and, I must own, saved me a lot of work, because about all the leading cases are discussed in detail.

Tied in with Mr. Pratt’s argument is an attack by him on the majority judgments of a very strong court in the well-known case of Gaio v. The Queen [dlx]⁴¹, where McTiernan J was the sole dissentient. Gaio[dlxi]⁴² has been followed in Canada. See Reg. v. Kores[dlxii]⁴³ where the judgment appealed from appears at p. 235 of the same volume.

The trial judge in the instant case inclinded to the view that Gaio[dlxiii]⁴⁴ did not really apply in the circumstances. With this I largely agree, but it has some peripheral application. The distinction between this case and Gaio[dlxiv]⁴⁵ is that here only two people were involved in the record of interview, no interpreter was interposed, for one was unnecessary, between the interrogator and the suspect, as was necessary in Gaio [dlxv]⁴⁶. But in this case the interrogator was, in a sense, an interpreter. It suited him to record the interview in English, a language not read or spoken by the suspect, the appellant. Thus, to an extent, there was some telescoping of the interrogator’s and interpreter’s roles.

Mr. Pratt not only says that the turning of the language used in the dialogue into a different language in the written document makes the document inadmissible as a document, but asserts that the practice is unfair. Counsel submits that inevitably, with the passage of time, and the intervention of other cases, the words uttered by the accused are virtually lost for ever. He draws attention to the fact that Pidgin words and phrases have different shades of meaning, and he points out how hard it is to cross-examine the police where there is a dispute as to what was truly said, particularly where the accused is not uttering a flat denial, but, rather, is saying that he put things in another way where, as is so often the case, there is both confession and avoidance.

There is a good deal to be said for this, and the Chief Justice has set out the Police Commissioner’s instruction on the subject in his judgment.

Both counsel agree that the Force is split on this issue. Administratively it involves a lot of extra work, taking down the Pidgin or Motu, or place talk, and then making out a copy in English. This was a very long record of interview, even the shortest ones I am accustomed to see generally run into a third page. And this is not all. Children here go to what are really English schools. They become used to writing in English. It is interesting to me to see that my servant, and the one who preceded him, write excellent English letters and messages, in fact they really write better English than they speak. I understand that many police express themselves better in English in their writing and are not confident when writing Pidgin. I can quite understand this, in a multi-lingual country, where, and it never ceases to amaze me, many fairly uneducated persons speak three languages, whereas very few Australians have mastered two, let alone mastering English.

It could well be that where a police officer is more proficient when he writes in English that a suspect will get a fairer and a better deal than if the officer struggles to write down the other language spoken. This is not to say I am not aware of the problems posed by Mr. Pratt. However, criminal trials are not games, whilst a man on his trial is entitled to as fair a trial as possible, so is the public at large entitled to feel that offenders should receive their just desserts.

May I suggest a compromise, the one I suggested in argument? A good deal of a record of interview is generally concerned with necessary but largely formal matters, and with lead-up questions. About these there is often no dispute. Many facts disclosed in records of interview, are matters of common ground. I really see no objection to them being recorded in English. It will save time if the interrogator writes English with greater confidence. This is important, because a long interview is a strain on all those involved. The shorter the time the better are the police and suspects able to do themselves justice.

So often in quite long records of interview, the critical portions are comprised of only a few lines, in rape, where consent is the usual defence, the accused’s description of the incident in the last minute or so before penetration, and words that he says were uttered by the prosecutrix; in wilful murder, the incidents giving rise to provocation, or the words spoken in the interview by an accused indicating that whilst he meant to hurt the deceased he never meant to kill, or words suggesting death was accidental, often a few lines only, but those few lines are often the very crux of the case.

My suggestion is that these critical portions should be recorded in the language spoken during the interview, unless, of course, the interrogator simply cannot do other than write in English, and has nobody available to do it for him. I would also suggest that it be kept in mind that when Pidgin is used there are well-known words and phrases that have to be treated with very great care. There is a big difference between “bagarap” and “bagarap true”, or “kilim em” and “kilim i dai”. These are very simple examples. There are many cases where the distinctions are much more subtle.

I now turn to the legal submissions. With great respect to O’Bryan J, I do not agree with what he said in Kerr[dlxvi]⁴⁷ at p. 212. In my opinion Kerr did adopt the document by acknowledging that what was read to him was correct. It is a question of fact for the tribunal of fact to decide, namely, whether what was read out correctly represented the words recorded in the document. Gowans J in Fajkovic[dlxvii]⁴⁸ and Zema and Jeanes [dlxviii]⁴⁹, distinguished Kerr [dlxix]⁵⁰. Whilst the facts were different, I do not rest my decision on the factual distinction. In any event, I agree with Gowans J and I believe that that learned judge, and I, are lent some support by the majority judgments of the High Court in Gaio [dlxx]⁵¹.

I might add that I do not believe, as a matter of law, that where an illiterate marks the document, or where a man signs it, where it is written in a language he does not understand, without more, that the document is thereby deemed to have been acknowledged and adopted. However, the exercise is not pointless, as it could be helpful factually, if the document has been read over. It goes to the probabilities that, as alleged, the document was read over to the suspect. It is not decisive, but it is extremely persuasive.

Thus, in my view, I cannot agree with learned counsel for the appellant that only a document written in the words spoken, namely, Pidgin, could be relevant, and admissible on a “best evidence” basis, nor do I agree that the rule against hearsay was infringed, and I do not agree that the record of interview remained unacknowledged, and constituted no more than a contemporaneous record that could only be used by the interrogator, Constable Elias Banjui, to refresh his recollection, but which could not be admitted as an exhibit.

I would dismiss the appeal.

SALDANHA J: It is not disputed that the appellant could not have been convicted of attempted rape if the record of interview which Constable Banjui had conducted with the appellant, had not been admitted in evidence. The appellant contends that this evidence was inadmissible as being a breach of the rule against hearsay. The interview was in the question and answer form. The constable and the appellant both spoke in Pidgin but each question and answer was recorded by the constable in English.

This case is similar to the case of Gaio v. The Queen[dlxxi]⁵² which was an appeal to the High Court of Australia from a decision of the Supreme Court of the Territory of Papua New Guinea, as it then was. In Gaio’s case[dlxxii]⁵³ the accused was convicted of murder almost entirely on the evidence of what he said to a patrol officer who interviewed him through an interpreter. The patrol officer spoke English. The accused spoke only Motu. The interpreter translated to the accused into Motu what the patrol officer said in English and translated to the patrol officer into English what the accused said in Motu. The patrol officer typed in English the questions he asked and the answers given by the accused after they had been interpreted into English. The interpreter being illiterate made no notes. At the trial the patrol officer gave oral evidence of the interview after refreshing his memory from his type-written record. The interpreter gave evidence of the fidelity of the interpretation but not the contents of the interview. The majority of the High Court of Australia held that the evidence of the patrol officer had been rightly admitted and did not infringe the rule against hearsay.

Gaio’s case[dlxxiii]⁵⁴ was followed by the British Columbia Court of Appeal in Reg. v. Kores [dlxxiv]⁵⁵. In this case the accused, who was a Greek, spoke no English. A Greek interpreter was used, who, though literate in Greek made no notes. A stenographer took down in shorthand the questions asked by a police officer in English. These were translated to the accused into Greek by the interpreter. The stenographer also took down in shorthand the answers given by the accused which the interpreter translated into English. Later the stenographer made a transcription of the shorthand notes. It was held that the stenographer could give oral evidence of the interview after refreshing her memory from the transcript provided that the interpreter testified that he correctly and faithfully translated all that was said, and that such evidence would not be a breach of the rule against hearsay.

The South African case of Rex. v. Mutche[dlxxv]⁵⁶ is very similar. In this case a native accused person who spoke only a native language was interviewed by an English-speaking police officer through an interpreter. The interpreter made no notes and the police officer recorded the interview in English. At the trial the police officer gave evidence of the interview with the accused, presumably orally after refreshing his memory from the notes he had made. The interpreter also gave evidence. He could not recollect what had been said, but more importantly, he failed to say that he had interpreted correctly and faithfully all that had been said. On appeal the South African Appellate Division held that the omission on the part of the interpreter to say that he had correctly and faithfully interpreted all that had been said was fatal and rendered the police officer’s evidence inadmissible, but that, if the interpreter had deposed to the fidelity of the interpretation the evidence would have been admissible and would not have infringed the rule against hearsay.

Professor Cross in an article entitled “The Periphery of Hearsay” ((1969) 7 M.U.L.R. 4) sets out the procedure that should be followed when an interpreter is used and states:

“The usual way of dealing with interrogations at which an interpreter assists is both for the interrogator and the interpreter to take notes and to give evidence. On facts such as those of Gaio’s case ((1960) [1960] HCA 70; 104 C.L.R. 419) C, having refreshed his memory from his notes, would depose to what A had told him to say to B and to what B said in reply. C would also depose to what he told A, and A would give confirmatory evidence. Strictly the interrogation could be proved without A’s evidence. I appreciate that this procedure is not possible in Papua and New Guinea, the jurisdiction from which the appeal in Gaio’s case ((1960) [1960] HCA 70; 104 C.L.R. 419) was brought, because the native interpreters do not take notes and soon forget what happened. There may be good grounds for creation of a new exception to the hearsay rule to meet such a situation, but this is not how the High Court looked at the matter.”

It will be noticed that Professor Cross concedes that the procedure he has outlined is not possible in Papua New Guinea. He does not question the correctness of the decision but criticizes the High Court for saying that the decision does not infringe the rule against hearsay when in fact it does. He gives his reasons at p. 14 as follows —

“Gaio v. The Queen ((1960) [1960] HCA 70; 104 C.L.R. 419) and R. v. Rice ([1963] 1 Q.B. 857) show that the courts are all too prone to hold that the rule does not apply, rather than to hold that the case comes within an exception to it; this is not the purely pedantic criticism that it sounds because far greater uncertainty is likely to be produced by doubts concerning what a rule is than by doubts concerning the number of exceptions to it.”

The author of an article in the Criminal Law Quarterly Vol. 12 makes a similar point regarding the case of Reg. v. Kores[dlxxvi]⁵⁷. The following passage appears at p. 252 —

“Davey CJBC. states:

This case has nothing to do with hearsay at all. It is the transaction itself that is in the course of being proved; that is, it is the statements made by the (accused) to the interrogating officer which are in question and the evidence of the interpreter and of the stenographer is introduced only to show what was said on that occasion by the officer and by the respondent.

But surely that can not be correct. Evidence of what was said does involve a hearsay problem if it is the truth of what was said that is in issue rather than merely the fact that it was said. A confession is only relevant if it is introduced to prove the facts contained therein.

It is thus suggested that the Court could have agreed with the submission of the accused and ruled the statement inadmissible; or invented a further exception to the hearsay rule or adopted what Cross calls the ‘unrealistic’ solution of treating the stenographer and interpreter as one person. But to ignore the analytical problem is not very satisfactory.

No great difficulty is involved if the Court accepts the accused’s argument. In future interpreters should keep their own records or check and approve the stenographer’s record at, or close to the time when it was made. There could not, then, be any objection to the note or record being used as present memory revived or past recollection recorded.”

The procedure recommended is a counsel of perfection as far as conditions in Papua New Guinea are concerned, because, not only are many interpreters not literate in the language used by the suspect or accused, but also because, of the seven hundred odd languages in existence many have not yet been reduced to writing. Whether Gaio’s case[dlxxvii]⁵⁸ is not an infringement of the rule against hearsay or merely an exception to that rule, so far as circumstances in Papua New Guinea are concerned it is good law and makes good sense.

One difference between Gio’s case[dlxxviii]⁵⁹ and the instant case is that whereas in Gaio’s case[dlxxix]⁶⁰ the patrol officer gave oral evidence after having refreshed his memory from the written document in the instant case the written document itself was admitted in evidence. Counsel for the appellant, contends that as the appellant was illiterate his placing his mark on the record of interview could not amount to an adoption of that record, and, therefore, the document was inadmissible. He relies upon the dissenting judgment of Crawford J, in Curtis v. The Queen [dlxxx]⁶¹. The majority of that Court, however, relying upon R. v. Zema and Jeanes[dlxxxi]⁶² and R. v. Fajkovic[dlxxxii]⁶³ took a contrary view. His Honour the trial judge also relied upon those two cases. With respect I agree with this view for reasons given by the learned Chief Justice whose judgment I have had the advantage of reading.

What was objected to in Curtis’ case[dlxxxiii]⁶⁴ was the admission of the document containing the confessional material. It was not disputed that the police officer after refreshing his memory from the written document could have given oral evidence of its contents. Nor is it disputed that in most, if not all, of those cases where it has been held that documentary evidence is inadmissible oral evidence could have been given by the interrogating officer after refreshing his memory from the written document. In the instant case Constable Banjui could have refreshed his memory from the record of interview and given oral evidence of its contents.

The distinction between admitting a document containing confessional material and admitting oral evidence of the contents of such a document is important in jurisdictions where a trial judge sits without a jury, for this reason, that, whereas when the document itself is admitted the jury can take it with them when they retire to consider their verdict, if oral evidence only has been given the jury take with them only what they remember of the oral evidence, which may be very little. To insist on this distinction in a jurisdiction such as ours, where the trial judge sits without a jury, is unrealistic, the only effect of which is to make a short-staffed and over-worked judiciary take down laboriously in long-hand a series of questions and answers when the whole process can be shortened and exactly the same object achieved by putting in the document itself.

Another difference between Gaio’s case[dlxxxiv]⁶⁵ and the instant case is that whereas an interpreter was used in Gaio’s case[dlxxxv]⁶⁶ no interpreter was used in the instant case, Constable Banjui having, as it were, acted as his own interpreter. As Constable Banjui and the appellant spoke to each other in Pidgin the question of hearsay does not arise. Moreover if a record of interview was held to be admissible when an interpreter was used a fortiori it would be admissible where no interpreter had been used.

I come finally to appellant’s contention that the interview should have been recorded in Pidgin instead of English. It is obviously desirable that where possible the interview should be recorded in the language used by the accused. Should disputes arise as to what the accused said his exact words in the language used by him would be available. It could happen in a given case that the exact words used by the accused could have an important bearing on the question of his guilt or innocence, and, in such a case the trial judge would be justified in excluding a record of interview, in the exercise of his discretion, on the ground that the interview had not been recorded in the language used by the accused when this could have been done. The Commissioner of Police has issued instructions for the procedure which police officers should follow when interviewing suspects or accused persons, and, police officers would do well to follow those instructions. Constable Banjui was clearly in breach of par. 4.1(ii) of the “Instructions by Commissioner of Police” which states:

“In those cases where a person is unable to write, the interview should be recorded wherever possible in the language used by the defendant ...”

But failure to record an interview in the language used by the accused does not render the record inadmissible. It merely affects the weight to be attached to it. The court has a discretion to exclude it in a proper case. In this case his Honour the trial judge chose not to exclude it except for a few questions and answers. With respect the trial judge did not err either in admitting in evidence the record of interview or in giving it the weight he did.

I would dismiss the appeal.

Appeal dismissed.

Conviction and sentence affirmed.

Solicitor for the appellant: N. H. Pratt, Acting Public Solicitor.

Solicitor for the respondent: L. W. Roberts-Smith, Public Prosecutor.

ence>[dxx]Infra p. 385 footnote.

[dxxi]Footnote p. 385.

[dxxii](1960) 104 C.L.R. 419; [1964] P. & N.G.L.R. 263.

[dxxiii](Unreported) Tas. Court of Crim. App., S. No. 12/1972 List “A” 23rd March, 1972.

[dxxiv](1960) 104 C.L.R. 419; [1964] P. & N.G.L.R. 263.

[dxxv] [1970] 5 C.C.C. 55; (1970) 12 Cr. L.Q. 235.

[dxxvi](1960) 104 C.L.R. 419; [1964] P. & N.G.L.R. 263.

[dxxvii](1960) 104 C.L.R. 419; [1964] P. & N.G.L.R. 263.

[dxxviii](1960) 104 C.L.R. 419; [1964] P. & N.G.L.R. 263.

[dxxix](1722) 8 Mod. 82, at p. 89; 88 E.R. 64, at pp. 69-70.

[dxxx]Carr. Supp. 13 noted at 1 Lewin 46; 168 E.R. 954.

[dxxxi](Unreported) Tas. Crim. App., S. No. 12/1972 List “A” 23rd March, 1972.

[dxxxii][1964] V.R. 43.

[dxxxiii][1961] HCA 74; (1961) 106 C.L.R. 1, at p. 13, per Dixon CJ

[dxxxiv][1970] 1 N.S.W.R. 280.

[dxxxv][1970] 1 N.S.W.R. 289.

[dxxxvi][1951] V.R. 211.

[dxxxvii][1964] V.R. 43.

[dxxxviii][1968] 1 N.S.W.R. 417.

[dxxxix](1791) 2 Leach 552; 168 E.R. 379.

[dxl](1834) 1 M. & Rob. 396; 174 E.R. 136.

[dxli](Unreported) Tas. Court of Crim. App., S. No. 12/1972 List “A” 23rd March, 1972.

[dxlii](Unreported) Tas. Court of Crim. App., S. No. 12/1972 List “A” 23rd March, 1972.

[dxliii][1970] V.R. 566.

[dxliv][1970] VicRp 73; [1970] V.R. 566, at p. 569.

[dxlv](Unreported) Tas. Court of Crim. App., S. No. 12/1972 List “A” 23rd March, 1972.

[dxlvi][1951] V.R. 211.

[dxlvii][1964] V.R. 43.

[dxlviii](1961) 106 C.L.R. 1

[dxlix][1970] VicRp 73; [1970] V.R. 566, at pp. 568-569.

[dl][1951] V.R. 211.

[dli][1964] V.R. 43.

[dlii](1961) 106 C.L.R. 1.

[dliii]Instruction by Commissioner of Police.

4-1. Statements by Defendants.

When recording statements to Police by suspected persons, the following procedure will be observed at all times:—

(i) Where possible the person interviewed will be asked after any necessary caution if he wishes to write his own statement in a language of his choice.

(ii) In those cases where a person is unable to write, the interview should be recorded wherever possible in the language used by the defendant, e.g. in many instances the suspected person and the interviewing Officer will be conversant with Pidgin English, and it is in this language that the interview should be recorded. On the other hand it may be that the interviewing Officer is conversant with the local language of the defendant, and is therefore able to record the statement in that language.

(iii) In those cases where an interpreter is necessary the interview should be recorded in the language used by the interpreter to the interviewing officer.

(iv) Following any interview requiring translation into English, such translation shall be prepared by the Officer in triplicate for the information of the parties involved in any subsequent prosecution.

[dliv][1968] VicRp 27; [1968] V.R. 243, at p. 247.

[dlv][1970] V.R. 566.

[dlvi][1970] V.R. 566.

[dlvii](Unreported) Tas. Court of Crim. App., S. No. 12/1972 List “A” 23rd March, 1972.

[dlviii][1951] V.L.R. 211.

[dlix](Unreported) Tas. Court of Crim. App., S. No. 12/1972 List “A” 23rd March, 1972.

[dlx](1960) 104 C.L.R. 419; [1964] P. & N.G.L.R. 263.

[dlxi](1960) 104 C.L.R. 419; [1964] P. & N.G.L.R. 263.

[dlxii][1970] 5 C.C.C. 55; (1970) 12 Crim. L.Q. 235.

[dlxiii](1960) 104 C.L.R. 419; [1964] P. & N.G.L.R. 263.

[dlxiv](1960) 104 C.L.R. 419; [1964] P. & N.G.L.R. 263.

[dlxv](1960) 104 C.L.R. 419; [1964] P. & N.G.L.R. 263.

[dlxvi][1951] V.L.R. 211.

[dlxvii][1970] V.R. 566.

[dlxviii][1970] V.R. 566.

[dlxix][1951] V.L.R. 211.

[dlxx](1960) 104 C.L.R. 419; [1964] P. & N.G.L.R. 263.

[dlxxi](1960) 104 C.L.R. 419; [1964] P. & N.G.L.R. 263.

[dlxxii](1960) 104 C.L.R. 419; [1964] P. & N.G.L.R. 263.

[dlxxiii](1960) 104 C.L.R. 419; [1964] P. & N.G.L.R. 263.

[dlxxiv][1970] 5 C.C.C. 55; (1970) 12 Crim. L.Q. 235.

[dlxxv][1946] A.D. 874.

[dlxxvi][1970] 5 C.C.C. 55; (1970) 12 Crim. L.Q. 235.

[dlxxvii](1960) 104 C.L.R. 419; [1964] P. & N.G.L.R. 263.

[dlxxviii](1960) 104 C.L.R. 419; [1964] P. & N.G.L.R. 263.

[dlxxix](1960) 104 C.L.R. 419; [1964] P. & N.G.L.R. 263.

[dlxxx](Unreported) Tas. Court of Crim. App., S. No. 12/1972 List “A” 23rd March, 1972.

[dlxxxi][1970] V.R. 566.

[dlxxxii][1970] V.R. 566.

[dlxxxiii](Unreported) Tas. Court of Crim. App., S. No. 12/1972 List “A” 23rd March, 1972.

[dlxxxiv](1960) 104 C.L.R. 419; [1964] P. & N.G.L.R. 263.

[dlxxxv] (1960) 104 C.L.R. 419; [1964] P. & N.G.L.R. 263.